Opinion
No. 43237.
July 8, 1970.
Appeal from the Jerome Chamberlain, J., Criminal District Court of Dallas County.
Edward S. Koppman, Dallas, for appellant.
Henry Wade, Dist. Atty., and Camille Elliott, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
This is an application for writ of habeas corpus wherein petitioner is seeking relief from a conviction of murder with malice for which he is serving a sentence of 33 years. His conviction in Cause No. E — 1436 IH, Dallas County, Texas, was affirmed in an opinion by the Court on May 20, 1964 (No. 36,993). No statement of facts accompanied this record.
In his application, petitioner alleges that he was denied the effective assistance of counsel on appeal of his conviction. On May 14, 1969, petitioner filed his application in the Criminal District Court of Dallas County. A hearing was held on January 3, 1970. Judge Chamberlain found that petitioner made known to the court at the time of his conviction that he wanted to appeal his conviction, he was indigent, he had no attorney on appeal, no attorney on appeal was provided nor appeared of record, and that it is now impossible to produce a statement of facts to provide an out of time appeal. Thus, he found that petitioner should be afforded a new trial. After careful consideration of the record and the transcript of the hearing on petitioner's writ of habeas corpus, we agree.
The relief prayed for is granted. Petitioner is ordered released from the Department of Corrections and delivered to the Sheriff of Dallas County, there to stand trial on the indictment pending against him in said court.
It is so ordered.