387 F2d 366 Finch v. State of Texas

387 F.2d 366

Jimmy Delano FINCH, Appellant,
STATE OF TEXAS and Sheriff of Harris County, Appellees.

No. 24420.

United States Court of Appeals Fifth Circuit.

December 21, 1967.

Jimmy Delano Finch, pro se.

Lonny F. Zwiener, Asst. Atty. Gen., Austin, Tex., Crawford C. Martin, Atty. Gen. of Texas, George M. Cowden, First Asst. Atty. Gen., A. J. Carubbi, Jr., Staff Legal Asst. Atty. Gen., R. L. Lattimore, Howard M. Fender, Robert E. Owen, Asst. Attys. Gen., Austin, Tex., for appellees.

Before MARIS,* THORNBERRY and AINSWORTH, Circuit Judges.


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Appellant, Jimmy Delano Finch, was convicted by a jury of burglary on May 13, 1965. Though he had previously advised his retained counsel that he would plead guilty, he elected just before trial to plead not guilty and to discharge counsel. The trial judge promptly appointed the same attorney. In this habeas corpus proceeding, appellant attacks his conviction on the ground that he had ineffective assistance of counsel.


Appellant admitted during the hearing in the district court that he conferred with counsel four or five times prior to trial but did not express a desire to discharge him until the day of trial, shortly before its commencement. He contended that counsel failed to call several witnesses after he had requested that they be called. Counsel testified that the witnesses could not have helped appellant. As to the adequacy of his representation, he testified that he conferred with appellant several times and obtained three continuances prior to trial. The district court correctly found that appellant's attempt to discharge counsel at trial was simply another dilatory tactic employed after he was unable to obtain a fourth continuance and that there was no merit to his allegation that counsel had rendered ineffective assistance. The district court's judgment denying the petition for writ of habeas corpus is hereby





Of the Third Circuit, sitting by designation