Steven Jerald McCain v. The State of Texas--Appeal from 66th District Court of Hill County

IN THE

TENTH COURT OF APPEALS

No. 10-99-348-CR

STEVEN JERALD McCAIN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 66th District Court

Hill County, Texas

Trial Court # 31,436

DISSENTING OPINION

The availability of the writ of habeas corpus has traditionally been restricted to instances where the trial court s judgment is void, and cannot be invoked for mere irregularities in the proceedings. Ex parte Sadberry, 864 S.W.2d 541, 542 (Tex. Crim. App. 1993); see, e.g., Ex parte Banks, 769 S.W.2d 539, 540 (Tex. Crim. App. 1989) (habeas corpus available only to review jurisdictional defects or denials of fundamental or constitutional rights). Generally, claims that are based merely on a state statute will not be considered, and a Texas constitutional claim may be considered only if the claim is not susceptible to a harmless error analysis. Ex parte Dutchover, 779 S.W.2d 76, 77-78 (Tex. Crim. App. 1989). Finally, the writ should not be used to litigate matters which should have been raised on appeal. Ex parte Sanchez, 918 S.W.2d 526, 527 (Tex. Crim. App. 1996).

As mentioned above, the fact that a conviction is void may be raised in a habeas corpus proceeding. Heath v. State, 817 S.W.2d 335, 336 (Tex. Crim. App. 1991). The Court of Criminal Appeals has stated, [T]he provisions of Article 1.13, and its predecessor Article 10a, are mandatory; before a defendant who has no attorney can agree to waive a jury trial in a non-capital felony, the court must appoint an attorney to represent him or the resulting conviction will be void. Ex parte Ross, 522 S.W.2d 214, 223 (Tex. Crim. App. 1975) (emphasis added). Article 1.13(c) has not changed, and Ex parte Ross has not been overruled. Tex. Code Crim. Proc. Ann. art. 1.13(c) (Vernon Supp. 2000); Ex parte Ross, 522 S.W.2d at 223.

Consequently, I would hold that McCain s attack on his conviction is cognizable in habeas corpus because it is void. As a result, I would grant McCain s requested relief. Because the majority does not, I dissent.

BILL VANCE

Justice

Dissenting opinion delivered and filed July 12, 2000

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