Ex parte Owens

679 S.W.2d 518, 1984 Tex. Crim. App. LEXIS 558

• Court: Court of Criminal Appeals of Texas
• Decided: November 14, 1984
• Docket: No. 69277
• Status: Published

Opinions

OPINION

ODOM, Judge.

This is a habeas corpus application filed pursuant to Art. 11.07, V.A.C.C.P. The cause was remanded to the trial court for an evidentiary hearing and is now again before this Court. Petitioner was convicted of sexual abuse of a child. See 644 S.W.2d 873 (Tex.App. 1982). Punishment was fixed at life under V.T.C.A., Penal Code Sec. 12.42(d).

By habeas corpus application petitioner presents two issues. He contends the first of two prior convictions alleged for enhancement was void because of a fundamentally defective indictment. In a prior opinion in this cause we sustained this contention. Because punishment was assessed by the court, we found this does not require that the conviction be set aside. It is sufficient to set aside the punishment and remand the case for reassessment of punishment by the court.

In his other contention petitioner asserts he was denied his right to have punishment assessed by the jury because of ineffective assistance of counsel. We found an evi-dentiary hearing was required on this issue and remanded this cause to the habeas court for that purpose. Such a hearing has been held and the cause is now before us for final disposition.

Petitioner asserted he was denied effective assistance of counsel because his attorney advised him it would be pointless to go to the jury for punishment, since the two prior convictions alleged for enhancement would result in an automatic life sentence, and that had counsel properly investigated and discovered one of the prior convictions was void, he would have elected punishment by the jury.

At the evidentary hearing appellant’s trial counsel testified and denied such advice. Trial counsel testified that he advised appellant to elect to have punishment set by the court because of the nature of the alleged offense. In his experience and judgment, a jury after finding a defendant guilty of sexual abuse of a child would assess the maximum punishment possible, and a judge would be more likely to be lenient, if circumstances permitted assessment of a lesser punishment. It was also shown that counsel objected to proof of the prior convictions alleged for enhancement. Counsel testified that even if petitioner had no prior convictions he would still have given the same advice due to the nature of the offense charged. We find the facts do not support petitioner’s assertion that he was denied effective assistance of counsel, and overrule this contention.

Relief is granted in part. The punishment assessed in cause 1-80-139 in the 241st District Court of Smith County is set aside and the cause is remanded to that court for a new punishment hearing and assessment of punishment by the trial court on the allegation of the single prior conviction alleged in the last paragraph of the indictment.

It is so ordered.