Vern Wilmer Carpenter v. Dr. George J. Beto, Director, Texas Department of Corrections

Fifth Circuit

Vern Wilmer Carpenter v. Dr. George J. Beto, Director, Texas Department of Corrections

421 F.2d 847, 1970 U.S. App. LEXIS 10976

CourtCourt of Appeals for the Fifth Circuit

DecidedJanuary 29, 1970

Docket28068_1

StatusPublished

Cited by3 cases

This text of 421 F.2d 847 (Vern Wilmer Carpenter v. Dr. George J. Beto, Director, Texas Department of Corrections) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Vern Wilmer Carpenter v. Dr. George J. Beto, Director, Texas Department of Corrections, 421 F.2d 847, 1970 U.S. App. LEXIS 10976 (5th Cir. 1970).

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Opinion

PER CURIAM:

In this pro se case appellant has failed to file a brief within the time fixed by Rule 31, F.R.A.P., and it is therefore appropriate to dispose of this ease summarily pursuant to Rule 9(c) (2) of this Court. Stout v. Broom, 5 Cir.1969, 406 F.2d 758.

This appeal is taken from an order of the district court denying the petition of a Texas convict for a writ of habeas corpus. Appellant is presently confined on a five year sentence for driving while intoxicated with a prior similar offense used for enhancement of punishment. Appellant filed a petition for habeas corpus in the trial court contending that he was denied counsel on his first conviction for drunken driving. Without holding an evidentiary hearing, that court found that appellant had been denied counsel as alleged. On review, the Texas Court of Criminal Appeals refused to accept the findings of the trial court and denied relief.

Appellant then filed this petition for habeas corpus in federal court. After an evidentiary hearing the court below denied the petition without prejudice to appellant to file a petition in the state court pursuant to Article 11.07, Tex.C.Crim.P. We agree with the decision of the district court and affirm.

This court has consistently held that even though a state convict has exhausted all state remedies available prior to the effective date of Article 11.07, as amended, the issue should be re-presented to the Texas court for redetermination under Article 11.07, as amended, before he will be considered to have exhausted his available state remedies. Woolsey v. Beto, 5 Cir.1969, 412 F.2d 748; Bruce v. Beto, 5 Cir.1968, 396 F.2d 212; State of Texas v. Payton, 5 Cir. 1968, 390 F.2d 261. Appellant’s habeas corpus petition in the state trial court was filed before the effective date of the amendment to Article 11.07 which amendment provides for a full eviden-tiary hearing on contested issues of fact. Appellant has therefore not exhausted all available state remedies.

The judgment below is affirmed.

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PER CURIAM:

In this pro se case appellant has failed to file a brief within the time fixed by Rule 31, F.R.A.P., and it is therefore appropriate to dispose of this ease summarily pursuant to Rule 9(c) (2) of this Court. Stout v. Broom, 5 Cir.1969, 406 F.2d 758.

This appeal is taken from an order of the district court denying the petition of a Texas convict for a writ of habeas corpus. Appellant is presently confined on a five year sentence for driving while intoxicated with a prior similar offense used for enhancement of punishment. Appellant filed a petition for habeas corpus in the trial court contending that he was denied counsel on his first conviction for drunken driving. Without holding an evidentiary hearing, that court found that appellant had been denied counsel as alleged. On review, the Texas Court of Criminal Appeals refused to accept the findings of the trial court and denied relief.

Appellant then filed this petition for habeas corpus in federal court. After an evidentiary hearing the court below denied the petition without prejudice to appellant to file a petition in the state court pursuant to Article 11.07, Tex.C.Crim.P. We agree with the decision of the district court and affirm.

This court has consistently held that even though a state convict has exhausted all state remedies available prior to the effective date of Article 11.07, as amended, the issue should be re-presented to the Texas court for redetermination under Article 11.07, as amended, before he will be considered to have exhausted his available state remedies. Woolsey v. Beto, 5 Cir.1969, 412 F.2d 748; Bruce v. Beto, 5 Cir.1968, 396 F.2d 212; State of Texas v. Payton, 5 Cir. 1968, 390 F.2d 261. Appellant’s habeas corpus petition in the state trial court was filed before the effective date of the amendment to Article 11.07 which amendment provides for a full eviden-tiary hearing on contested issues of fact. Appellant has therefore not exhausted all available state remedies.

The judgment below is affirmed.

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421 F.2d 847, 1970 U.S. App. LEXIS 10976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vern-wilmer-carpenter-v-dr-george-j-beto-director-texas-department-of-ca5-1970.

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