Ex parte Gorton , 564 S.W.2d 766 ( 1978 )

OPINION

ODOM, Judge.

This is a post-conviction habeas corpus application pursuant to Art. 11.07, V.A.C. C.P.

Petitioner was convicted of burglary in 1954, and punishment, enhanced under Art. 63, V.A.P.C., was fixed at life.

The convicting court held a hearing on petitioner’s application and entered findings of fact and conclusions of law. The record supports the trial court’s finding that petitioner was indigent at his 1954 trial and that he was not represented by counsel at sentencing. Consequently, he was denied appellate review of his conviction. The State stipulated and the trial court found that at this date it would be impossible to provide an adequate record for an out-of-time appeal.

We find the trial court’s recommendation that relief be granted is supported by the prior decision of this Court in Ex parte Rains, 555 S.W.2d 478.

The judgment of conviction and the sentence in Cause No. 19,325 in the Criminal District Court of Jefferson County, styled The State of Texas vs. Edwin H. Gorton, are ordered set aside, and petitioner is ordered remanded to the Sheriff of said county to answer the indictment pending against him in said cause. A copy of this opinion shall be sent to the Texas Department of Corrections.

It is so ordered.