OPINION
ONION, Presiding Judge.
This is a post-conviction application for writ of habeas corpus brought by an inmate of the Department of Corrections under the provisions of Article 11.07, Vernon’s Ann.C.C.P. See Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967).
In his habeas corpus application filed in the convicting court, the 119th Judicial District Court, petitioner contends in effect, among other things, that he unknow[511]*511ingly and involuntarily pled guilty to the offense of robbery by assault because his appointed counsel was too poorly prepared to give him effective assistance in deciding how to plead.
The record reflects that the petitioner was charged with the robbery by assault of one Gene Hill, a county jailor, taking from him a set of keys.
At the evidentiary hearing in the convicting court the trial judge found that this was “a companion case” to Herring v. Estelle, 491 F.2d 125 (5th Cir.1974), wherein Herring was granted relief on the same ground now urged by appellant.
In Herring the court reaffirmed the “reasonably effective assistance” standard of MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961), in determining whether counsel has provided constitutionally satisfactory services and rejecting the “farce-mockery” test as a governing criterion.
After so doing, the court found in applying the test to the facts in Herring’s case he was entitled to relief. It appears that Herring, who was charged with robbery by assault, and two others took keys from the jailor and escaped, leaving the keys in the jail’s back door. Counsel, appointed on the day of the trial, spent a negligible amount of time familiarizing himself with the case and allowed Herring to plead guilty to the robbery charge.
The Fifth Circuit Court of Appeals concluded that even a cursory perusal of Bailey v. State, 139 Tex.Cr.R. 260, 139 S.W.2d 599 (Tex.Cr.App.1940), and Fitzgerald v. State, 160 Tex.Cr.R. 414, 271 S.W.2d 428 (Tex.Cr.App.1954), involving the taking of jail keys, would have demonstrated that robbery in Texas requires an intent to permanently appropriate the property and deprive the owner of its value, and that a strong argument could be made that the facts of the case demonstrated Herring’s intent not to keep the keys permanently, and that reasonably effective counsel would have advised Herring to plead not guilty or, at the very least, explained to him the law of robbery and the holding in Bailey. The judgment of conviction was vacated.
In the instant case the convicting court found that the petitioner Gallegos was one of the escapees with Herring, who was similarly charged as was Herring with robbery by assault, and that petitioner’s appointed counsel “did not search for and discover Bailey v. State” nor present the same for consideration to either the petitioner or the court, finding that counsel did not meet the minimum standards of effective assistance. The trial court further found that petitioner is entitled to the relief he seeks.
In determining whether an accused has been denied the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution, the particular circumstances of each individual case must be considered. Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1939). See also Chalk v. Beto, 429 F.2d 225 (5th Cir. 1970); King v. Beto, 429 F.2d 221 (5th Cir. 1970), cert. denied, 401 U.S. 936, 91 S.Ct. 921, 28 L. Ed.2d 216 (1971).
The test to be applied in determining whether counsel has provided constitutionally satisfactory services is the “reasonably effective assistance” standard of MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961). There, the court said:
“We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.”
Such test has been adopted by this court. See Caraway v. State, 417 S.W.2d 159 (Tex.Cr.App.1967), judgment vacated on other grounds, Caraway v. Beto, 421 F.2d 636 (5th Cir. 1970); Vessels v. State, 432 S.W.2d 108 (Tex.Cr.App.1968); Ex parte Smith, 463 S.W.2d 185 (Tex.Cr.App.1971); [512]*512Newton v. State, 456 S.W.2d 939 (Tex.Cr.App.1970); Johnson v. State, 426 S.W.2d 874 (Tex.Cr.App.1968).
After the adoption of such test, there have crept into some of our opinions, however, language that would indicate the true test is whether the trial was a farce and there was a mockery of justice, relying principally upon Williams v. Beto, 354 F.2d 698 (5th Cir. 1965). See Ex parte Love, 468 S.W.2d 836 (Tex.Cr.App.1971), and Brooks v. State, 473 S.W.2d 30, 31 (Tex.Cr.App.1971), which cites several Fifth Circuit Court of Appeals opinions in support thereof.
