James Sherman INGRAM, Appellant, v. The STATE of Texas, Appellee.
No. 41151.
Court of Criminal Appeals of Texas.
March 27, 1968.
Rehearing Denied May 8, 1968.
425 S.W.2d 877
In Jones v. Cunningham, 313 F.2d 347 (Fourth Circuit, 1963), counsel was not appointed for the accused until the day before the trial and made no inquiry to determine whether there existed any valid defenses.
In Johnson v. United States, 328 F.2d 605 (Fifth Circuit, 1964), court-appointed counsеl stated that he had neither time nor inclination to properly investigate and prepare for trial.
In Brubaker v. Dickson, 310 F.2d 30 (Ninth Circuit, 1962), was a habeаs corpus proceeding remanded for further proceedings to afford the petitioner an opportunity to support the allegations of his petition that he had been denied effective aid of counsel in that his court-apрointed counsel failed to prepare for trial and that the prisoner‘s defense was withheld not through faulty judgment but in default of knowledge that reasonable inquiry would have produced.
In Roberts v. Dutton, 368 F.2d 465 (Fifth Circuit, 1966), counsel were appointed to represent the defendant in a capital case on the day of the trial. Only one conferred with the accused, for some forty minutes, аnd the trial evidenced a total lack of preparation on their part.
In the instant case there is no showing that аny evidence was available which was not presented on behalf of appellant in his defense.
We are unable to agree that the mere statement by appellant‘s court-appointed counsel that he was “perhaрs a little bit lax” in not talking to appellant about the facts of the case until it was set for trial (a week before trial) shows ineffective assistance of counsel, as the record shows that up to that time appellant had insisted on entеring a plea of guilty. Nor do we agree that because counsel brought out before the jury the fact that appеllant had indicated a desire to enter a plea of guilty such action sustains appellant‘s contention that he wаs ineffective. The matter of entering a plea of guilty was in support of appellant‘s defensive testimony that he еntered the house upon invitation of the prosecuting witness and that they afterward agreed, in order to protect hеr name, for him to enter a plea of guilty to the burglary charge and secure a suspended or probated sentence.
The failure of counsel to file any objections to the court‘s charge does not, under the record, show that hе was ineffective.
As has been stated by this court and other courts, the constitutional right to counsel does not mean errоrless counsel or counsel judged ineffective by hindsight (Fletcher v. State, Tex.Cr.App., 396 S.W.2d 393), “but counsel reasonably likely to render and rendering reasonably effеctive assistance” (MacKenna v. Ellis, 280 F.2d 592 (Fifth Circuit, 1960).
The judgment is affirmed.
Jimmie Lee HAWKINS, Appellant, v. The STATE of Texas, Appellee.
No. 40474.
Court of Criminal Appeals of Texas.
April 10, 1968.
Frank Coffey, Dist. Atty., Truman Power and William A. Knapp, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State‘s Atty., Austin, for the State.
OPINION
WOODLEY, Presiding Judge.
The offense is felony theft of an automobile; the punishment, enhancеd by a prior conviction for burglary, an offense of the same nature, 10 years.
The prior conviction alleged for enhancement was in Stephens County on August 20, 1954.
Proof was admitted over objection, at the hearing on punishment to be assessеd, on April 19, 1967, that appellant was also convicted of burglary in Tarrant County on July 14, 1954, and in Ector County on February 20, 1954.
Appellant‘s first grоund of error complains of the admission of the evidence as to the Tarrant County and Ector County convictions on the ground that such convictions were too remote.
The prior convictions were admissible under the portion of
“Regardless of whether the punishment be assessed by the judge or the jury, evidence may be offered by the State and the defendant as to the prior сriminal record of the defendant, his general reputation and his character.”
Davis v. State, Tex.Crim.App., 419 S.W.2d 648.
The law places no limitation by reason of remoteness on prior convictions offered to show the prior criminal record of the defendant.
We note further that a ten year term in the penitentiary was assessed in each of said prior convictions and, in determining remoteness of a conviction, the computation of time should begin after release from prison. King v. State, Tex.Crim.App., 425 S.W.2d 356; Vaughn v. State, 143 Tex. A.R. 150, 157 S.W.2d 894; Gill v. State, 147 Tex.Cr.R. 392, 181 S.W.2d 276; Toms v. State, 150 Tex. Cr.R. 264, 200 S.W.2d 174.
Ground of error No. 1 is overruled.
Appellant next complains of the court‘s failure to charge on the law of “driving without the owner‘s consent,” a misdemeanor. (
No such issue was raised by the evidence which shows that appellant and two companions were seen driving an automobile from а car dealer‘s lot and were pursued and apprehended after they fled from the car on foot. Westerman v. State, 144 Tex.Cr.R. 101, 161 S.W.2d 95; Hernandez v. State, 148 Tex.Cr.R. 566, 189 S.W.2d 876.
The remaining grоund of error complains of the exclusion of testimony of appellant‘s mother, at the separate hearing on the punishment, to the effect that he had been treated in Peter Smith Hospital for alcoholism and had left the hospital against medical advice only a few hours before the offense was committed.
The mother testified that her son was аn alcoholic and had been treated “by medical doctors for this disease” at Peter Smith Hospital, and had been tо Wichita Falls four times, specifically for the treatment of alcoholism.
Mrs. Flannery was asked where her son had been оn December 8th (the date the car was stolen) and answered: “In Peter Smith Hospital.”
There was no motion to strike the answer of the witness.
If error was preserved it is not such as wоuld warrant reversal of the conviction.
The judgment is affirmed.
CONCURRING OPINION
MORRISON, Judge.
I concur in the affirmance of this conviction, but not upon the reasoning set fоrth in the majority opinion. I find it unnecessary at this time to pass upon the question of the admissibility of extraneous convictions not plead for enhancement, which may have been too remote under the rule announced in Blessett v. State, 168 Tex. Cr.R. 517, 329 S.W.2d 434, upon which the appellant relies.
State‘s Exhibit # 2 contained the judgment and sentence in three cases, including the one alleged for enhancement, and the record reflects that the prosecutor read only “portions” of the exhibit to the jury. There is no showing that they ever saw or heard about the “remote” convictions which had not been plead.
For the reason stated, I join in the affirmance of this conviction.
See also Tex.Cr.App., 416 S.W.2d 428.