Summary
holding that Art. 10a "is mandatory and non-compliance therewith renders the conviction void"
Summary of this case from Ex Parte McCainOpinion
No. 29459.
October 23, 1957.
No attorney on appeal for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
This is an original application for writ of habeas corpus by which relator seeks his discharge from the penitentiary and alleges, among other things, that he was not represented by counsel when he was tried and convicted in the District Court of Foard County.
Upon presentation of the application, the Hon. Jesse Owens, Judge of the 46th Judicial District of Texas, was directed to develop the facts and certify them to this Court. In pursuance thereof, a hearing was held before Judge Owens and the facts as developed have been properly certified to us.
The record, as certified, reflects that on November 26, 1956, the relator entered his plea of guilty in Cause No. 829 before the District Court of Foard County to the offense of burglary, waived a trial by jury and that he had no attorney to represent him and none was appointed.
Art. 10a, V.A.C.C.P., provides that before a defendant who has no attorney can agree to waive a jury, the court must appoint an attorney to represent him. This provision of the statute is mandatory and non-compliance therewith renders the conviction void. Hernandez v. State, 138 Tex.Crim. R., 133 S.W.2d 584; Ex parte Rawlins, 158 Tex.Crim. R., 255 S.W.2d 877; Jones v. State, 158 Tex.Crim. R., 257 S.W.2d 301; and Ex parte Kelley, 161 Tex.Crim. R., 277 S.W.2d 111.
The application for writ of habeas corpus is granted and it is ordered that the relator be discharged from the custody of the Texas Department of Correction and delivered by the Department authorities to the custody of the Sheriff of Foard County to answer the indictment pending against him in said Cause No. 829 in the District Court of Foard County.
Opinion approved by the Court.