William Tyrone Harris v. Dr. George J. Beto, Director, Texas Department of Corrections

Fifth Circuit

William Tyrone Harris v. Dr. George J. Beto, Director, Texas Department of Corrections

392 F.2d 191, 1968 U.S. App. LEXIS 7477

CourtCourt of Appeals for the Fifth Circuit

DecidedApril 2, 1968

Docket25000

StatusPublished

Cited by9 cases

This text of 392 F.2d 191 (William Tyrone Harris 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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William Tyrone Harris v. Dr. George J. Beto, Director, Texas Department of Corrections, 392 F.2d 191, 1968 U.S. App. LEXIS 7477 (5th Cir. 1968).

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Opinion

PER CURIAM:

This is an appeal from a denial of habeas corpus after an evidentiary hearing.

There was no denial of court-appointed counsel on appellant’s 1952 appeal from a state court conviction for murder. At his trial and on motion for new trial he was represented by retained counsel, who did not represent him on appeal because his fee for an appeal was not paid. The findings of fact made at the evidentiary hearing, which we do not find plainly erroneous, require the conclusion that it was not made manifest to the trial judge that appellant did not have counsel for appeal, or that appellant had become indigent during the trial, or *192 that he desired counsel for appeal. The right to counsel does not depend upon a request, Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962), but where the defendant is represented at trial by retained counsel it must be made known to the court that he is indigent and no longer has counsel before the duty arises to appoint counsel for appeal. Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33 (1967) ; Pate v. Holman, 341 F.2d 764 (5th Cir. 1965).

The district court did not abuse its discretion in refusing to grant a continuance of the evidentiary hearing.

Affirmed.

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PER CURIAM:

This is an appeal from a denial of habeas corpus after an evidentiary hearing.

There was no denial of court-appointed counsel on appellant’s 1952 appeal from a state court conviction for murder. At his trial and on motion for new trial he was represented by retained counsel, who did not represent him on appeal because his fee for an appeal was not paid. The findings of fact made at the evidentiary hearing, which we do not find plainly erroneous, require the conclusion that it was not made manifest to the trial judge that appellant did not have counsel for appeal, or that appellant had become indigent during the trial, or *192 that he desired counsel for appeal. The right to counsel does not depend upon a request, Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962), but where the defendant is represented at trial by retained counsel it must be made known to the court that he is indigent and no longer has counsel before the duty arises to appoint counsel for appeal. Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33 (1967) ; Pate v. Holman, 341 F.2d 764 (5th Cir. 1965).

The district court did not abuse its discretion in refusing to grant a continuance of the evidentiary hearing.

Affirmed.

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392 F.2d 191, 1968 U.S. App. LEXIS 7477, Counsel Stack Legal Research, https://law.counselstack.com/opinion/william-tyrone-harris-v-dr-george-j-beto-director-texas-department-of-ca5-1968.

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