There is another line of cases which seems to combine part of the MacKenna test with the mockery of justice test in passing upon the effective assistance of counsel question. See, i. e., Washington v. State, 450 S.W.2d 630 (Tex.Cr.App.1970); Meeks v. State, 456 S.W.2d 938 (Tex.Cr.App.1970); Boykin v. State, 487 S.W.2d 128 (Tex.Cr.App.1972); Rascon v. State, 496 S.W.2d 99 (Tex.Cr.App.1973).
In Powers v. State, 492 S.W.2d 274 (Tex.Cr.App.1973), Commissioner Jackson, speaking for the court, recognized that the trial was a farce or a mockery of justice test had frequently been applied by this court, relying upon Williams v. Beto, supra, but he wrote:
“Even so, an indigent’s right to counsel means the right to effective counsel. It does not require ‘errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.’ MacKenna v. Ellis, 5 Cir. 1960, 280 F.2d 592, 599. See, cf., Powell v. Alabama,
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
ONION, Presiding Judge.
This is a post-conviction application for writ of habeas corpus brought by an inmate of the Department of Corrections under the provisions of Article 11.07, Vernon’s Ann.C.C.P. See Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967).
In his habeas corpus application filed in the convicting court, the 119th Judicial District Court, petitioner contends in effect, among other things, that he unknow[511]*511ingly and involuntarily pled guilty to the offense of robbery by assault because his appointed counsel was too poorly prepared to give him effective assistance in deciding how to plead.
The record reflects that the petitioner was charged with the robbery by assault of one Gene Hill, a county jailor, taking from him a set of keys.
At the evidentiary hearing in the convicting court the trial judge found that this was “a companion case” to Herring v. Estelle, 491 F.2d 125 (5th Cir.1974), wherein Herring was granted relief on the same ground now urged by appellant.
In Herring the court reaffirmed the “reasonably effective assistance” standard of MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961), in determining whether counsel has provided constitutionally satisfactory services and rejecting the “farce-mockery” test as a governing criterion.
After so doing, the court found in applying the test to the facts in Herring’s case he was entitled to relief. It appears that Herring, who was charged with robbery by assault, and two others took keys from the jailor and escaped, leaving the keys in the jail’s back door. Counsel, appointed on the day of the trial, spent a negligible amount of time familiarizing himself with the case and allowed Herring to plead guilty to the robbery charge.
The Fifth Circuit Court of Appeals concluded that even a cursory perusal of Bailey v. State, 139 Tex.Cr.R. 260, 139 S.W.2d 599 (Tex.Cr.App.1940), and Fitzgerald v. State, 160 Tex.Cr.R. 414, 271 S.W.2d 428 (Tex.Cr.App.1954), involving the taking of jail keys, would have demonstrated that robbery in Texas requires an intent to permanently appropriate the property and deprive the owner of its value, and that a strong argument could be made that the facts of the case demonstrated Herring’s intent not to keep the keys permanently, and that reasonably effective counsel would have advised Herring to plead not guilty or, at the very least, explained to him the law of robbery and the holding in Bailey. The judgment of conviction was vacated.
In the instant case the convicting court found that the petitioner Gallegos was one of the escapees with Herring, who was similarly charged as was Herring with robbery by assault, and that petitioner’s appointed counsel “did not search for and discover Bailey v. State” nor present the same for consideration to either the petitioner or the court, finding that counsel did not meet the minimum standards of effective assistance. The trial court further found that petitioner is entitled to the relief he seeks.
In determining whether an accused has been denied the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution, the particular circumstances of each individual case must be considered. Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1939). See also Chalk v. Beto, 429 F.2d 225 (5th Cir. 1970); King v. Beto, 429 F.2d 221 (5th Cir. 1970), cert. denied, 401 U.S. 936, 91 S.Ct. 921, 28 L. Ed.2d 216 (1971).
The test to be applied in determining whether counsel has provided constitutionally satisfactory services is the “reasonably effective assistance” standard of MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961). There, the court said:
“We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.”
