Vessels v. State

OPINION ON APPELLANT’S MOTION FOR REHEARING

ONION, Judge.

A further study of the record convinces us that this indigent appellant was denied the effective assistance of counsel to which he was entitled by virtue of the 6th and 14th Amendments to the Federal Constitution. See also Art. I, Sec. 10, Texas Constitution, Vernon’s Ann.St.

Courts are reticent to reverse a case for this reason, and often other counsel are reluctant to raise such grounds, but a reading of this record convinces us that this cup cannot be passed from our lips and requires review sua sponte. Article 40.09, Sec. 13, Vernon’s Ann.C.C.P.

In addition to the lack of diligence relied upon by the majority in disposing of the suppression of evidence question and the argument of appellant’s counsel set out in the opinion of the majority on original submission, there are other factors.

Shortly before trial appellant’s appointed counsel, who had attempted to withdraw, offered a motion for change of venue which was denied for lack of the affidavit of two credible persons, residents of the county of the prosecution as required by Article 31.03, V.A.C.C.P. Appellant’s counsel then offered to obtain such an affidavit and filed the same, but there is no showing that the same was ever re-presented to the court, but alas, no matter, the original motion was defective as it was sworn to by appellant before his own counsel as notary. See Luttrell v. State, 70 Tex.Cr.R. 183 , 157 S. W. 157 ; Clemons v. State, Tex.Cr.App., 398 S.W.2d 563 , Cert. denied, 384 U.S. 1015 , 86 S.Ct. 1974 , 16 L.Ed.2d 1037 , rehearing denied, 385 U.S. 894 , 87 S.Ct. 25 , 17 L.Ed.2d 128 ; 16 Tex.Jur.2d., Crim. Law, Sec. 253, pp. 405-407; Cf. Simonds v. State, 76 Tex.Cr.R. 487 , 175 S.W. 1064 .

At the time of appellant’s trial all capital cases where the State was seeking the death penalty were to be tried at a one stage proceedings, Rojas v. State, Tex.Cr.App., 404 S.W.2d 30 ; Wilhelm v. State, Tex.Cr.App., 426 S.W.2d 850 ; Article 37.07, V.A.C.C.P., in effect at time of appellant’s trial, providing for the introduction of the defendant’s prior criminal record at the penalty stage of a bifurcated *116 trial had no application to capital cases where the death penalty was being sought. 1

When offered the choice of a one stage proceedings or a bifurcated trial, appellant’s counsel permitted him to agree to separate trials. Such agreement permitted the State to offer into evidence 10 prior felony convictions at the hearing on punishment with the appellant offering no evidence. Such prior criminal record was effectively utilized by the District Attorney in his jury argument requesting the imposition of the death penalty.

We observe further that immediately upon receipt of the death verdict, appellant’s counsel requested and was permitted to withdraw from the case. Cf. Ex parte Caldwell, Tex.Cr.App., 383 S.W.2d 590 .

Subsequently, another attorney was appointed to represent the appellant and while he ordered the record he was allowed to withdraw without ever consulting with the appellant for as the trial judge described it “his wife ran him off the case * *

While there is evidence that appellant’s family was making some effort to obtain counsel after this time, appellant filed his own motion for new trial, even though the judge had ordered a copy of the Code of Criminal Procedure, which appellant had obtained with the approval of the sheriff, removed from the jail.

Appellant was without counsel until his present appellate counsel hearing of his plight volunteered to represent the appellant at his own expense, and traveled from Odessa to Pampa to do so. His difficulties in securing a hearing on a motion for new trial are described in some measure in the majority’s original opinion.

In MacKenna v. Ellis, 280 F.2d 592 , the United States Court of Appeals, Fifth Circuit, stated:

“We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonable effective assistance.” See also Fletcher v. State, Tex.Cr.App., 396 S.W. 2d 393 .

