Ex parte Ropollo , 1977 Tex. Crim. App. LEXIS 918 ( 1977 )

OPINION

DAVIS, Commissioner.

This is a post-conviction writ of habeas corpus brought under the provisions of Art. 11.07, V.A.C.C.P. by the petitioner, an inmate of the Texas Department of Corrections.

Petitioner was convicted in Cause no. 124,664 of the offense of robbery by assault, with two prior convictions alleged for enhancement under Art. 63, V.A.P.C., and assessed a life term in the 179th District Court of Harris County on October 31,1967. Notice of appeal was given but, according to the record, petitioner voluntarily withdrew his notice of appeal in this case.

Petitioner filed an application for writ of habeas corpus with the trial court, alleging, among other things, that the life sentence assessed in this cause was void, since he was not represented by counsel, was indigent, and did not waive counsel during the trial of a prior conviction alleged for enhancement. Petitioner’s application for writ of habeas corpus was denied by the trial court, without a hearing or findings of fact and conclusions of law.

Initially, it should be noted that petitioner’s application for writ of habeas corpus .does “state facts, which if true, would entitle petitioner to relief” inasmuch as he alleges that a void prior conviction was used for enhancement purposes because at the time of the conviction he was without counsel, indigent, and did not waive counsel. See Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); Ex parte Swinney, Tex.Cr.App. 499 S.W.2d 101; Ex parte Williams, Tex.Cr.App., 486 S.W.2d 566.

In addition to petitioner’s sworn allegations which have not been controverted by the State, there is attached to petitioner’s application filed with the trial court certain records from the Criminal District Court, Parish of Orleans, in Cause No. 169-027 [one of the cases used for enhancement] reflecting that petitioner and a co-defendant entered pleas of guilty to the offense of armed robbery on April 18, 1961. Punishment was assessed at eight years for both defendants. The records recite that “Fuller [co-defendant] was represented by Mr. Anthony Vesich, Attorney and Ropollo [petitioner] was unrepresented.”

Thus, petitioner’s undisputed allegations are corroborated by the Louisiana trial court records which affirmatively show that petitioner was not represented by counsel. See Burgett v. Texas, supra; Bray v. State, Tex.Cr.App., 531 S.W.2d 633. Petitioner has the further burden to show that he was indigent and did not voluntarily waive his right to counsel during this 1961 Louisiana prior conviction. In the instant case, no effort has been made to controvert appellant’s pleadings that he was indigent. See Ex parte Williams, supra; Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971). Absent an affirmative showing of waiver, the waiver of counsel cannot be presumed from a silent record. See Ex parte Bird, Tex.Cr.App., 457 S.W.2d 559. We find that the record supports petitioner’s contention that the prior conviction was improperly used for enhancement. See Ex parte Stauts, Tex.Cr.App., 482 S.W.2d 638; Ex parte Williams, supra; Ex parte Young, Tex.Cr.App., 479 S.W.2d 45; Ex parte Swinney, supra.¹

It is the State’s position that if the 1961 Louisiana conviction is void, then the sentence can be reformed under Art. 62, V.A. P.C., and would result in no change in petitioner’s sentence.

Before a prior conviction can be used for enhancement under Art. 62, supra, it must be shown that that prior conviction was a conviction “of the same offense, or of one of the same nature.” In the case at bar, the remaining valid and unchallenged prior conviction used for enhancement in this case was the conviction for the offense of “obtaining narcotic drugs by fraud,” a November 16, 1964, Louisiana conviction in Cause No. 185-447.

It is the State’s position that the Louisiana offense of “obtaining narcotics by fraud” is one of the same nature as robbery by assault, the primary offense, and they rely on King v. State, 519 S.W.2d 651, which holds that forgery was a similar offense to robbery by assault. We disagree.

Initially, it should be noted that at the time of petitioner’s conviction the Texas law incorporated a similar offense to Louisiana’s offense of “obtaining narcotics by fraud” in Art. 725b, Sec. 20(1), V.A.P.C., which stated:

“No person shall obtain or attempt to obtain a narcotic drug ... by fraud, deceit, misrepresentation, or subterfuge . . ..”

It is clear then that the offense of obtaining a narcotic drug by fraud, under Texas law, was classified as a narcotics offense, and a conviction for violation of the Narcotic Drug Act is not available for use to enhance punishment under either Arts. 62 or 63, V.A.P.C. See Heredia v. State, Tex. Cr.App., 468 S.W.2d 833, and cases cited therein. For this reason, the remaining unchallenged Louisiana conviction is unavailable for enhancement under Art. 62, supra.

Since a jury determined petitioner’s punishment in this case, the case cannot be remanded to the trial court for assessment of punishment by the court. It follows that petitioner is entitled to a new trial. See Ex parte Olvera, Tex.Cr.App., 489 S.W.2d 586; cf. Ex parte Hill, Tex.Cr.App., 528 S.W.2d 125.

Petitioner is entitled to the release from further confinement under the conviction attacked and shall be delivered to the Sheriff of Harris County to answer the indictment in Cause No. 124,664.

It is so ordered.

Opinion approved by the Court.

OPINION

1 . Since petitioner’s trial occurred prior to the Supreme Court decision in Burgett v. Texas, supra, no claim can be made that petitioner has waived this contention by failing to object at trial. See Ex parte Casarez, Tex.Cr.App., 508 S.W.2d 620; Ex parte Flores, Tex.Cr.App., 537 S.W.2d 458.