Ex Parte Bush

Court of Criminal Appeals of Texas

Ex Parte Bush

313 S.W.2d 287, 166 Tex. Crim. 259, 1958 Tex. Crim. App. LEXIS 4577

CourtCourt of Criminal Appeals of Texas

DecidedMay 14, 1958

Docket29806

StatusPublished

Cited by25 cases

This text of 313 S.W.2d 287 (Ex Parte Bush) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ex Parte Bush, 313 S.W.2d 287, 166 Tex. Crim. 259, 1958 Tex. Crim. App. LEXIS 4577 (Tex. 1958).

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MORRISON, Presiding Judge.

[260]*260Petitioner made an application for writ of habeas corpus to this court alleging that he was convicted in Cause No. 18,000 in the district court of the 18th Judicial District as an habitual offender under Article 63, V.A.P.C., without the benefit of counsel, that his request that counsel be appointed for him was denied, and that at the time of such trial there was outstanding against him an unvacated judgment finding him to be a person of unsound mind.

This court ordered the judge of the 18th Judicial District Court to develop the facts. This has been done, and from the record so presented we have concluded that petitioner sustained the contentions advanced in his application and that he has established that he was deprived of a trial in accordance with the rules of due process. Chandler v. Fretag, 348 U.S. 3, 99 L. Ed. 4, 75 S. Ct. 1.

This court has the power and authority to prevent the enforcement of a judgment obtained under circumstances which constitute a denial of due process. Ex parte McCune, 156 Texas Cr. Rep. 213, 246 S.W. 2d 171, and Ex parte Puckett, 165 Texas Cr. Rep. 605, 310 S.W. 2d 117.

While the proceeding here is new to this court, it is now clear that where after conviction, regular on its face and on the record, it is made to appear that the defendant was denied due process of law at the trial, and this court refuses to issue the writ of habeas corpus applied for, the Supreme Court of the United States will reverse and remand the cause to this Court for further proceedings not inconsistent with the opinion of that court. Alcorta v. Texas, 355 U.S. 28, 2 L. ed. 2d 9, 78 S. Ct. 103.

That the refusal of the court in a felony case upon request to appoint counsel for an indigent defendant who is presumptively insane and who is charged as an habitual criminal is a denial of his constitutional right to due process seems clear.

The record shows that insanity was a possible defense, and this must be taken into consideration. It is also shown that the trial court, in his charge, recognized that he was presumptively insane. Branch’s Ann. P.C., 2nd Ed., Sec. 281.

The writ of habeas corpus is granted, and it is ordered that realtor be relieved from further confinement in the penitentiary and that he be delivered by the penitentiary authorities to the sheriff of Johnson County to answer in the 18th Judicial District [261]*261Court of such county to the indictment in said cause under which his conviction was had.

It is so ordered.

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MORRISON, Presiding Judge.

[260]*260Petitioner made an application for writ of habeas corpus to this court alleging that he was convicted in Cause No. 18,000 in the district court of the 18th Judicial District as an habitual offender under Article 63, V.A.P.C., without the benefit of counsel, that his request that counsel be appointed for him was denied, and that at the time of such trial there was outstanding against him an unvacated judgment finding him to be a person of unsound mind.

This court ordered the judge of the 18th Judicial District Court to develop the facts. This has been done, and from the record so presented we have concluded that petitioner sustained the contentions advanced in his application and that he has established that he was deprived of a trial in accordance with the rules of due process. Chandler v. Fretag, 348 U.S. 3, 99 L. Ed. 4, 75 S. Ct. 1.

This court has the power and authority to prevent the enforcement of a judgment obtained under circumstances which constitute a denial of due process. Ex parte McCune, 156 Texas Cr. Rep. 213, 246 S.W. 2d 171, and Ex parte Puckett, 165 Texas Cr. Rep. 605, 310 S.W. 2d 117.

While the proceeding here is new to this court, it is now clear that where after conviction, regular on its face and on the record, it is made to appear that the defendant was denied due process of law at the trial, and this court refuses to issue the writ of habeas corpus applied for, the Supreme Court of the United States will reverse and remand the cause to this Court for further proceedings not inconsistent with the opinion of that court. Alcorta v. Texas, 355 U.S. 28, 2 L. ed. 2d 9, 78 S. Ct. 103.

That the refusal of the court in a felony case upon request to appoint counsel for an indigent defendant who is presumptively insane and who is charged as an habitual criminal is a denial of his constitutional right to due process seems clear.

The record shows that insanity was a possible defense, and this must be taken into consideration. It is also shown that the trial court, in his charge, recognized that he was presumptively insane. Branch’s Ann. P.C., 2nd Ed., Sec. 281.

The writ of habeas corpus is granted, and it is ordered that realtor be relieved from further confinement in the penitentiary and that he be delivered by the penitentiary authorities to the sheriff of Johnson County to answer in the 18th Judicial District [261]*261Court of such county to the indictment in said cause under which his conviction was had.

It is so ordered.

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313 S.W.2d 287, 166 Tex. Crim. 259, 1958 Tex. Crim. App. LEXIS 4577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-bush-texcrimapp-1958.

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