Ex Parte Guzman

551 S.W.2d 387, 1977 Tex. Crim. App. LEXIS 1148

• Court: Court of Criminal Appeals of Texas
• Decided: May 25, 1977
• Docket: 54253
• Status: Published

Opinions

OPINION

GREEN, Commissioner.

This is an application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C. C.P.

Petitioner was convicted of the offense of assault to rob in Cause No. 8468, on his plea of guilty to the court, on June 11, 1959, at which time the court assessed a four (4) year sentence, probated. Subsequently, on June 15, 1961, petitioner's probation was revoked, and no appeal of this revocation order was perfected.

Petitioner filed an application for writ of habeas corpus with the trial court, alleging that at the time of his probation revocation hearing in 1961 he was not represented by counsel and was not advised of his right to counsel at that proceeding, therefore contending that he did not voluntarily and knowingly waive his right to counsel. The trial court originally denied the application for writ of habeas corpus, finding that the application for writ of habeas corpus was moot, since petitioner was no longer held in custody of that conviction, said conviction long since being discharged.

This Court remanded the case back to the trial court for further proceedings to determine the merits of petitioner’s contentions, noting that prior convictions that had been discharged may have serious collateral consequences to a criminal defendant, thus the mootness doctrine cannot prohibit a collateral attack. See Ex parte Burt, 499 S.W.2d 109 (Tex.Cr.App.1973); Ex parte Jentsch, 510 S.W.2d 320 (Tex.Cr.App.1974); Ex parte Langston, 510 S.W.2d 603 (Tex.Cr.App.1974).

On remand, the trial court found that petitioner was not represented by counsel at the time of this probation revocation proceeding, was indigent, and did not waive counsel. The records before this Court corroborate the petitioner’s pleadings and the trial court’s findings. See Ex parte Stauts, 482 S.W.2d 638 (Tex.Cr.App.1972); Ex parte Williams, 486 S.W.2d 566 (Tex.Cr.App.1972). Therefore, we hold that the or der of revocation has been rendered void by petitioner’s showing that he was denied his right to counsel at that proceeding. See Ex parte Herrera, 493 S.W.2d 809 (Tex.Cr.App.1973); Ex parte Shivers, 501 S.W.2d 898 (Tex.Cr.App.1973); Bray v. State, 531 S.W.2d 633 (Tex.Cr.App.1976); Ex parte Bird, 457 S.W.2d 559 (Tex.Cr.App.1970); Ex parte Flores, 537 S.W.2d 458 (Tex.Cr.App.1976).

Accordingly, the application for writ of habeas corpus is granted, and the order of revocation in Cause No. 8468 is hereby set aside.

Opinion approved by the Court.