stating that the trial court may not grant new trial sua sponte in the absence of timely motion for new trial
How later courts described this case
- stating that the trial court may not grant new trial sua sponte in the absence of timely motion for new trial
- Under Article 11.07 “[o]nly the Court of Criminal Appeals has the authority to grant relief as a result of post conviction writ of habeas corpus”
- effective assistance reqlires firm command of facts ard law, thcxolgh investigation is fcundaticn of effective assistance
- trial counsel, new associate with no previous trial experience, was assigned murder case by superior night before trial and spent twelve hours of preparation time exclusively studying Code of Criminal Procedure
Written by the judges who cited it.
The opinion
W. C. DAVIS, Judge,
concurring.
I concur in the result reached by the majority that the petitioner was denied the effective assistance of counsel. Yet, the result reached in this case is in direct conflict and cannot be reconciled with the en banc decision in Ex Parte Diaz, 610 S.W.2d 765 (Tex.Cr.App.1981).
In Diaz, supra, defense counsel was appointed thirty minutes prior to the conclusion of the proceedings. The attorney conducted no investigation concerning the facts of the case; the attorney did not advise Diaz regarding the consequences of his pleas of guilty; the attorney offered no advice to Diaz whatsoever and was as Judge Teague described simply a “warm body.” In Diaz, petitioner’s contention that he was denied the effective assistance of counsel was found to be “without merit.”
The decision in the case at bar and the decision in Diaz are irreconcilable. I believe Diaz should be overruled.
I concur in the result reached by today’s majority.