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EX PARTE JAMES HOYT POWELL (10/02/85)

October 2, 1985

EX PARTE JAMES HOYT POWELL


Habeas Corpus Application from Nacogdoches County.

COUNSEL

Attorney Pro Se, for applicant.

Herbert B. Hancock, D.A. & Martha P. Sullivan, Asst. D. A. Nacogdoches, Tx.; Robert Huttash, State's Atty., Austin, Tx., for State.

Campbell, J. Clinton, J.

Author: Campbell

CAMPBELL, Judge

This is an application for a post-conviction writ of habeas corpus. See Art. 11.07, V.A.C.C.P. Applicant pled guilty to four felony offenses (aggravated robbery, attempted capital murder, and two felony theft cases) with the understanding that he could appeal the denial of his pre-trial motion to dismiss the indictments, alleging a violation of the Speedy Trial Act, Art. 32A.02, V.A.C.C.P. His convictions in our Cause Nos. 64,530 through 64,533 were affirmed in an unpublished per curiam opinion delivered July 25, 1980. The panel opinion held that applicant's guilty pleas waived his right to appeal his speedy trial claim.

This Court has recently held in Martin v. State, 652 S.W.2d 777 (Tex.Cr.App. 1983) that rights claimed under the Speedy Trial Act are not lost nor waived by a subsequent guilty plea, overruling Ramirez v. State, 590 S.W.2d 509 (Tex. Cr. App. 1979); Luna v. State, 602 S.W.2d 267 (Tex.Cr.App. 1980); and Flores v. State, 606 S.W.2d 859 (Tex. Cr.App. 1980). Accordingly, we deny applicant's request for relief in the form of a plea withdrawal, but we grant his underlying request for plenary appellate review of his speedy trial contention. See Ex parte Hilliard, 687 S.W.2d 316 (Tex.Cr.App. 1985). We will treat the merits of his speedy trial claim on the basis of the record in his original appeal, Cause Numbers 64, 530 through 64,533.

Applicant was indicated on October 19, 1978. On November 28, 1978, applicant was arrested by the FBI on numerous outstanding federal warrants including two bank robberies. At the time of applicant's arrest applicant was sought by federal authorities in Arkansas, Georgia, and Missouri. Nacogdoches County authorities were advised that applicant would be unavailable until the disposition of federal charges. Nacogdoches County authorities placed a detainer on the applicant in November and continued to attempt to gain custody through numerous telephone calls to assorted federal officials. The unrebutted evidence at the hearing on applicant's motion to dismiss indicated that the last federal trial was completed on March 5, 1979. On February 2, 1979, Nacogdoches County placed a detainer pursuant to the Interstate Agreement on Detainers Act. See Art. 51.14, V.A.C.C.P. Nacogdoches County ...


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