Ex Parte Geter

MORRISON, Judge. Petitioner filed his application for writ of habeas corpus before the Honorable Max M. Rogers, Judge of the 12th Judicial District, who did not grant the writ but developed the facts and certified the same to this Court. We consider the application as though originally presented to this Court under Article 119, Vernon’s Ann. C.C.P. From the record and from a brief submitted by the office of the District Attorney of Harris County, we determine that relator was convicted in Cause # 66774 in the Criminal District Court of Harris County on September 23, 1952, for the offense of possession of marihuana with two prior felony convictions alleged for enhancement and his punishment was assessed at life imprisonment. At the hearing petitioner testified that he was not represented by counsel, that he was indigent and that the court did not appoint counsel to represent him, offer him the services of an attorney or ask him if he had an attorney. The State was unable to refute the truthfulness of his testimony. Under the holdings of the Supreme Court of the United States in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L. Ed. 2d 799; and Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70, silence alone will not constitute a competent and intelligent waiver of his constitutional right to be represented by counsel. See also Ex Parte Hamilton, Tex.Cr.App., 376 S.W.2d 575, and Ex Parte Davis, Tex.Cr.App., 379 S.W.2d 922. Accordingly, it is ordered that relator be released from his present custody and that he be delivered to the custody of the Sheriff of Harris County to stand trial on the original indictment in said Cause # 66774.