Ex Parte Thomas

429 S.W.2d 151, 1968 Tex. Crim. App. LEXIS 982

• Court: Court of Criminal Appeals of Texas
• Decided: May 15, 1968
• Docket: 41290
• Status: Published

Opinions

OPINION

WOODLEY, Presiding Judge.

The petition for writ of habeas corpus which the Clerk of this Court was directed to file and set was presented to the Judge of the 70th District Court of Ector County, where the conviction was had, and was denied by said District Judge upon his finding that the sole allegation of petitioner failed to present any issue of fact on the question of whether petitioner was illegally restrained in that the decision in Washington v. State of Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019, upon which petitioner relied, was neither applicable nor controlling.

Certified copies of the petition for the writ and for rehearing denied by the District Judge, and of the order denying same, have been transmitted to this court as directed in the order of the District Judge.

In the absence of any petition, brief or request to this court seeking relief or attacking the findings and conclusions of the Judge of the 70th District Court, the petition denied by the District Judge is not before this court for action under Art. 11.-07 Vernon’s Ann.C.C.P.

To issue the writ of habeas corpus and grant relief under our original jurisdiction would require that, contrary to the findings and conclusions of the District Judge, we find and conclude that Washington v. State of Texas, supra, relied on by petitioner, should be extended complete retroactivity or at least that we conclude that such is otherwise controlling and should be applied retroactively under the facts alleged in applicant’s petition.

The witness Fuller, who was not allowed to testify as a defense witness for Washington, had been convicted for the same murder for which Washington was on trial and was the only person other than Washington who knew exactly who fired the shot and whether Washington had at the last minute attempted to prevent the shooting. It was undisputed that Fuller would have testified that Washington pulled at him and tried to persuade him to leave, and that Washington ran before he (Fuller) fired the fatal shot.

Unlike Washington, appellant did not testify and offered no affirmative defense at his trial for burglary.

The petition denied by the trial judge contains allegations apparently taken from the Supreme Court’s opinion in Washington v. State of Texas, supra, such as that he was arbitrarily denied the right to put on the stand a witness “who was physically and mentally capable of testifying to the events, * * * and whose testimony would have been relevant and material to the defense.”

These allegations are but conclusions. Absent are any fact allegations as to what the witness would have testified had he waived his rights and testified as a defense witness, or facts showing how appellant was prejudiced by the ruling of the trial judge at his trial.

In an appeal pending at the time Washington v. State of Texas, supra, was decided, this court held that the decision of the Supreme Court was applicable and controlling and reversed. Overton v. State, Tex.Cr.App., 419 S.W.2d 371.

We are aware of no decision by any court holding that Washington v. State of Texas, supra, should be given complete retroactivity.

The question of whether Washington v. State of Texas, supra, was controlling was before this court in Ex parte Zerschausky, Tex.Cr.App., 417 S.W.2d 279. The majority held that it was not.

In Zerschausky v. Beto, 274 F.Supp. 231, Chief Judge Spears, of the United States District Court for the Western District of Texas, reached a similar conclusion and observed that if Washington v. State of Texas were to be considered as otherwise controlling, he was not convinced that it should be applied retroactively in the Zerschausky case.

The petition for writ of habeas corpus filed in this court is dismissed.