Ex Parte Dickey

543 S.W.2d 99

• Court: Court of Criminal Appeals of Texas
• Decided: November 10, 1976
• Docket: 51405
• Status: Published

Opinions

OPINION

ONION, Presiding Judge.

This is a habeas corpus proceeding seeking to appeal his conviction for burglary of a building, a second degree felony, wherein the punishment was assessed at six (6) years.

Upon the filing of the pro se habeas corpus application, the convicting court did not conduct an evidentiary hearing, but made findings of fact and conclusions of law and denied relief.

The trial court found that on February 17, 1975, the petitioner appeared in open court with counsel and prior to trial signed a sworn instrument which waived the right to trial by jury, the appearance, confrontation and cross-examination of witnesses, and included stipulations, etc., and said instrument concluded with a statement that petitioner knew of and waived his right to file a motion for new trial or in arrest of judgment, as well as his right to appeal his conviction to the Texas Court of Criminal Appeals.

The court found the instrument was signed by petitioner and his counsel and filed prior to trial and that petitioner waived his notice of appeal prior to trial. The court further found that during trial petitioner confirmed all of the waivers he had made in writing.

The court further found that on February 26, 1975, and within ten days after sentence, the petitioner gave written notice of appeal, which was within the time, limits prescribed by Article 44.08(c), Vernon’s Ann.C.C.P. The court denied such notice of appeal, finding that petitioner had earlier made a knowing and intelligent waiver of his right of appeal.

After the record reached this court, a supplemental transcript was forwarded to this court reflecting that immediately after the court pronounced sentence in the case the court asked:

“Now, you want to waive your right of appeal, is that right, is that my understanding?”

The defendant replied, “Yes, sir.”

The record before this court is meager. The only instruments brought forward in support of the trial court’s findings and conclusions are the judgment and sentence and the above-quoted excerpt from the court reporter’s notes.

There is dictum in Reed v. State, 516 S.W.2d 680 (Tex.Cr.App.1974), that “a knowing and intelligent waiver of the right to appeal would only prevent him from appealing without consent of the trial court.” With this we agree.

The question thus presented is whether the petitioner knowingly and intelligently waived his right of appeal. The trial court’s findings and conclusions are to this effect, but it is well established that findings and conclusions of the trial court in Article 11.07, Vernon’s Ann.C.C.P., proceedings are not binding on this court. Ex parte Bratchett, 513 S.W.2d 851 (Tex.Cr.App.1974); Ex parte Bazemore, 430 S.W.2d 205 (Tex.Cr.App.1968); Ex parte Williams, 486 S.W.2d 566 (Tex.Cr.App.1972); Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967).

There was no evidentiary hearing, and precious little in the instruments brought forward helps to support the findings made that the waiver of appeal was knowing and intelligent. There is nothing to show the age, education, background of the petitioner or his prior experience with courts, if any, or whether the right of appeal was explained to him by counsel or anyone else. The instrument filed prior to trial mentioned by the court’s findings is not in the record before us, but even if it was, the procedure of requiring a defendant to waive the right of appeal prior to trial should be condemned. At this point the right has not yet matured, the defendant has no way of knowing with certainty the punishment that will be assessed and cannot anticipate the errors that may occur during the trial. Surely a waiver of appeal under such circumstances cannot be knowingly and intelligently made. Under such procedure the waiver of the right of appeal, as well as waiver of motion for new trial, etc., becomes an integral part of the plea bargaining procedure, and the defendant is put in the position of fearing that if he does not waive such rights it may affect the punishment assessed or result in a denial of his motion for probation, if any.

The trial court mentioned that during trial the petitioner confirmed the waivers he made, but the transcription of the court reporter’s notes is not in the record before us, but here again a waiver of appeal during trial would be a premature waiver.

It is true, as set out above, that the trial court briefly inquired after sentencing whether the petitioner waived notice of appeal and received an affirmative answer. This, without more, makes it difficult to hold that the waiver was knowingly and intelligently made. The petitioner may well have thought after the earlier written waivers he had no choice in the matter.

This cause is remanded to the trial court for an evidentiary hearing in which it can be determined if the waiver of appeal was knowingly and intelligently made. The trial court shall, after such hearing, file findings of fact and conclusions of law and forward the same along with the record to this court. It is far better that this matter be determined now rather than years later when the record of the trial may no longer be in existence and when a new trial might have to be ordered.