Opinion
No. 42264.
July 9, 1969.
Appeal from the 23rd Judicial District, T. M. Gupton, J.
Larry Wadler, Wharton, for appellant.
W. Jack Salyer, Dist. Atty., Bay City, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
This is an application for writ of habeas corpus certified to this Court under the provisions of Art. 11.07, Vernon's Ann.C.C.P.
Petitioner, an immate of the Department of Corrections, made application to this Court for a writ of habeas corpus alleging that at his 1931 conviction he gave notice of appeal and was indigent and that he was deprived of the assistance of counsel.
We directed the trial court to hold a hearing to determine the truth as to such allegations.
Such a hearing has been held and the court has certified his findings of fact and conclusions of law. He found that petitioner was indigent, gave notice of appeal and received no assistance of counsel on appeal, as is apparent from our record in Clifton v. State, Tex.Cr.App., 37 S.W.2d 1037, and did not waive the same.
Since the trial judge is now deceased as well as the court reporter and the record of his trial was not preserved an out-of-time appeal is impossible and the State urges that petitioner be granted a new trial.
It is accordingly ordered that petitioner be released from custody and remanded to the Sheriff of Wharton County there to answer the indictment pending against him.
WOODLEY, P.J., not participating.