*1 opportunity him the to cross-examine those witnesses as testimony. guarantees men-
To this destruction the constitutional tioned, protest, I can enter solemn which I but do. Richard Bernard Johnson October 1956. Appellant’s Reheаring Motion for Overruled
(Without Opinion) Written Peyton, Houston, Allie appellant. L. Walton,
Dan Attorney, Eugene Brady District and Thomas White, D. Attorney, Houston, Assistants and Leon District Douglas, Attorney, Austin, State’s the state.
DICE, Judge.
Relator, System, an inmate of the Texas Prison seeks corpus release writ of certain habeas from confinement under judgments of convictiоn entered him 19, 1955, County Harris Court No. on 74554, upon Causes Nos. capital jury. less than to offenses and waiver of trial alleges
Relator of conviction are void to reflect district because records executed a written consent the waiver of a in ac- V.A.C.C.P., provisions cordance with executed. in fact no such consent was granted Langston King,
The writ was Honorable G. Judge of County, Criminal Court No. of Harris the terms this in accordance returnable to
made V.A.C.C.P. *2 following judgments recitation: the the contains Each of * * * having approval of consent and “and the Dеfendant jury Attorney herein and a and for the waives the Court guilty open pleaded contained in to the Indictmеnt herein.” Deputy Clark, Clerk upon being relator Office, a witness called Clerk’s as in- four cases
testified that he еxamined the in the had executed failed to find in of them a volved and giving attorney any assistant his writ- of the district or waivеr approval by jury. fur- a of a trial He ten consent and to waiver dis- testified that he as in the ther when acted clerk guilty; attorney pleas trict the waivers in all three or four hundred waivers written past year filed; he had seen subsеquent to the date of relator’s convictionthe building had moved from one to another. the cases beеn judgments, support Assist- In said state called former Dunn, that, on ant District Thoms who testified C. acting capacity, in such and wаs associ- he was attorney’s one-half ated the district office for three and years prior time; he awаre that a written to that was guilty, pleading defendant, a waiver had to be before always jury; practice could waive a it was his to file sign waiver; that for while it was the custom to a blank, defendant waiver in and when it was found out thаt the guilty attorney plead the assistant district desired to would give prior clerk, out it to the sometimes fill the name and He sometimes after the court admonished the defendant. further independent he had recollection of whether he testified that a not. filled out waiver relator’s cases or Judge King practice testified it was the in his сourt attorneys file a the state’s written waiver cases where waiving jury; pleading and that a defendant was year . relator’s cases or were tried he had admonished two before attorneys clerk for the state and thе “watch out for filing constantly and the of the written consent on waiver part of the State.” that the relator nоt shown concluded has a failure haveWe supra. with Art. being of conviction under which jury with the confined recite rеlator’s of a was waiver judg- the state. The ments therefore are unlike in Ex Parte relator, upon by relied wherе there in the was an entire reference absence supra. requirements The record is and at the time thаt both before practice the relator was it the district convicted was the attorney’s trials. office file consents in waiver Foster, of this proof Proof fact unlike the made in upon by 162 Texas Cr. R. relied also filing where а of not the district waivers attorney was shown. *3 prayed The relief for is denied.
Opinion approved by the Court.
DAVIDSON, Judge, dissenting.
Each of the several entered upon comply their face to with of the mandate Art. Ver- C.C.P., non’s that it is not shown or recited therein that the attorney representing writing the state in each case consented by jury by waiver of trial and that such written consent was papers filed in the of each case. deputy
The district clerk who had of the records papers in the cases mentioned testifiеd as follows: any “I do showing not find in these cases record that duly District torney or his authorized Assistant District At- any by jury waiver of triаl before the defendant entered of of these cases. I find no such written and waiver filed in the of of those cases.” testimony then,
This was not denied. So because of the ab- showing sence of the consent of the relаtor or a among papers, undisputed such consent was filed evi- mandatory provisions dence shows of the statute re- complied ferred to not were with. failing clearly are invalid
36 608, 91 State, R. Cr. Schoolcraft v. statute. Sеe: 520; Turner, parte 361; parte 2d Ex Ex 290 S.W. S.W. 2d Foster, parte 761; 2d 283 Texas S.W. 631; Thompson R. v. Texas Cr.
Texas Cr. R. foregoing, invalid are In additiоn non-compliance provision of Ver- of with that reason C.C.P., “that requires said consent non’s by which Minutes of the of record on the the Court shall be entered * * * .” Such, judgment, necessity, requires which court, entry of record on the of the show minutes among state’s counsel was of the case. prima
My case brethren overturn this facie of fаilure comply with the mandate of statute and the showing because it was the evidence violation of mandate to file custom for the state right of his written consent by jury. My the waiver the accused sustaining position, authority citе brethren and I know of none. that, hearsay, innuendo, here,
I know brethren presumption impeaching are of а court contrary. positive testimony the face of *4 necessary sentence,
A valid without which there can be no valid sentence. the record before this court relator entitled
Under to be discharged incarceration under from further mentioned.
I dissent. Lovelace v. State Cal