Ex parte Cooper
- Reporters:
- ,
- Before:
- Belcher
OPINION
BELCHER, Judge.This is а habeas corpus proceeding attacking petitioner’s conviction in Cause No. *820D-5348-J in Criminal District Court No. 3 оf Dallas County, Texas, which was affirmed by this Court by Per Curiam opinion in our Cause No. 35,290 on January 30, 1963.
After hearing, Hon. James B. Zimmerman, present judge of said Criminal District Court Nо. 3 of Dallas County, granted the writ and found:
“II.
“Subsеquent to his trial, Petitioner timely requested the Court to appoint him counsеl for his appeal. Petitioner was indigent at trial and upon appeal. The Court appointed attоrney H. Glynn Windham to represent Petitioner in the matter of his appeal. Said counsel withdrew and the trial court failed to appoint another attorney to represent Petitionеr.
“HI.
“Judge Joe B. Brown, the judge presiding over Petitioner’s trial, has since the day of the trial become deceаsed. The attorney who represented Petitioner at trial and was aрpointed to represent Petitioner upon appeal has also become deceasеd. Further, the court reporter who took down the notes from the trial has died, and the notes are no longer available.
“IV.
“Petitioner’s allegation that he was denied his appeаl is with merit as a matter of fact and lаw.
“V.
“Because no record is available upon which an out-of-time аppeal might be granted, Petitionеr is granted a new trial in the matter set оut above. Petitioner’s application for Habeas Corpus is with merit and is hereby granted. The facts found by this Court tо be true, set out herein above, were brought out at a hearing on Petitiоner’s Application for Writ of Habeas Corpus.”
The evidence adduсed at the hearing reflected by thе statement of facts supports the findings and conclusions.
The convictiоn in the above cause is set asidе and petitioner is remanded to the custody of the Sheriff of Dallas County to answer the indictment in said cause charging him with the offense of rape.