Ex parte McAlpine

501 S.W.2d 664, 1973 Tex. Crim. App. LEXIS 2140

• Court: Court of Criminal Appeals of Texas
• Decided: November 21, 1973
• Docket: No. 47430
• Status: Published

Opinion

OPINION ON MOTION FOR REHEARING

DOUGLAS, Judge.

Leave to file and the motion for rehearing are granted. The prior opinion is withdrawn.

This is a habeas corpus proceeding under Article 11.07, Vernon’s Ann.C.C.P. The two convictions attacked are for the subsequent offense of operating a motor vehicle upon a public highway while intoxicated.

Applicant alleges that the prior misdemeanor convictions used as an element of each offense are void because at the time of such trials he was indigent, did not have counsel and was not advised of his right to counsel.

The allegations are sufficient to show that the convictions should be set aside under Ramirez v. State, 486 S.W.2d 373, and Walker v. State, 486 S.W.2d 330. The application was first denied without prejudice because it had not been filed in the convicting' court. Since then, the application has been filed with the trial court and a copy has been forwarded to this Court.

The prosecuting attorney has now conceded that the State has no proof to contradict the allegations in the application for a writ of habeas corpus.

The relief under the application for ha-beas corpus should be granted and the applicant should be released from confinement under the felony convictions for driving a motor vehicle in Cause No. 7008 in the District Court of Erath County and in Cause No. 6643 in Palo Pinto County.

It is so ordered.