Ex Parte Higginbotham

382 S.W.2d 927, 1964 Tex. Crim. App. LEXIS 1075

• Court: Court of Criminal Appeals of Texas
• Decided: October 21, 1964
• Docket: 37451
• Status: Published

Opinion

WOODLEY, Presiding Judge.

This is an original application for writ of habeas corpus by which the petitioner seeks his release from the penitentiary on the ground that he was not represented by counsel when he waived a jury and pleaded guilty before the court

On January 30, 1964 the petitioner entered his plea of guilty in Cause No. 686S6 before the Criminal District Court of Tarrant County to the offense of robbery and waived a trial by jury. There being no showing that the defendant was indigent, no attorney was appointed to represent him.

Art. 10a, Vernon’s Ann.C.C.P., provides that before a defendant who has no attorney can agree to waive a jury, the court must appoint an attorney to represent him. This provision is mandatory and applies whether the defendant is indigent or not. Failure to comply renders the conviction void. Ex parte Rawlins, 158 Tex.Cr.R. 346, 255 S.W.2d 877; Ex parte Ross, 165 Tex.Cr.R. 246, 305 S.W.2d 958.

The petition for writ of habeas corpus is granted; the petitioner is ordered released from the penitentiary and delivered to the custody of the Sheriff of Tarrant County, Texas, to answer the indictment in Cause No. 68656 in the Criminal District Court of Tarrant County.