Bennett v. State, No. 37110

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation382 S.W.2d 930
Decision Date14 October 1964
PartiesCharles Edwin BENNETT, Appellant, v. The STATE of Texas, Appellee.
Docket NumberNo. 37110

Page 930

382 S.W.2d 930
Charles Edwin BENNETT, Appellant,
v.
The STATE of Texas, Appellee.
No. 37110.
Court of Criminal Appeals of Texas.
Oct. 14, 1964.

John M. Anderson, Fort Worth, for appellant.

Doug Crouch, Dist. Atty., Grady Hight, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

Appellant was convicted of sodomy and his punishment assessed at fourteen years in the penitentiary.

In view of our disposition of the case, a recitation of the facts is unnecessary.

Trial was on March 11, 1964, upon appellant's plea of not guilty to the indictment. Appellant was represented by the Honorable Tim Curry, an attorney appointed by the court on March 4, 1964, to represent him upon affidavit being made that appellant was unable to employ counsel.

There appears in the record a written waiver, signed by appellant but not by his counsel, of the ten days allowed counsel

Page 931

under Art. 494, Vernon's Ann.C.C.P., to prepare for trial.

Art. 494, supra, which provides for the appointment of counsel, reads in part as follows:

'The counsel so appointed shall have ten (10) days to prepare for trial, unless such time be waived in writing by said attorneys and the accused.'

It is apparent that appellant's waiver in writing, alone, without the joinder of his counsel, did not comply with the statute and was insufficient to waive the ten days' time allowed counsel to prepare for trial. Such presents reversible error, as the provisions of Art. 494, supra, are mandatory. Ex parte Gudel, Tex.Cr.App., 368 S.W.2d 775.

There further appears in the record an affidavit filed by appellant's attorney, praying for a hearing on the question of appellant's sanity. Such request for preliminary hearing was by the court denied.

While the court's action is not before us by a proper bill of exception and the affidavit is insufficient, we observe that under the provisions of Art. 34, Vernon's Ann.P.C., appellant would be entitled to a preliminary trial on the issue of insanity upon the filing of a proper affidavit, and upon another trial he should be granted such a hearing. Pickett v. State, 113 Tex.Cr.R. 395, 22 S.W.2d 136; Norford v. State, 116 Tex.Cr.R. 533, 34 S.W.2d 290; Rice v. State, 135 Tex.Cr.R. 390, 120 S.W.2d 588.

The record reflects that over appellant's timely objection that the same was hearsay, the court permitted the state's witness Bobby R. Scott to testify and relate what the prosecuting...

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20 practice notes
  • Ex parte Taylor, No. 49443
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 5, 1975
    ...by the attorneys, and the later amendment required the joinder of the accused. The provisions were held mandatory. Bennett v. State, 382 S.W.2d 930 (Tex.Cr.App.1964). For some time this court held that failure to comply with such mandatory statute could be the ground for collateral attack u......
  • Hill v. State, No. 44340
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • December 21, 1971
    ...Steward v. State, 422 S.W.2d 733 (Tex.Cr.App.1968); Farmer v. State, 419 S.W.2d 382 (Tex.Cr.App.1967); Bennett v. State, 382 S.W.2d 930 (Tex.Cr.App.1964); Ex parte Gudel, 368 S.W.2d 775 (Tex.Cr.App.1963). It has also been held that where no request for additional time is made and no injury ......
  • Moreno v. State, No. 626-82
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 1, 1983
    ...The State, through its district attorney, would have us reexamine and overrule a generation of cases since Bennett v. State, 382 S.W.2d 930 (Tex.Cr.App.1964) or, failing that, to find the ten days time for preparation begins with "date of indictment" rather than, as the court below held, wi......
  • Graham v. State, No. 44680
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 25, 1972
    ...751; Holman v. State, 92 Tex.Cr.R. 364, 243 S.W. 1093; Patterson v. State Tex.Cr.App., 458 S.W.2d 658; Bennett v. State, Tex.Cr.App., 382 S.W.2d 930; Oldham v. State, 167 Tex.Cr.R. 644, 322 S.W.2d 3 In Miranda, the Court said that its decision was 'not intended to hamper the traditional fun......
  • Request a trial to view additional results
20 cases
  • Ex parte Taylor, No. 49443
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 5, 1975
    ...by the attorneys, and the later amendment required the joinder of the accused. The provisions were held mandatory. Bennett v. State, 382 S.W.2d 930 (Tex.Cr.App.1964). For some time this court held that failure to comply with such mandatory statute could be the ground for collateral attack u......
  • Hill v. State, No. 44340
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • December 21, 1971
    ...Steward v. State, 422 S.W.2d 733 (Tex.Cr.App.1968); Farmer v. State, 419 S.W.2d 382 (Tex.Cr.App.1967); Bennett v. State, 382 S.W.2d 930 (Tex.Cr.App.1964); Ex parte Gudel, 368 S.W.2d 775 (Tex.Cr.App.1963). It has also been held that where no request for additional time is made and no injury ......
  • Moreno v. State, No. 626-82
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 1, 1983
    ...The State, through its district attorney, would have us reexamine and overrule a generation of cases since Bennett v. State, 382 S.W.2d 930 (Tex.Cr.App.1964) or, failing that, to find the ten days time for preparation begins with "date of indictment" rather than, as the court below held, wi......
  • Graham v. State, No. 44680
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 25, 1972
    ...751; Holman v. State, 92 Tex.Cr.R. 364, 243 S.W. 1093; Patterson v. State Tex.Cr.App., 458 S.W.2d 658; Bennett v. State, Tex.Cr.App., 382 S.W.2d 930; Oldham v. State, 167 Tex.Cr.R. 644, 322 S.W.2d 3 In Miranda, the Court said that its decision was 'not intended to hamper the traditional fun......
  • Request a trial to view additional results

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