Ex parte McDonald , 1972 Tex. Crim. App. LEXIS 1863 ( 1972 )

OPINION

DAVIS, Commissioner.

This is a habeas corpus proceeding under Article 11.07, Vernon’s Ann.C.C.P., by an inmate of the Texas Department of Corrections, attacking as void the conviction under which he is now confined.

A hearing was held before Honorable Carl C. Anderson, Judge of the 54th District Court of McLennan County, at the conclusion of which findings of fact and conclusions of law were filed by the court establishing that petitioner was convicted of murder in Cause No. 11,486, on July 21, 1941, with punishment assessed at life; that petitioner was represented by court-appointed attorney who gave notice of appeal after motion for new trial was overruled on August 28, 1941; that after sentence was pronounced, the petitioner signed a pauper’s oath, requested appointment of attorney for purpose of appeal and preparation of a statement of facts as reflected by exhibit introduced into evidence at this hearing; that at the bottom of said exhibit, there apeared a notation, “Motion Granted,” signed D. W. Bartlett, Judge; that no brief, statement of facts or transcript were ever filed with the Court of Criminal Appeals; that petitioner’s court-appointed counsel withdrew from the case, but no request to withdraw or order permitting withdrawal is reflected by the record; that there is no statement of facts available upon which petitioner may be granted an out-of-time appeal.

The findings of fact are supported by stipulated evidence and exhibits introduced at the hearing.

We agree with the trial court’s conclusion that the relief prayed for should be granted. The petioner was denied effective representation of counsel on appeal and the conviction cannot stand. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33; Ex parte Tullos, Tex.Cr.App., 476 S.W.2d 689; Ex parte Gaines, Tex.Cr.App., 455 S.W.2d 210; Ex parte Marshall, Tex.Cr.App., 445 S.W.2d 212.

The petitioner is ordered released from the Department of Corrections and delivered to the custody of the Sheriff of McLen-nan County to answer the indictment in Cause No. 11,486 pending against him.

It is so ordered.

Opinion approved by the Court.

ROBERTS, J., not participating.