Ex Parte Sanders

588 S.W.2d 383, 1979 Tex. Crim. App. LEXIS 1691

• Court: Court of Criminal Appeals of Texas
• Decided: October 24, 1979
• Docket: 60221
• Status: Published

Opinions

OPINION ON STATE’S MOTION FOR REHEARING

TOM G. DAVIS, Judge.

Petitioner seeks relief under a post-conviction writ of habeas corpus brought under the provisions of Art. 11.07, V.A.C.C.P. Petitioner was convicted of the offense of robbery in Cause No. 76734 in Criminal District Court No. 3 of Tarrant County. Punishment, enhanced by a prior felony conviction of like character, was life (See Art. 62 of the former Penal Code).

On original submission, the panel concluded that at the time petitioner’s prior conviction (made final at a revocation of probation proceeding) was proved at his robbery trial, the denial of counsel at a probation revocation hearing had not yet been established as a defect of constitutional magnitude and that his failure to object to its introduction did not constitute waiver. The panel found that our opinion in Crawford v. State, 435 S.W.2d 148 (Tex.Cr.App.), making the right to counsel at a revocation hearing retroactive being delivered 13 days prior to petitioner’s trial was not enough time to put petitioner’s counsel on notice that a valid objection existed to the use of the prior conviction for enhancement and, hence, there should be no waiver of a right that was unknown.

Failure to object to proof of a void conviction has been held to constitute waiver. Ex parte Gill, 509 S.W.2d 357 (Tex.Cr.App.). Where the defect which renders the conviction void has not been established as a defect of constitutional magnitude the failure of counsel to object does not constitute waiver. Ex parte Casarez, 508 S.W.2d 620 (Tex.Cr.App.); Ex parte Taylor, 484 S.W.2d 748 (Tex.Cr.App.).

In its Motion for Rehearing, the State contends that the panel opinion erroneously placed the burden of proof upon the State. Specifically, the State complains of the following portion of the original opinion:

“. . . A waiver of constitutional rights will not be lightly inferred, and courts will indulge every reasonable presumption against the waiver of fundamental constitutional rights. Johnson v. Zerbst, 304 U.S. 458 [, 58 S.Ct. 1019, 82 L.Ed. 1461] (1938). In cases involving the right to counsel, a heavy burden rests on the prosecution to show an intelligent, knowing, and voluntary waiver. Miranda v. Arizona, 384 U.S. 436 [, 86 S.Ct. 1602, 16 L.Ed.2d 694] (1966). Here the State offered no proof that the applicant or his counsel knew of a valid objection and waived it. Given the particular time sequence involved, we will not hold that the applicant waived his right to object to proof of the void prior conviction.”

We have held that in a habeas corpus action the petitioner has the burden of proof. See, Ex parte Rains, 555 S.W.2d 478 (Tex.Cr.App.); Ex parte Clark, 537 S.W.2d 40 (Tex.Cr.App.). We conclude that in the instant cause petitioner had the burden of proving why his failure to object to the use of the prior conviction did not constitute a waiver. No such proof was offered at the evidentiary hearing held in the trial court. The panel found that because of the time sequence involved, petitioner was excused from voicing an objection.

In Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 it was held that the appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of the accused may be affected and that such a stage includes a proceeding for revocation of probation. The opinion in Mempa was delivered by the Supreme Court on November 13, 1967. Thus, this opinion was delivered approximately 13 months before petitioner’s trial at which the void prior conviction was used for enhancement.

In McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 the Supreme Court held that its decision in Mempa v. Rhay, supra, was to be given full retroactive application. The opinion in McConnell was delivered on October 14, 1968, approximately two months before petitioner’s trial.

Our original opinion in Crawford v. State, supra, holding that Mempa v. Rhay was not to be applied retroactively was delivered on September 16, 1968. On November 27, 1968, the opinion on Appellant’s Motion for Rehearing in Crawford v. State, supra, recognized that Mempa v. Rhay, supra, was to be given retroactive application. The opinion on rehearing was delivered almost two weeks prior to petitioner’s trial.¹

We hold that petitioner’s failure to object when the complained of prior conviction was offered into evidence constituted a waiver of the claimed right.

The State’s Motion for Rehearing is granted and the relief sought by petitioner is denied.

1 . We note that since January 1, 1966, V.A.C. C.P. Art. 42.12, Sec. 3b, has provided for the appointment of counsel for an indigent probationer at a revocation hearing. Although this Article became effective some six months after petitioner’s probation was revoked in his prior conviction, it had been in effect some three years at the time the void prior conviction was used for enhancement.