Ex Parte Huddleston , 149 Tex. Crim. 388 ( 1946 )

In his motion for rehearing, relator presents two propositions not presented originally. He insists that the judgment of conviction is void because (a) it does not affirmatively reflect that he was represented by counsel, either of his own selection or by appointment of the court, when he waived the right of trial by jury, as required by Art. 10a, C. C. P., and (b) it does not affirmatively appear therefrom that counsel was appointed to represent him as to a suspension of sentence, as provided by Art. 776a, C. C. P.

The provision of Art. 10a, C. C. P. referred to reads as follows:

"Provided, that before a defendant who has no Attorney can agree to waive a Jury, the Court must appoint an Attorney to represent him."

This requirement is mandatory. Hernandez v. State,138 Tex. Crim. 4, 133 S.W.2d 584.

The provision of Art. 776a, C. C. P. referred to reads as follows:

"When the defendant has no Counsel, it shall be the duty of the Court of inform him of his right to make such application (for suspended sentence) and shall appoint Counsel to prepare and present the same if requested by the defendant." (Parenthesis supplied.)

This requirement also appears to be mandatory. McMurray v. State, 119 Tex.Crim. R., 45 S.W.2d 217.

It must be remembered that this case is not before us upon appeal for a review of errors alleged to have been committed upon the trial of the case. The sole question before us is whether the judgment of conviction is void and subject to be collaterally attacked, as relator here attempts to do. No facts are before us showing or tending to show that the requirements of the statutes mentioned were not, in fact, complied with.

Relator's contention, then, is to be determined from the face of the judgment.

The judgment or ruling of a trial court is in law presumed to be correct. This presumption attains until and unless the contrary is made to appear. In addition to that presumption here, we find in the judgment this language, viz., "and it appears that all prerequisites required by law for the waiving of this right have been performed." The right there referred to of necessity means the "right of trial by jury."

Such language is sufficient to warrant the conclusion that the provisions of Art. 10a, C. C. P. above referred to, requiring the appointment of an attorney to represent the relator, was, in fact, complied with. Relator being represented by an attorney, as we have concluded from the language of the judgment, no duty rested upon the trial court to appoint additional or other counsel upon the question of suspension of sentence, under the quoted provision of Art. 776a, C. C. P.

From what has been said, it follows that the judgment was sufficient to warrant the conclusion, as against the collateral attack here made thereon, that the provisions of the statutes mentioned were complied with.

By this conclusion, we are not to be understood as holding that the failure of a trial court to follow the mandate of the statutes mentioned would render the judgment of conviction in the instant case void. Such question is not decided, but expressly reserved.

The motion for rehearing is overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.