*1 OPINION
MORRISON, Judgе. application writ habeas This is an for corpus brought District of San by relator, County an imate Patricio Corrections, in at- Department which he rape May for tacks his conviction punishment assessed 1944 wherein imprisonment. for life Miller, Judge Honorable H. John has certified to this Court law findings fact and conclusions of illegally that relator is which he certified convic- time of his confined because at the be- plead guilty tion he waived capital for a fore the court offense. and conclusions findings With agree. confine- from ordered released
Relator is San the Sheriff of delivered to ment to be County there stand Patricio against him. indictment so ordered. attorney Vance, Atty., Carol S. Dist. C. James
Brough, Atty., Houston, Asst. Dist. Vollers, Atty., Austin, D. State’s Jim the State. OPINION WILSON, Appellant, Woodrow BELCHER, Judge. possession of is the unlawful offense The STATE of punishment, (sеcond offense); heroin life. Appeals of The record reflects Oct. represented at his trial retained counsel Chargois, member of the Harris K.
J. County Bar. Following judgment rendered on jury’s verdict Steen, Harris also member a be- Bar, presented County who filed principle triаl a motion lated ground being denied at his trial. aid of counsel effective
746 pauperis. in The appeal is forma trial and the evi- The
The motion for
by
this court
virtue
record reaches
of a
having been heard
adduced thereon
dence
appeal
aр-
in
overruled,
on
filed
and
appeal
notice of
oath
and the motion
proved by
time after
the trial court some
by
E.
given
Counsel
Steen
was
sentencing,
prior
approval of the
but
to the
appellant’s behalf.
on
record,
etc.
completion
the
by cеrtified mail of
Notice
by
has
filed
the
on
No
been
approval
the record
later
the
of
and
of
appellant in the trial cоurt or in this
Court
given
appeal
to Counsel William
was
though
represented at the trial and
he was
Steen.
hearing
the
on the motion for new triаl
on
appellant’s
in
filed
brief has been
by
attorneys, both
different
retained.
two
appears to have
behalf. Counsel Steen
Counsеl,
the
who
appeal
regard
in
this
taken
action
to
no
trial
hearing on the motion for new
the
poor
“I am
appellant’s affidavit:
too
since
sentencing
appeal
and at the
notice of
in the above
pay the costs of court
notified the
this
given,
was
has
Clerk of
and I am unable
styled and numbered cause
ap-
that he
neither retained or
was
therefor,”
the
security
filed and
give
purpose
appeal.
pointed for the
of
We
prepare
reporter to
ordered the court
record,
in the
find
motion to withdraw
no
of facts.
file the statement
and
reflect that
called
nor does the same
trial
attention even
this matter to
court’s
the clerk оf
has advised
Counsel Steen
completion
notified
the
when he was
been
that he has “never
by letter
this Court
appeal.
record
by thе
con-
matter” and
appeal
the
of this
nection with
therefore,
question,
first
which
The
he
far
concerned
would
that as
as
the cir-
presents itself
whether under
is
in the
any
arguments
oral
“appear for
not
cumstances,
required
trial court was
the
capacity.”
other
case or
appellant,
appoint counsel for this
who was
imposed
penalty
by
confined
virtue
judge may see
the trial
In
that
order
the
he was
at the time
court determined
not denied
that
is
purpose
the
appro-
appeal,
deem
counsel on
appeal
not
“appointment of counsel
appeal
abated
the
priate
by
dependent upon
request
therefоr
a
the
appeal
returned to
record
desire
indigent defendant whose
as
in that court
proceeding
further
Bosler, 386
Swenson
U.S.
is manifеst.
yet
not
appeal had
though
record on
996,
258,
parte
Ex
Therefore, appropriate I deem be abated to allow hearing, after a whether this appointed was entitled to represented by or if whether the non- failure such CARTER, Appellant, Isаac James brief, appellate to file etc., so, requested expected do duty amounted to dereliction of The STATE deny stаge proceed- counsel at a crucial ings. finding In the view of affirmative Appeals in either situation Sept. 22, 1969. be should afforded Rehеaring Denied Nov. 1969. appellate time file an brief in in which to proceed- the trial court and such other
ings conducted in be 40.09, V.A.C.C.P., under Article This would true unless review. appellant has the trial court finds that the intelli- knowingly, waived counsel on voluntarily, gently and and such waiver record, thе trial court unless manifest of finds retained and his that counsel was file an brief was with
failure to knowing acquiescence of the distinguished 938, principally at bar can be S.W.2d because The ease strictly State, Tex.Cr.App., limited oath in Galvin. from Galvin v.