*1 417 Shuman, by Clifford Brown & W.
Brown, Lubbock, appellant. for Austin, Douglas, Atty., B.
Leon State’s State.
for the
McDONALD, Presiding Judge. violation of the
The conviction is for Act. Punishment was assessed Securities pro Lindy Q. Mixon, se. peniten- in the $2,000 years fine and 5 at tiary. Austin, Atty., State’s Douglas, Leon B. for the State. appeal not reflect that
The record on does appellant in the trial has been sentenced pro- has been Where no sentence court. MORRISON, Judge. court, is in the this court trial
nounced any order ex- jurisdiction to enter without corpus proceeding This is a habeas Aguirre v. cept appeal. to dismiss the validity a petitioner the of wherein attacks State, Tex.Cr.App., S.W.2d 819. 271 private of a resi- burglary conviction for prior felony two con- night dence at with appeal dismissed. The is alleged enhancement. Petition- victions for finally by er’s case affirmed this Court was 20, 1963, reported is in Mixon on March and State, v. 365 364. S.W.2d Doug- upon Petitioner in this writ relies Meyes People of Cali- las and of State v. 353, fornia, 814, 83 L.Ed. 372 U.S. S.Ct. 9 Q. parte Lindy Ex MIXON. Supreme 2d Court of United 811. The the firmly the in established States that case No. 38535. rule that merits of the one and “where the Appeals of Court Criminal of Texas. only appeal right are indigent an has as of 20, Oct. 1965. counsel, we decided benefit of without the think an unconstitutional line has been Rehearing 15, Denied Dec. 1965. poor.” and drawn between rich represented by petitioner
The was here trial, appeal counsel and notice of at was given 13, 1962, August pauper’s with a oath 1962, duly 8, filed. this Court On October by appointed was notified the court trial represent counsel that he did not intend to petitioner appeal. on 31, 1962, On re- December this Court petitioner, ceived a brief from who was representing appeal pro se, on in himself attorney alleged which he that he “had no since my trial.” *2 418 State, 2, v. 372 S.W.2d January on the case of Donaldson
The case submitted was 1963, 9, January and we affirmed on 1963. 339. retrospective ap- question of There is no 1963, 12, petitioner January the filed On Meyes People plication and v. Douglas of filing for an affidavit extension of time for here. The recent of of California State rehearing, in which he stated his motion for Supreme United States case Court of the he is that he wished to stress “that without Walker, 618, 85 381 U.S. of Linkletter v. attorney an and not have access to does 601, 1731, indicated that 14 L.Ed.2d S.Ct. legal filing information for his motion.” retrospectivity only question arises the of rehearing The motion for was submitted final, cases which are respect with to those 6, February 1963, day peti- on which on the conviction judgment of that is where the asking
tioner filed a that certain legal brief rendered, availability appeal of ex- was the information be him. The furnished motion petition hausted, for for cer- and the time for rehearing February was on overruled the the elapsed date of tiorari had before 20, 1963. opinion. Douglas and Supreme Court’s supra, prior the law to our Meyes, became 23, Subsequently, February 1963,peti- on appeal. disposition petitioner’s final of tioner filed a sworn instrument with this alleged Court in which he that he “has and stated, prayed the relief For the reasons petition being is of this right denied his this order of Court granted for is and the and advice of counsel or access to advice is affirming petitioner’s conviction set by books,” means of law and that “he is a ordered released from Petitioner aside. is pauper without counsel and funds and is penitentiary and confinement in the State entitled to protec- advice counsel in of the is to the Sheriff of Ector ordered delivered prosecution tion or of rights.” his On County where he incarcerated for will be 13, 1963, March the second motion for re- period a in order the days of to afford 90 submitted, hearing was 20, and on March appoint opportunity to counsel trial court an 1963, the second for rehearing motion was appeal represent him this properly to on to overruled opinion. without written Court conviction. In the original from his ap- has event that no such counsel been opinion The in Douglas Meyes, supra, and pointed appeal and has such undertaken was Supreme handed by down the Court of time, within is such relator ordered released the United 18, 1963, March only States on custody. from days prior two to our decision on second motion for rehearing. The rule announced WOODLEY, Judge (dissenting). in Douglas Meyes and was the law of the land petitioner’s when second motion for re- appeal pending Petitioner has no in this hearing overruled, was whether this Court It was and mandate issued court. decided was aware of it at that time or not. The adjourned at a term of this which court Supreme Court requisites enumerated as the ago. years more than two Douglas for Meyes’ and applicability the Appeals If the Court of Criminal has au- affirmative showing petitioner request- that thority pro- to enter an order such as that ed, and was denied the assistance of counsel opinion vided for in the majority again and appeal, on even though it plainly appeared judgment decide whether the of conviction that he was indigent. an reversed, should be or affirmed then the requisites We find present these to be in adjournment issuance of mandate and the the case before us. give finality of the term does not to the disposition appeals. of
This application Court given has to the rule I Douglas Meyes respectfully announced in and in dissent.