Ex Parte McCarter

415 S.W.2d 409, 1967 Tex. Crim. App. LEXIS 960

• Court: Court of Criminal Appeals of Texas
• Decided: April 26, 1967
• Docket: 40352
• Status: Published

Opinions

OPINION

BELCHER, Judge.

This is a habeas corpus proceeding under Art. 11.07, Vernon’s Ann.C.C.P.

The evidence heard by the trial judge on the hearing of relator’s application for the writ was as follows:

On July 6, 1953, in the Criminal District Court of Dallas County, relator, having waived a trial by jury and entered a plea of guilty, was assessed a term of five years in the penitentiary for felony theft and it was ordered that the sentence be suspended during good behavior.

On September 2, 1955, the relator waived a jury and entered pleas of guilty in the Criminal District Court of Dallas County in each of two cases of felony theft and was assessed a term of three years in the penitentiary in each case. These sentences were served concurrently, and from each he was discharged on September 9, 1957.

On December 6, 1957, the relator waived a jury and entered pleas of guilty in the Criminal District Court of Dallas County in two cases: one for the offense of assault with intent to commit rape and the other for burglary, subsequent offense. In each case the relator was assessed a term of twelve years. A certificate of the Records Division of the Texas Department of Corrections shows that these two sentences were served and he was discharged therefrom on February 9, 1967. The relator is currently confined because of the revocation of a suspended sentence.

On January 7, 1958, which was during the term of the suspension of the five-year sentence granted the relator on July 6, 1953, a hearing was had on the state’s motion to have it revoked. After said hearing, the court entered an order setting aside the suspended sentence granted in 1953, pronounced sentence upon him in said cause, and ordered it cumulated with the twelve-year sentence pronounced against him on December 6, 1957, for the offense of burglary, subsequent offense.

The relator insists that the Criminal District Court of Dallas County had no authority in 1958 to revoke the suspended sentence granted him in 1953, on the ground that he had served two concurrent sentences for felonies between 1953 and 1958.

Art. 779, V.A.C.C.P., provided that upon final conviction of a defendant for any other felony, pending the suspension of sentence, the court granting such suspension shall pronounce sentence upon the original judgment of conviction and shall cumulate the punishment of the first with the punishment of any subsequent conviction or convictions. The provisions of this statute were mandatory. Eldridge v. State, 159 Tex.Cr.R. 79, 261 S.W.2d 579; Ex parte House, 161 Tex.Cr.R. 368, 276 S.W.2d 846; Young v. State, 162 Tex.Cr.R. 382, 285 S.W.2d 748. This contention is overruled.

For discharge, the relator also relies upon the ground that he was denied counsel at the hearing by the trial court to revoke his suspended sentence.

While testifying on the motion to revoke in the same court that granted his suspended sentence, the relator admitted that he had counsel of his selection in the 1953 conviction when his sentence was suspended; that at the hearing on January 7, 1958, he requested counsel and also asked the trial judge to let him contact an attorney, but the judge declined.

In Ex parte Crawford, 379 S.W.2d 663 (1964), this court held that the judgment was not void because the probation, in a prior case used for enhancement, had been revoked without the probationer having the assistance of counsel.

The provisions of Art. 42.12, C.C.P., which became effective January 1, 1966, relating to the appointment of counsel when probation is sought to be revoked, is not retroactive. See: Art. 1.02, C.C.P., and Ex parte Williams, Tex.Cr.App., April 5, 1967, 414 S.W.2d 472.

No error is presented. The relief is denied.