Ex Parte Clark

299 S.W.2d 128, 164 Tex. Crim. 385, 1957 Tex. Crim. App. LEXIS 2125

• Court: Court of Criminal Appeals of Texas
• Decided: January 30, 1957
• Docket: 28739
• Status: Published

Opinions

WOODLEY, Judge.

This is a habeas corpus proceeding wherein relator attacks as void the judgments and sentences under which he is confined in the penitentiary.

The convictions were in criminal district court of Jefferson County, one of which was affirmed by this court in Clark v. State, 289 S.W. 2d 248. The attempted appeal from the other was dismissed in Clark v. State, 289 S.W. 2d 248.

The application for writ of habeas corpus was granted by Hon. Homer E. Stephenson, Judge of the 128th District Court of Orange County, who after hearing the evidence, made the writ returnable before this court as provided in Art. 119 V. A.C.C.P.

The judgment in each conviction contains the recitation that the court heard and considered the pleadings and evidence offered after appellant had waived a jury and pleaded guilty.

The record of the evidence offered upon the hearing is before us.

The presumption is that the trial court’s ruling and judgment in a criminal prosecution are correct and that the law was complied with. Ex parte Brewer, 156 Texas Cr. Rep. 369, 242 S. W. 2d 430.

The burden was upon appellant to overcome such presumption and show that the convictions are void and that his confinement thereunder is illegal. Ex parte Clopp, 109 Texas Cr. Rep. 17, 2 S.W. 2d 445.

The basis of appellant’s claim that the convictions are void is that the criminal district court of Jefferson County was without jurisdiction because no witness testified and no evidence was offered to sustain his plea of guilty before the court.

The evidence upon the hearing before Judge Stephenson shows that the state offered in evidence upon the trials in Jefferson County the written confession of relator; the customer’s draft which relator admitted that he signed, and sworn statements of the prosecuting witnesses.

The record shows that the draft, the statements of the prosecuting witnesses and appellant’s confession were admitted without objection.

The record further shows that the attorney appointed by the court to represent relator at his trials waived the right to have the witnesses personally present and agreed that their sworn statements might be used.

It was the testimony of the assistant district attorney who prosecuted the cases that relator personally “waived the hearsay rule and the presence of witnesses to appear and testify against the defendant in each cause.”

Relator testified at the hearing and denied that he so waived or that he heard his attorney do so.

In the absence of any other testimony and in view of the burden which rested upon relator to establish that his confinement was illegal, we must hold that relator personally waived the right to have the witnesses against him appear in person and agreed that their sworn statements might be used.

Relator in person and by his counsel having waived the right to be confronted by the witnesses against him in order that he be afforded the opportunity of cross-examination, and no objection having been offered to the draft, the sworn statements of the prosecuting witnesses or to the confession of relator, they were properly received in evidence in the trial before the court. Villarreal v. State, 162 Texas Cr. Rep. 369, 214 S.W. 2d 464; Ex parte Bruinsma, No. 28692, (Page 358, this volume.)

It is suggested that though the court did not err in admitting the statements, they were of no probative force because they were hearsay.

There is more than one kind of evidence which is commonly referred to as being inadmissible under the “hearsay rule.” One is that defined by this court in Lightfoot v. State, 123 Texas Cr. Rep. 176, 58 S.W. 2d 81, as “that kind of evidence which does not derive its value solely from the credit given the witness himself, but rests also in part on the veracity and competency of some other person * * * implies the possession of information rather than knowledge * * * is synonymous with report.”

It is this character of hearsay that is excluded under the rule stated in 18 Texas Jur., p. 113, Sec. 56, and it is this information or report called hearsay which is without probative value to establish the truth of the report.

The narration by written statement of a witness to an event is also inadmissible under the so-called “hearsay rule,” because (1) it is made without the-sanction of an oath and (2) because the witness has not been subject to cross-examination.

The statements introduced by the state are not subject to the first part of the rule because they were sworn to, but the second reason for exclusion applies. McCormick & Ray, Texas Law of Evidence, 1st Edition, Secs. 361 and 363; 2nd Edition, Sec. 787.

The constitutional right of an accused to confrontation and the right to cross-examine the witnesses against him is a right which may be waived. Hancock v. State, 14 Texas App. 392, 401; Odell v. State, 44 Texas Cr. Rep. 307, 70 S.W. 964; Field v. State, 155 Texas Cr. Rep. 137, 232 S.W. 2d 717.

This right having been waived upon the trial in which relator pleaded guilty before the court, the statements constituted evidence of probative force. The affidavits are in the record and were shown to be true. With other evidence adduced, they show relator’s guilt and support his plea of guilty.

Relator, having failed to prove the allegation that the judgments and sentences under which he is confined are void, is not entitled to discharge.

The relief prayed for is denied.