Ex Parte Williams

587 S.W.2d 391, 1979 Tex. Crim. App. LEXIS 1790

• Court: Court of Criminal Appeals of Texas
• Decided: May 9, 1979
• Docket: 60707
• Status: Published

Opinions

OPINION

ONION, Presiding Judge.

This is an appeal from an order of the 23rd District Court of Brazoria County refusing to discharge the appellant after a hearing on his application for writ of habe-as corpus.

Appellant contends the State failed to show probable cause for his continued detention. The record reflects that the appellant was arrested and charged by complaint with the offense of aggravated rape.

The State called two investigators from the sheriff’s office as witnesses. Neither had any personal knowledge of the offense. The State also introduced a copy of the complaint and the ex parte statement of the complaining witness, who did not testify though shown to be available for that purpose. These instruments were introduced over objection that they were hearsay and, with regard to the ex parte statement, that the appellant was being denied his right of cross-examination.

The rule is well established that when one is held in custody under complaint and seeks release by habeas corpus, it is incumbent upon the State to introduce against him sufficient evidence to show probable cause for holding him in custody. Ex parte Wright, 138 Tex.Cr.R. 350, 136 S.W.2d 212 (1940); Ex parte Livingston, 155 Tex.Cr.R. 218, 233 S.W.2d 503 (1950).

In Ex parte Nicely, 116 Tex.Cr.R. 143, 28 S.W.2d 147 (1930), it was held that the alleged escaped convict’s discharge on habe-as corpus was improperly refused since the only evidence was hearsay in the form of prison records, telegrams and letters from penitentiary authorities. And in Ex parte Hennington, 95 Tex.Cr.App. 495, 264 S.W. 104 (1923), it was held that in a habeas corpus proceeding an ex parte statement, purporting to have been signed by two individuals, neither of whom had testified, was inadmissible.

Ex parte Garcia, 547 S.W.2d 271 (Tex.Cr.App.1977), held that a challenge to probable cause to hold a defendant in custody cannot be defeated in habeas corpus proceeding by a mere showing of the existence of a complaint or accusation.

In the instant case, the State introduced the complaint. This, standing alone, was not sufficient to prevent appellant’s release. Ex parte Garcia, supra. The other instrument was hearsay evidence and should not have been admitted. Ex parte Nicely, supra; Ex parte Hennington, supra.

Eliminating the hearsay evidence, which was introduced over objection, the only evidence is the complaint, which is not sufficient alone to prevent appellant’s release.

The judgment remanding appellant to custody is reversed and appellant is ordered released under this particular proceeding.¹

It is so ordered.

Before the court en banc.

1 . This record does not reflect that the appellant has been indicted.