Bushnell v. Ellis

LOCATION: John H. Kerr Dam and Reservoir

DECIDED BY: Warren Court (1958-1962)
LOWER COURT: Texas Court of Criminal Appeals

CITATION: 366 US 418 (1961)
ARGUED: May 02, 1961
DECIDED: May 22, 1961

Facts of the case


Media for Bushnell v. Ellis

Audio Transcription for Oral Argument - May 02, 1961 in Bushnell v. Ellis

Earl Warren:

Number 561, James M. Bushnell, Petitioner, versus O. B. Ellis, Director, Texas Department of Corrections.

Mr. Williams, you may proceed.

Percy D. Williams:

Thank you very much, Your Honor.

May it please the Court.

I want to talk to the Court about a prisoner of the State of Texas, the petitioner in this case who is serving a term of 5 to 35 years on a robbery conviction.

His claim is that he was denied due process when he was tried and convicted without assistance of counsel.

His application for writ of habeas corpus was originally filed with the Court of Criminal Appeals of Texas.

That Court denied his application without ordering the State to answer and without ordering any development of the record of the facts.

I don't know why the Court of Criminal Appeals proceed to handle it in that way because in other cases of this type in recent years that Court has proceeded to order the trial court to develop the facts as a basis for consideration of such an application.

I think that if the Court of Criminal Appeals had had before it the record, which is now before this Court, it would have granted the writ.

After this case was docketed in -- in this Court, the notes of testimony which were taken at the trial in 1944 by the reporter, who since was deceased, were transcribed by another reporter and put into this record.

And the charge to the jury at the petitioner's trial in 1944 was also located and is now included in this record.

This record reflects that when he was tried on this robbery charge, the petitioner had no attorney.

Charles E. Whittaker:

May I ask you in that connection please, Mr. Williams, under your law, was that testimony, and in the event of a new trial, re-admissible against him?

Percy D. Williams:

It is my understanding, Your Honor, that it is.

The record reflects that at his trial, the petitioner pleaded not guilty.

He testified to his own innocence.

And he attempted in a brief and in article way to examine several cross-examines, several of the State's witnesses, but that was as much as he was able to do in his own defense.

Under the Texas statute, Code of Criminal Procedure, which was in effect in 1944 when this case was tried, there was no duty under Texas law on the Court to appoint counsel for an indigent defendant in a non-capital case.

William O. Douglas:

Has that been changed since --

Percy D. Williams:

Yes, Your Honor, a couple of years ago.

The statute now provides that, as I read it, although it has not been construed judicially, that in all cases, all felony cases, the Court is under a duty to appoint counsel for an indigent accused.

William O. Douglas:

What is the felony under Texas law, is that --

Percy D. Williams:

Penitentiary offense, Your Honor.

William O. Douglas:


It doesn't matter if the length of this --

Percy D. Williams:

I believe --

William O. Douglas:

-- the date --

Percy D. Williams:

-- I believe that's correct.

William O. Douglas:

-- the date of entry of the felony?