463 S.W.2d 17 | Tex. Crim. App. | 1971
OPINION
This is an application for a writ of ha-beas corpus by an inmate of the Department of Corrections. Petitioner was convicted in the Criminal District Court No. 2 of Dallas County, Texas on March 6, 1965 for the felony offense of robbery. The petitioner’s conviction in Cause No. 2028 in the Tenth Judicial Circuit Court of the State of Alabama was used by the state for the purpose of enhancement in this cause. Petitioner was sentenced to life imprisonment as a result of the robbery conviction.
On the third day of April, 1970 there was a hearing before the judge of the Criminal District Court No. 2 of Dallas County, Texas on this application. The court found the above facts and found further that on October 21, 1960 in said Cause No. 2028 in the State of Alabama, probation originally granted was revoked. The court further found that petitioner was not represented by counsel at the time of the revocation of probation, and that the petitioner was indigent at such time and could not afford counsel.
The trial court found in his conclusions of law that the petitioner’s Texas conviction enhanced by the Alabama conviction could not stand, and that the petitioner was entitled to a new trial for the Texas offense.
The court did not find, however, that the petitioner did not waive the services of an attorney at the time that his probation was revoked.
The relief prayed for is denied without prejudice to petitioner’s right to secure such finding as is 'required by Ex parte Barnes, Tex.Cr.App., 456 S.W.2d 400 and by Ex parte Fuller, Tex.Cr.App., 435 S.W.2d 515.
It is so ordered.