Such test has been adopted by this court. See Caraway v. State, 417 S.W.2d 159 (Tex.Cr.App.1967), judgment vacated on other grounds, Caraway v. Beto, 421 F.2d 636 (5th Cir. 1970); Vessels v. State, 432 S.W.2d 108 (Tex.Cr.App.1968); Ex parte Smith, 463 S.W.2d 185 (Tex.Cr.App.1971); [512]*512Newton v. State, 456 S.W.2d 939 (Tex.Cr.App.1970); Johnson v. State, 426 S.W.2d 874 (Tex.Cr.App.1968).
After the adoption of such test, there have crept into some of our opinions, however, language that would indicate the true test is whether the trial was a farce and there was a mockery of justice, relying principally upon Williams v. Beto, 354 F.2d 698 (5th Cir. 1965). See Ex parte Love, 468 S.W.2d 836 (Tex.Cr.App.1971), and Brooks v. State, 473 S.W.2d 30, 31 (Tex.Cr.App.1971), which cites several Fifth Circuit Court of Appeals opinions in support thereof.
There is another line of cases which seems to combine part of the MacKenna test with the mockery of justice test in passing upon the effective assistance of counsel question. See, i. e., Washington v. State, 450 S.W.2d 630 (Tex.Cr.App.1970); Meeks v. State, 456 S.W.2d 938 (Tex.Cr.App.1970); Boykin v. State, 487 S.W.2d 128 (Tex.Cr.App.1972); Rascon v. State, 496 S.W.2d 99 (Tex.Cr.App.1973).
In Powers v. State, 492 S.W.2d 274 (Tex.Cr.App.1973), Commissioner Jackson, speaking for the court, recognized that the trial was a farce or a mockery of justice test had frequently been applied by this court, relying upon Williams v. Beto, supra, but he wrote:
“Even so, an indigent’s right to counsel means the right to effective counsel. It does not require ‘errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.’ MacKenna v. Ellis, 5 Cir. 1960, 280 F.2d 592, 599. See, cf., Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932).”
Powers thus recognized that while the “farce-mockery” test or language had appeared in a number of opinions, the correct and governing standard was the “reasonably effective assistance” standard of MacKenna v. Ellis, supra.1
Only recently, the Fifth Circuit Court of Appeals wrestled with much the same problem. See Herring v. Estelle, supra.
In Herring the court reaffirmed its faith in the “reasonably effective assistance” standard of the MacKenna case. It noted that following the decision in Williams v. Beto, supra, by a panel of the court, the “farce-mockery” language appeared in some of the. Fifth Circuit opinions with some frequency. A close reading of Williams v. Beto, supra, convinced the court that the opinion did not intend to adopt the farce-mockery test in lieu of the reasonably effective standard. It observed that the panel in effect was saying the farce-mockery test existed in other circuits, but in granting relief cited with approval MacKenna v. Ellis, supra.
The Herring court thought the two tests could be reconciled, saying:
“ . . . The governing standard is reasonably effective assistance. One method of determining whether counsel has rendered reasonably effective assistance is to ask whether the proceedings were a farce or mockery. The farce-mockery test is but one criterion for determining if an accused has received the constitutionally required minimum representation (reasonably effective assistance). See Bendelow v. United States, 5th Cir. 1969, 418 F.2d 42, 50, cert. denied, 400 U.S. 967, 91 S.Ct. 379, 27 L.Ed.2d 387. One may receive ineffective assistance of counsel even though the proceedings have not been a farce or mockery. United States v. Edwards, 5th Cir. 1974, 488 F.2d 1154 at pp. 1164, 1165 [1974], Other circuits may adhere sole[513]*513ly to the farce-mockery test, but we do not. Pennington v. Beto, 5th Cir. 1971, 437 F.2d 1281, 1285-1286; Brown v. Beto, 5th Cir. 1967, 377 F.2d 950, 957-958. Our standard is reasonably effective assistance.”
We agree with the Herring reasoning.
In applying the reasonably effective assistance standard to the facts of the instant case, we conclude, as did the court in Herring on the same facts, that petitioner Gallegos was denied the effective assistance of counsel when counsel failed to advise Gallegos how the facts of his case related to the Texas law of robbery, thus preventing the guilty plea from being knowingly and voluntarily entered.
The petitioner is ordered released and remanded to the sheriff of Tom Green County to answer the indictment in Cause No. 7604 — B in the convicting court.
It is so ordered.