Ex Parte Brewer

242 S.W.2d 430, 156 Tex. Crim. 369, 1951 Tex. Crim. App. LEXIS 1591

• Court: Court of Criminal Appeals of Texas
• Decided: June 30, 1951
• Docket: 25430
• Status: Published

Opinions

MORRISON, Judge.

This is an application for writ of habeas corpus brought by an inmate of the penitentiary.

At an earlier day of the term this court instructed the Honorable A. A. Dawson, Judge of the District Court of Van Zandt County, to develop the facts at a hearing and certify the results of such hearing to us. We find therefrom that in Causes Nos. 10574, 10575, 10576, 10577 and 10578, relator, on September 17, 1937, in said court was adjudged guilty of felonies less than capital under indictments alleging two former convictions of similar felonies and was sentenced to life imprisonment in each case.

The contention is made that appellant was without counsel when he waived a jury and plead guilty to the causes set forth above.

The state, in an able brief, claims its authority for holding relator by virtue of the judgment and sentence in Cause No. 10578 and upon the primary offense of robbery by assault charged therein only. We agree with the state’s contention and will not discuss the other cases set forth above.

The judgment in such case recites that he waived a jury and plead guilty before the court. The judgment also recites that his counsel was present.

Both the judge who presided at the trial and the attorney who prosecuted are now deceased.

Other than the appellant and his wife, the testimony offered, viewed in its most favorable light to appellant, shows that no attorney took part in the examination of witnesses on the trial, and so far as the records (other than the judgment) show, or the witnesses knew, relator was not represented by counsel appointed by the court or of his own choice.

Relator and his wife testified that he had no attorney, and so far as they knew, the judge appointed none.

The deputy district clerk who prepared the judgment for entry had no independent recollection of being present at the trial, and was unable to testify that he did or did not have an attorney. He testified, however, that he felt sure he had counsel or he wouldn’t have put that in the judgment. The judge approved the minutes after the judgment had been entered.

The controlling question is whether or not the evidence is sufficient to show the falsity of the recitation in the judgment to the effect that relator’s counsel was present. Art. 10a, Vernon’s C.C.P., provides that before a defendant who has no attorney may waive a jury, the court must appoint an attorney to represent him.

The presumption is that the trial court’s ruling and judgment are correct and that the law was complied with, and if relator had no attorney, that no one was appointed for him. The recital of the judgment is to the effect that relator’s counsel was present, and the presumption is that such recital is true. Such presumption attains until and unless the contrary is made to appear, and this court has held that a sworn petition is insufficient to overcome such presumption. See Ex parte Jones, 145 Tex. Cr. R. 30, 165 S.W. 2d 454.

In this collateral attack, the testimony is insufficient to overcome the presumption in favor of the truth of the allegations of the judgment that relator’s counsel was present.

We hold that it has not been shown here that relator was without counsel. We further hold that relator has failed to show that he was in any manner overreached, and in this connection attention is directed to the relatively recent opinion of the Supreme Court of the United States in Quicksall v. Michigan, 339 U.S. 660, 94 L.ed. 1188, wherein it was held that “To invalidate a plea of guilty the prisoner must establish that ‘for want of benefit of counsel an ingredient of unfairness actively operated in the process that resulted in his confinement.’ ” In this connection, attention is further directed to the opinion of this court in Ex parte Huddleston, 149 Tex. Cr. R. 388, 194 S.W. 2d 401, where we declined to hold that the failure of the trial court to follow the mandate of Art. 10a, C.C.P., would render the judgment void, but reserved decision on such question.

In the absence of proof that the trial court failed to follow the mandates of Art. 10a, C.C.P., relator is not entitled to relief.

The writ is denied.