Ex Parte Wilson
- Reporters:
- ,
- Before:
- McDonald
Lead Opinion
This is аn application filed by petitioner, an inmate of the Texas Department of Corrections, with the District Court of Winkler County, Texas, for a writ of habe-as corpus. Pursuant to Art. 119, Vernon’s Ann.C.C.P., that Court made the writ returnable to this Court, together with the transcript and application. We shall treat the case as an original application made to this Court.
Petitioner alleges in his applicаtion that he was indigent at the time he was convicted and sentenced to 23 yеars for the offense of robbery by firearms on January 2, 1963, by the District Court of Winkler County, Texas, and that because of his indigent status he was unable to obtain appеllate counsel.
We observe that petitioner has attached to his application an affidavit from Honorable Don M. Nugent, dated October 15, 1963, in which Mr. Nugent relates that he was appointed as counsel for petitionеr in the trial of his case in Winkler County, Texas. Mr. Nugent states that he and petitioner disсussed at length various aspects of the case prior to the actual trial thereof and that if, after the hearing and in the event there was a conviction, and in his opinion the court had committed material error in the trial of the case that he would assist Mr. Wilson (petitioner) with an appeal to this Cоurt. Mr. Nugent stated that on the other hand, if, in his opinion, there was not material error committed that he would simply make all arrangements necessary for an appeal and leave it entirely up to Mr. Wilson and/or his family to make further arrangements. Mr. Nugent further related that after the trial Mr. Wilson voiced the opiniоn that he would like to appeal the case to this Court, but that he advised him at that time that in his opinion there was no material error in the record and thаt he could no longer be associated with the case. Mr. Nugent stated that he did notify the court reporter and the district judge that the Wilson family might want a transcriрt of the proceedings, including a statement of facts and that he prepared and had executed an affidavit in support of the pauper’s oath showing that petitioner was financially unable to employ further counsel, which he retained.
*136We find no showing of notice of appeal from said сonviction. It is obvious to us that petitioner was not deprived of the effeсtive assistance of counsel, as shown by the affidavit of Mr. Nugent. Petitioner has made no showing that he was represented by incompetent counsel on thе trial level. He evidently relied upon the advice given him by attorney Nugent and was content to abide by it. There is no showing that petitioner ever filed the pauper’s oath and sought a record to appeal his case to this Cоurt, nor did he request the trial court to appoint other counsel for him. We think thаt Mr. Nugent fully discharged his duty to petitioner. Although petitioner “voiced the opinion that he would like to appeal the case to this Court”, it was his responsibility tо take the necessary steps to make his opinion a reality by notifying the triаl judge and filing his pauper’s affidavit.
Finding no merit in petitioner’s application, thе relief sought is denied.
Lead Opinion
ON MOTION FOR REHEARING
MORRISON, Judge.It is urged that Pate v. Holman, 5 Cir., 341 F.2d 764, requires that petitioner’s conviction be held to be void. Petitioner relied upon an affidavit made by his court appointed cоunsel which we discussed in our original opinion. In such affidavit there is no showing that aрpellant ever made his wish for appellate review known to the trial judgе or to any of the State officials enumerated in Pate v. Holman, supra.
Wе do not construe Pate, relied upon by petitioner, as holding that a cоurt appointed attorney is such a state official. It should be remembered that Article 494a V.A.C.C.P. provides for compensation of attorneys only for bоna fide appeal. It is clear from Attorney Nugent’s affidavit that he did not consider petitioner’s case as one which would merit a bona fide appeal.
Petitioner’s motion for rehearing is overruled.