Burgett v. Texas


DECIDED BY: Warren Court (1967-1969)
LOWER COURT: Texas Court of Criminal Appeals

CITATION: 389 US 109 (1967)
ARGUED: Oct 18, 1967
DECIDED: Nov 13, 1967

Facts of the case


Media for Burgett v. Texas

Audio Transcription for Oral Argument - October 18, 1967 in Burgett v. Texas

Earl Warren:

Number 53, James Cleveland Burgett versus Texas.

Mr. Gooch.

Gordon Gooch:

Mr. Chief Justice, may it please the Court.

Petitioner, James Burgett seeks the indication of his right to counsel.

He was convicted in a Texas State Court on a jury verdict of ten years.

He was -- had his conviction affirmed on appeal to the Court of Criminal Appeals of Texas and on his own motion obtained a writ of certiorari in your court.

He was indicted for assault with intent to murder.

The charges against him were brought by a jailer in the town of Greenville, Texas where he was being held for a trial.

At the time of his trial as his trial proceeded, his court appointed counsel in Greenville filed a motion to quash the indictment which alleged four prior convictions which the state used to invoke one of the habitual criminal statutes, the result of which would be life imprisonment.

There was no state procedure available before trial to attack the prior convictions.

The motion to quash as set out in the statutes applied only to technical features of the indictment such as an illegally constituted grand jury.

Nevertheless, the court appointed lawyer moved to quash, stating that he didn't have enough information to make any further attack.

There was no action taken insofar as the record is concerned on his motion to quash but the counsel really couldn't expect the Court to take any motion since the Texas law was clear that the defendant was not entitled to have copies of the prior convictions that were going to be used against him and that the defendant was not entitled to object prior to trial to the use of any prior conviction, instead he had to make his objection in front of the jury.

As the trial began, the state read the indictment and the jury was told that petitioner was duly and legally convicted on four prior occasions.

As the evidence came in, the state introduced into evidence one version, first of one of the Tennessee convictions alleged.

That conviction stated on its face that petitioner did not have counsel.

There was a --

Potter Stewart:

That was a conviction for what?

Gordon Gooch:

Forgery Your Honor.

Potter Stewart:

A felony in Tennessee or?

Gordon Gooch:

Yes, Your Honor.

The conviction recited on his face that he had appeared in court without counsel and there was absolutely nothing in the record to indicate that counsel had been tendered to him or that he had waived counsel.

His court appointed lawyer objected on the ground that the conviction showed on its face that petitioner did not have counsel and that there was no indication of waiver which brought him squarely within Carnley against Cochran.

Secondly, he raised the issue of course under the Fourteenth Amendment.

The judge reserved ruling and the state offered the same conviction and evidence, this time, a different and inconsistent certified copy of the same conviction.

The second version did not have a recitation that counsel was not present.

It was simply silent on whether counsel was present.

Again, there was no language in the second certified copy of the same conviction to indicate that petitioner had been tendered counsel or that he had waived counsel.

The Court then proceeded to receive evidence again without making a ruling and again over counsel's objections, proceeded to hear evidence concerning a Texas conviction for burglary, the preceding in 1964.

The judge after a hearing, partially in camara, ruled out the Texas conviction on the ground that it was void on state law grounds.