Marvin Niles Stubblefield v. Dr. George J. Beto, Director, Texas Department of Corrections

399 F.2d 424, 1968 U.S. App. LEXIS 5980

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 24, 1968
• Docket: 24088_1
• Status: Published

Opinions

PER CURIAM:

The question presented on this appeal from the denial of a petition for the writ of habeas corpus arises in an unusual context. Appellant is serving a life sentence by virtue of his third conviction of a felony less than capital. The third conviction was for burglary with the sentence having been enhanced to life on the basis of two prior felony convictions. See Art. 63, Texas Penal Code. The life sentence was imposed in 1959. The two prior felony convictions were for burglary in 1955 and for driving while intoxicated in 1950. This latter offense was deemed a felony under Texas law because of a 1948 conviction based on a plea of guilty to the misdemeanor charge of driving while intoxicated. See Art. 802b, Texas Penal Code.

No infirmity is alleged as to the prior felony convictions. Appellant’s position is that he was denied counsel when he pleaded guilty to the misdemeanor charge in 1948. In the event he is able to sustain this view, the 1950 felony conviction for driving while intoxicated will fall and the life sentence will likewise fall because of the absence of the requisite number of prior felony convictions for enhancement.

The difficulty with appellant’s position is that there is an adequate factual foundation for the conclusion reached by the District Court that he waived counsel when he entered his plea of guilty to the misdemeanor. The evidence was clear that appellant was not an indigent at the time. He had an income of approximately $6,000 per year from his business. He was arrested in Johnson County, Texas for driving while intoxicated and released on bond shortly thereafter upon the payment of $10.00 to a bondsman. He testified on the habeas hearing that the County Court of Johnson County did not inform him that he might or might not have a lawyer. He stated that the court said to him only that his fine was $50.00. He testified with respect to the County Court proceeding: “* * * I didn’t see a reason for hiring a lawyer when I could pay the fifty dollars and get turned a-loose.” The County Court records reflect only that “ * * * defendant pleaded guilty as charged, after being reminded by the judge of his rights.”

In the view we take of the case, which is that there was intelligent and competent waiver of counsel by appellant, Johnson v. Zerbst, 1938, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461, we do not reach the further question of whether our decisions in McDonald v. Moore, 5 Cir., 1965, 353 F.2d 106; and Harvey v. State of Mississippi, 5 Cir., 1965, 340 F.2d 263, would afford appellant a basis for claiming a Sixth Amendment right to counsel when he was tried by the County Court in 1948.

Affirmed.