Ex parte Smith

519 S.W.2d 432

• Court: Court of Criminal Appeals of Texas
• Decided: February 26, 1975
• Docket: No. 49679
• Status: Published

Opinion

OPINION

ODOM, Judge.

This is a habeas corpus proceeding under Article 11.07, Vernon’s Ann.C.C.P., in which the petitioner seeks his release from confinement as an inmate in the Texas Department of Corrections.

Petitioner was convicted of the offense of robbery; punishment was assessed at fifty years’ imprisonment.

The record reflects that an attorney was appointed to represent the petitioner at the trial on the merits. The petitioner was sentenced on January 27, 1956, and gave timely notice of appeal. Under this fact situation, there was a presumption of petitioner’s desire to appeal as an indigent. Foley v. State, Tex.Cr.App., 514 S.W.2d 449.

The record on habeas corpus is unclear whether counsel was appointed to represent the petitioner on appeal. However, the record reflects that no statement of facts, bill of exception or brief was filed in pursuit of petitioner’s appeal. Therefore, the petitioner was denied effective assistance of counsel on appeal and is entitled to an out-of-time appeal. See Ex parte Perez, Tex.Cr.App., 479 S.W.2d 283. See Garza v. State, Tex.Cr.App., 433 S.W.2d 428. Since it appears that there is no statement of facts available, the petitioner is entitled to a new trial. Ex parte Perez, supra; Ex parte Coleman, Tex.Cr.App., 455 S.W.2d 209; Ex parte Campbell, Tex.Cr.App., 494 S.W.2d 842.

Petitioner is ordered released on this cause from confinement by the Texas Department of Corrections and delivered to the Sheriff of Dallas County to answer the indictment-there pending against him.

It is so ordered.