Ex parte Nettie B. DANTZLER.
No. 57612.
Court of Criminal Appeals of Texas, Panel No. 1.
June 7, 1978.
536 S.W.2d 536
In conclusion, I pose this question to the majority: If, as the majority holds, the rule is simply that in the event counsel is not afforded an indigent charged with an offense carrying possible imprisonment, the sentence cannot include imprisonment, then, who is to advise the indigent defendant of this critically important point of law in the event imprisonment is nevertheless imposed?
In light of the foregoing, I respectfully dissent.
Douglas H. Parks, Dallas, for appellant.
Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
OPINION
W. C. DAVIS, Judge.
This is an application for writ of habeas corpus,
Petitioner was convicted on a guilty plea of two offenses of theft of property, $200 to $10,000,
The applicant alleges that she is entitled to relief as the District Court lacked jurisdiction and therefore the convictions are void. In support of her contention, she argues that Section 34 “Welfare Fraud” of the special Public Welfare Act statute,
In his findings of fact and conclusions of law, the trial court stated that, “Nowhere in the court‘s records of these cases is there any evidence that the charges against petitioner were actually based on welfare fraud. The Court, however, after investi
The application for writ of habeas corpus is granted.
The judgments are reversed and the indictments dismissed.
En banc.
OPINION
ON COURT‘S OWN MOTION FOR REHEARING
ROBERTS, Judge.
On original submission, the Court was confronted with the issue of whether the appellant‘s two convictions for theft of property pursuant to
“Nowhere in the court‘s records of these cases is there any evidence that the charges against petitioner were actually based on welfare fraud. The Court, however, after investigating petitioner‘s cases has determined that petitioner‘s cases were, in fact, based on welfare fraud. . . . . . The Court finds that petitioner‘s case is governed by Jones v. State, 552 S.W.2d 836 (Tex.Cr.App.1977) and recommends the relief be granted.”
However, on original submission we did not address the fact that the record before us does not contain a transcription of the court reporter‘s notes from the appellant‘s convictions. On the Court‘s own motion,3 we have granted rehearing to consider the effect, if any, that the absence of the transcription of the court reporter‘s notes from the appellant‘s convictions will have on our original opinion.
The threshold question is whether this Court will consider the appellant‘s contention. Essentially, the appellant is asserting an evidentiary contention. That is, the appellant‘s contention is that the evidence adduced at the trials reveals that the prosecutions were for welfare fraud, not felony theft.
It is well established that the sufficiency of the evidence may not be collaterally attacked. Owens v. State, 540 S.W.2d 324 (Tex.Cr.App.1976); Gaines v. State, 501 S.W.2d 315 (Tex.Cr.App.1973). However, in Ex parte Moffett, 542 S.W.2d 184 (Tex.Cr.App.1976), we created an exception to the foregoing rule which prohibits collateral attacks on the sufficiency of the evidence. In Moffett, we allowed the defendant to col
Since our decision in Moffett, we have twice addressed the issue of whether a defendant‘s contentions fell within the purview of the exception to the general rule created in Moffett.
In Ex parte Murchison, 560 S.W.2d 654 (Tex.Cr.App.1978), the defendant was convicted of assault with intent to commit rape, enhanced by two prior felony convictions. On appeal, we dismissed the appeal.4 In an application for writ of habeas corpus, the defendant contended that the State‘s proof of the first prior felony conviction showed on its face that the imposition of his sentence had been suspended and that he had been placed on probation. The defendant also contended that the State did not offer proof that his probation in the first prior felony conviction had been revoked and the execution of sentence imposed. Thus, the defendant contended that there was no evidence that the first prior felony conviction was final and therefore it could not be used for enhancement purposes. We there cited Ex parte Moffett, supra, and held that the defendant‘s no evidence contention was in fact grounded on an allegation that he was denied due process of law and that the finality of the first prior felony conviction used for enhancement was subject to collateral attack by habeas corpus. We further noted, however, that,
“[T]he allegations contained in the petitioner‘s application for habeas corpus are supported by the record from the appeal of the conviction for assault with intent to commit rape.” Ex parte Murchison, supra at 655.
