Ex Parte Black

457 S.W.2d 919

• Court: Court of Criminal Appeals of Texas
• Decided: September 23, 1970
• Docket: 43186
• Status: Published

Opinions

OPINION

WOODLEY, Presiding Judge.

This is a post conviction habeas corpus proceeding in which the petitioner Raymond Black seeks release from confinement in the Texas Department of Corrections.

He attacks the judgment of conviction in Cause No. 7391 in the District Court of Burleson County in which, on December 6, 1965, petitioner entered a plea of guilty before a jury and his punishment was assessed at life.

The present judge of the District Court in which the conviction was had appointed able counsel to represent the petitioner and a hearing was held.

The record of such hearing and the findings and conclusions of the District Judge, which are favorable to petitioner, were forwarded to this court pursuant to Art. 11.07 Vernon’s Ann.C.C.P. The case was filed and submitted on brief and oral argument of petitioner’s court appointed counsel.

The indictment in said Cause No. 7391 alleged that on or about the 14th day of November, 1965, Raymond Black did voluntarily and with malice aforethought kill Velma Ryan by shooting her with a pistol. A second paragraph of the indictment alleged a prior final conviction for murder in the same court.

It is clear from the record and from petitioner’s brief that the findings and conclusions of the hearing judge are predicated upon the erroneous theory that the punishment was enhanced under Art. 64 P.C. by reason of the prior conviction for the offense of murder in the same court in 1954.

The charge of the court in the murder case in which appellant pleaded guilty re-fleets that the jury was instructed to find the defendant guilty “and assess his punishment at death or confinement in the State Penitentiary for life, or confinement in the Penitentiary for any term of not less than two years.”¹

Petitioner was sentenced in Cause No. 7391 to “confinement in the State Penitentiary for a term of not less than two (2) years nor more than life.” ²

Jack C. Simpson, a duly licensed lawyer with a law degree from Baylor University, then practicing his profession in Burleson County, was appointed by the court to represent petitioner at his trial on December 6, 1965.³

After conferring with and being advised by his counsel, waiver of the ten days time to prepare for trial was filed, 12 jurors were summoned and impaneled and a plea of guilty was entered.

The judgment recites that the defendant (petitioner) in person in open court pleaded guilty to the charge contained in the indictment; that he was admonished by the court of the consequences of said plea and he persisted in pleading guilty, “and it plainly appearing to the court that the defendant is sane, and that he is uninfluenced in making said plea by any consideration of fear, or any persuasion or delusive hope of pardon prompting him to confess his guilt, the said plea of guilty is by the Court received * *

In his testimony at the habeas corpus hearing, on direct examination petitioner stated that he told his court appointed trial counsel prior to trial that he “had murdered, you know,” — “He kn owed I was charged, you know, with murder because I had killed my wife.”

“Q. Did you plead ‘guilty’ or ‘not guilty’?

“A. I plead guilty to murder because I did that.

“Q. * * * did the Court talk to you about what your possible sentence could be in this case ? Did the Judge talk to you?

“A. The Judge did.

“Q. And what did the Judge say?

“A. The Judge offered me the chair first.

“Q. Speak up.

“A. He offered me the electric chair and then he said life, and I accepted life because I didn’t have no money or no help.

* * * * * *

And I kn owed that the witnesses and all had told it like it was.

“Q. Did Mr. Simpson talk to you about your case ?

“A. No, sir.

“Q. What did he tell you to do ?

“A. He didn’t tell me anything. We sit there, and when we was talking he said, ‘Don’t say anything.’

“Q. He told you not to say anything ?

“A. Yes, sir.”

On cross-examination at the hearing he testified in part:

“Q. You made a statement — you gave a confession, didn’t you?

“A. Yes, sir, I gave a confession on this but it was supposed to be seven witnesses.

In other words, this crime was committed in the presence of seven people? Q-

“A. But at the time * * *

“Q. Don’t go into that; just answer the question. Mr. Minton will ask you any question about that, that he desires, I’m sure. In other words, you committed the crime in the presence of witnesses?

“A. Seven witnesses was supposed to know something about it.

“Q. And you gave a statement, did you not?

“A. Yes, sir.

“Q. And you knew what you were charged with?

“A. I knew I was charged with murder.”

The facts that his court appointed counsel had never represented a litigant in a contested criminal case before a court or before a jury; that time for preparation for trial was waived; that counsel conferred very briefly with his client; that only 12 veniremen were summoned and that the prior conviction alleged in the indictment was not a final conviction because the sentence was suspended, do not sustain the finding of the District Judge that petitioner is not lawfully confined and is entitled to be released to the custody of the Sheriff of Burleson County to stand trial on the indictment in Cause No. 7391.

The opinions of the Supreme Court of the United States in McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763; Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747; and Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785, handed down May 4, 1970, sustain our conclusion that under the facts petitioner’s guilty plea entered with assistance of counsel, though it may have been induced by his prior voluntary confession and though motivated by a desire to avoid the death penalty, was a voluntary plea and his confinement under sentence of not less than two years nor more than life is not unlawful.

The relief sought is denied.

Rehearing denied.

1 .Art. 1257 Vernon’s Ann.P.C. provides: “The punishment for murder shall be death or confinement in the penitentiary for life or for any term of years not less than two.”

Art. 64 V.A.P.C. provides: “A person convicted a second time of any offense to which the penalty of death is affixed as an alternate punishment shall not receive on such second conviction a less punishment than imprisonment for life in the penitentiary.”

2 . Such sentence complied with the indeterminate sentence statute, Art. 775 C.C.P. (1925) now Art. 42.09, V.A.C.C.P., which does not apply to a sentence enhanced under Art. 64 P.C.

3 . The statute authorizing the waiver of a jury in a capital ease (Art. 1.14 V.A. C.C.P.) was not in effect at the time, but had been enacted as a part of the 1965 Code of Criminal Procedure, effective January 1, 1966. Art. 10a (now Art. 1.13) V.A.C.C.P. did not apply in capital felony cases.