Ex Parte Davila

Court of Criminal Appeals of Texas

Ex Parte Davila

530 S.W.2d 543

CourtCourt of Criminal Appeals of Texas

DecidedDecember 17, 1975

Docket50334

StatusPublished

Cited by39 cases

This text of 530 S.W.2d 543 (Ex Parte Davila) 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 Davila, 530 S.W.2d 543 (Tex. 1975).

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OPINION

BROWN, Commissioner.

This is a post conviction habeas corpus proceeding under Article 11.07, Vernon’s Ann.C.C.P.

Petitioner contends that he is illegally confined on a void sentence. He was indicted on February 27, 1974, for the offense of statutory rape under Article 1183 of the old penal code. The indictment alleged that the offense was committed on December 8, 1973 and that he unlawfully had carnal knowledge of C-G_, who was then and there under the age of eighteen years, not the wife of petitioner. On the advice of his retained counsel, petitioner pled guilty on April 21,1974, and was sentenced to five (5) years’ confinement. No appeal was taken.

On March 18, 1975, the court which heard the plea of guilty denied petitioner’s application without a hearing. He did, however, file and forward to this Court his findings of fact and conclusions of law. He found as a fact that the complainant in the rape case was born on August 20, 1956, and at the time of the offense “was seventeen (17) years, three (3) months and nineteen (19) days old.” The record of the trial is not before us. Admittedly, this Court is not bound by the findings of the trial court in a habeas corpus proceeding and may make contrary findings when the record will not support the trial court’s findings. Ex Parte Young, Tex.Cr.App., 479 S.W.2d 45, and cases cited therein. Nevertheless, the finding of the exact date of birth and the exact age of the victim by the court which tried the case lends sufficient verity to these findings to enable us to accept them as fact.

Section 21.09(a) of the new penal code which was in effect at the time the indictment was returned and at the time of trial lowers the age of consent from 18 years to 17 years. Accordingly, after January 1, 1974, consensual intercourse with a female who has attained the age of 17 years is not conduct which is proscribed by the new penal laws of this State.

Texas Penal Code, Sec. 6, Savings Provisions, Acts 1973, 63rd Leg., p. 883, Ch. 399 provides:

“(b) . . . . If, on the effective date of this Act, a criminal action is pending for conduct that was an offense under the laws repealed by this Act and that does not constitute an offense under this [545]*545Act, the action is dismissed on the effective date of this Act.”

Accordingly, no prosecution for statutory rape of a female 17 years of age or older may now be maintained.

The conviction is set aside, the prosecution ordered dismissed and petitioner is ordered released from custody.

Opinion approved by the Court.

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OPINION

BROWN, Commissioner.

This is a post conviction habeas corpus proceeding under Article 11.07, Vernon’s Ann.C.C.P.

Petitioner contends that he is illegally confined on a void sentence. He was indicted on February 27, 1974, for the offense of statutory rape under Article 1183 of the old penal code. The indictment alleged that the offense was committed on December 8, 1973 and that he unlawfully had carnal knowledge of C-G_, who was then and there under the age of eighteen years, not the wife of petitioner. On the advice of his retained counsel, petitioner pled guilty on April 21,1974, and was sentenced to five (5) years’ confinement. No appeal was taken.

On March 18, 1975, the court which heard the plea of guilty denied petitioner’s application without a hearing. He did, however, file and forward to this Court his findings of fact and conclusions of law. He found as a fact that the complainant in the rape case was born on August 20, 1956, and at the time of the offense “was seventeen (17) years, three (3) months and nineteen (19) days old.” The record of the trial is not before us. Admittedly, this Court is not bound by the findings of the trial court in a habeas corpus proceeding and may make contrary findings when the record will not support the trial court’s findings. Ex Parte Young, Tex.Cr.App., 479 S.W.2d 45, and cases cited therein. Nevertheless, the finding of the exact date of birth and the exact age of the victim by the court which tried the case lends sufficient verity to these findings to enable us to accept them as fact.

Section 21.09(a) of the new penal code which was in effect at the time the indictment was returned and at the time of trial lowers the age of consent from 18 years to 17 years. Accordingly, after January 1, 1974, consensual intercourse with a female who has attained the age of 17 years is not conduct which is proscribed by the new penal laws of this State.

Texas Penal Code, Sec. 6, Savings Provisions, Acts 1973, 63rd Leg., p. 883, Ch. 399 provides:

“(b) . . . . If, on the effective date of this Act, a criminal action is pending for conduct that was an offense under the laws repealed by this Act and that does not constitute an offense under this [545]*545Act, the action is dismissed on the effective date of this Act.”

Accordingly, no prosecution for statutory rape of a female 17 years of age or older may now be maintained.

The conviction is set aside, the prosecution ordered dismissed and petitioner is ordered released from custody.

Opinion approved by the Court.

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