Ex Parte Pennington

433 S.W.2d 701 (1968)

Ex parte Johnny Fred JENKINS.

No. 41753.

Court of Criminal Appeals of Texas.

November 13, 1968.

Joe Cannon, Groesbeck, for appellant.

Holloway Martin, Dist. Atty., Groesbeck, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

DICE, Judge.

This is an original application for writ of habeas corpus, presented to the Honorable Clarence Ferguson, Judge of the 77th Judicial District Court of Limestone County, by which petitioner seeks his release from confinement in the Texas Department of Corrections.

After a hearing held under the provisions of Art. 11.07, Vernon's Ann.C.C.P., Judge Ferguson granted the writ upon a finding that petitioner was being illegally restrained, and filed his findings of fact and conclusions of law, which, with the entire proceedings, have been transmitted to the clerk of this court.

From the record, it is shown that on October 21, 1947, the petitioner entered his plea of guilty in Cause No. 4123-A before the District Court of Limestone County to the offense of robbery by assault, waived a trial by jury, and was assessed punishment at confinement in the penitentiary for ninety-nine years.

Petitioner was without counsel and none was appointed to represent him.

Art. 1.13, formerly Art. 10a, C.C.P., in effect at the time, provides that before a defendant who has no attorney can agree to waive a jury the court must appoint an attorney to represent him. The provision is mandatory and failure to comply renders the conviction void. Ex parte Rawlins, 158 Tex. Crim. 346, 255 S.W.2d 877; Ex parte Ross, 165 Tex. Crim. 246, 305 S.W.2d 958; Ex parte Higginbotham, Tex.Cr.App., 382 S.W.2d 927.

The petition for writ of habeas corpus is granted; the petitioner is ordered released from the Department of Corrections and delivered to the custody of the sheriff of Limestone County to answer the indictment in Cause No. 4123-A in the district court of that county.