Thus, it is clear that the availability of the record from the appeal of the conviction for assault with intent to commit rape, which contained a transcription of the court reporter‘s notes at the defendant‘s trial, was essential to our review of the defendant‘s contention. Of course, we expressed no indication of the effect, if any, that the absence of the record from the defendant‘s trial, including a transcription of the court reporter‘s notes, would have had on our determination that the appellant was advancing a no evidence contention as opposed to an insufficiency of the evidence contention.
However, shortly after our decision in Ex parte Murchison, we delivered our opinion in Wolfe v. State, 560 S.W.2d 686 (Tex.Cr.App.1978). In Wolfe, the defendant was convicted for criminal mischief. The defendant was given a five-year probationary term. The defendant‘s probation was subsequently revoked and he appealed that revocation. On appeal, the defendant contended that his conviction for criminal mischief was void. The defendant asserted that the only evidence in the record to support his conviction for criminal mischief was his signed judicial confession, that his judicial confession revealed that the offense was committed on December 21, 1977, but that the indictment, which was returned by the grand jury on February 4, 1977, showed that the offense had been committed on December 21, 1976. Thus, since the State is confronted with the burden of proving that the offense was committed prior to the return of the indictment,5 the defendant contended that there was no evidence to support his conviction for criminal mischief.
We there noted that “[t]he record before us supports the appellant‘s contention” (emphasis in original). Wolfe v. State, supra at 688. However, we went on to state that:
“[t]he record before us does not contain a transcription of the court reporter‘s notes
from the trial on the appellant‘s plea of guilty to the charge of criminal mischief. Without that transcription, we are unable to ascertain whether other evidence was introduced to support the appellant‘s conviction. We therefore hold that the appellant‘s contention does not fall within the purview of Ex Parte Moffett, supra, but is merely an impermissible attempt to collaterally attack the sufficiency of the evidence. Appellant‘s contention is overruled.” (Footnote omitted).
Thus, in Wolfe, the absence of the transcription of the court reporter‘s notes from the defendant‘s trial for criminal mischief defeated his no evidence contention because, without the transcription of the court reporter‘s notes, we could not ascertain what the evidence at trial, if any, demonstrated.
Applying the principles of Moffett, Murchison, and Wolfe to the present case, we note that the record before us does not contain a transcription of the court reporter‘s notes from the appellant‘s trials. Thus, we are unable to verify, from the records before us, that the appellant‘s convictions were, in fact, based on welfare fraud. Therefore, we hold that the appellant has not advanced a no evidence contention. Rather, as was the situation in Wolfe, the appellant‘s contention is merely an impermissible attempt to collaterally attack the sufficiency of the evidence. It is clear that our opinion on original submission was erroneous and we order it withdrawn.
The appellant‘s requested relief is denied.
It is so ordered.
En banc.
DOUGLAS, ODOM and DALLY, JJ., concur in the results.
VOLLERS, Judge, concurring.
The real question presented by this application for writ of habeas corpus is whether or not a conviction which is valid upon its face can be attacked by habeas corpus on the proposition that the prosecution should have been originally instituted under a special statute rather than a general statute.
It is appellant‘s contention that the prosecution should have been brought for welfare fraud under
It should be noted that the allegations in the indictment are sufficient to allege an offense under Section 31.03 of the Penal Code, and there is no suggestion that the evidence does not sustain those allegations. Therefore, the question presented here is not one of “no evidence” to sustain a collateral attack upon a conviction. See Ex parte Moffett, 542 S.W.2d 184. Since the attack made here by the petitioner is not upon the sufficiency of the evidence and does not suggest that there is no evidence to support the indictment under which he was convicted, the question of whether or not a statement of facts is presented along with the application is immaterial.
I concur in the result.