While nothing herein should be interpreted as impugning counsel’s honesty and integrity, we cannot conclude in light of the record that the accused has received his constitutional right to effective assistance of counsel which our entire judicial system should always jealously safeguard, even under the test announced in Williams v. Beto, 354 F.2d 698, 704 (5th Cir.).

Still another error appears which requires review under Article 40.09, Sec. 13, supra. At the penalty stage of the proceedings the State offered and had admitted into evidence before the jury certified copies of judgments and sentences from ten prior convictions, 8 from Texas, 1 from New Mexico and 1 from the United States District Court, Western District of Texas. Such offer was made over the timely objection that there was no evidence to show that appellant was one and the same person so previously convicted. While such certified copies of the judgments and sentences were clearly admissible if appellant’s identity had been established, their mere introduction standing alone was not sufficient to identify the appellant as the person so formerly convicted.. In light of the objection, the State’s failure to go *117 further and show by independent testimony that appellant was the identical person convicted under each of the ten judgments and sentences constitutes reversible error.

It is trae that prior to such offer in the absence of the jury the State attempted to make such proof before the court.

The sheriff of Gray County testified he had received appellant’s “prior criminal record” in the mail from the Texas Department of Public Safety coordinated under one number accompanied by a photograph and a set of fingerprints. He was then permitted to state that he had found each of the ten prior convictions included in such record. An examination of such instrument, marked as State’s Exhibit No. 8 for identification, reflects that it was not certified or authenticated in any manner so as to authorize its introduction under the provisions of Article 3731a, Vernon’s Ann. Civ. St. The set of fingerprints do not reflect when or under what circumstances they were taken. 2 State’s Exhibit No. 8 appears to be a “rap sheet” furnished law enforcement officers upon request by the Department of Public Safety. See Article 4413 (14) V.A.C.S.

A fingerprint expert then testified that a set of fingerprints taken from appellant at the Potter County jail matched the fingerprints in State’s Exhibit No. 8.

Such proof was not offered before the jury, but even if it had it would not have been sufficient to have shown appellant was the identical person previously convicted under each judgment and sentence introduced.

We have consistently held that a prior conviction alleged for enhancement may be established by certified copies of the judgment and sentence and records of the Texas Department of Corrections including fingerprints of the defendant, supported by expert testimony identifying them as identical with known prints of the defendant. See 1 Branch’s Anno.P.C., Sec. 699, p. 684.

Such procedure was authorized because it complied with the provisions of Article 3731a, supra. See Spencer v. State, 164 Tex.Cr.R. 464 , 300 S.W.2d 950 .

We know of no reason why the same rule would not apply whether the State was seeking to prove a prior criminal record under the provisions of Article 37.07, V.A. C.C.P., or whether it was attempting to prove a prior conviction alleged for enhancement of punishment or for jurisdictional purposes.

Judge Morrison and this writer remain convinced that reversal is also called for as the result of the suppression of evidence. Further, we do not feel the issue can be disposed of within the framework of conventional “newly discovered evidence” concepts. Hamric v. Bailey, 4th Cir., 386 F.2d 390 ; Cf. Jackson v. Wainwright, 5th Cir., 390 F.2d 288 . The majority, however, has concluded that particular ground does not reflect reversible error.

Appellant’s motion for rehearing is granted, the judgment of affimance is set aside, and the cause reversed and remanded.

. This Court has held though, in such cases, that an accused pleading not guilty is denied no constitutional or statutory right when, without objection, or at his request, separate trials are had before the same jury on the issues of guilt or innocence and the punishment to be assessed. Williams v. State, Tex.Cr. App., 415 S.W.2d 917 ; Jones v. State, Tex.Cr.App., 416 S.W.2d 412 .

. Observe that “fingerprints” are a means of identification, and proof that one has an established fingerprint record is not proof that he is a criminal or that he has previously been convicted of crime. Bundren v. State, 152 Tex.Cr.R. 45 , 211 S.W. 2d 197 .