Ex Parte Kellison

Full title: Ex parte Virgil KELLISON

Court: Court of Criminal Appeals of Texas

Date published: Jan 10, 1968

422 S.W.2d 729 (Tex. Crim. App. 1968)

Opinion

No. 40998.

January 10, 1968.

Appeal from 100th Judicial District Court developed the facts. The Court of Criminal Appeals, Dice, J.

John T. Forbis, Childress (By Court Appointment), for relator.

John Gillham, Dist. Atty., Clarendon, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

DICE, Judge.

This is a habeas corpus proceeding attacking petitioner's conviction for unlawfully possessing a forged instrument, with punishment enhanced to life imprisonment under Art. 63, P.C.

The conviction was in Cause No. 1990 in the District Court of Childress County on January 16, 1939. Petitioner is presently confined in the Texas Department of Corrections under said conviction and life sentence.

From facts certified to this court by the Honorable Charles L. Reynolds, Judge of the 100th Judicial District Court of Childress County, after a hearing held under Art. 11.07, C.C.P., it appears that petitioner was not represented by counsel at the trial and at such time was indigent and did not waive the services of an attorney. It is also made to appear that petitioner was not represented by counsel at the time of his conviction in the State of Oklahoma, in the year 1932, for forgery, second degree, which was one of the convictions used by the state to enhance the punishment.

Under the decision of the Supreme Court of the United States in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, and subsequent opinions by that court, petitioner's conviction is void. See, also, Ex parte Williams, Tex.Cr.App., 420 S.W.2d 931, opinion delivered November 22, 1967, and cases there cited.

The application for writ of habeas corpus is granted, and the petitioner, having served in excess of the maximum of five years — which could have been legally assessed for the primary offense of unlawful possession of a forged instrument, Art. 998, P.C. — is ordered released from further confinement under the conviction in Cause No. 1990. Ex parte Puckett, 165 Tex.Crim. R., 310 S.W.2d 117; Ex parte Pruitt, 139 Tex.Crim. R., 141 S.W.2d 333.

It is so ordered.