Carter v. State, Nos. 45048

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation480 S.W.2d 735
Docket NumberNos. 45048
PartiesAndrew J. CARTER, Appellant, v. The STATE of Texas, Appellee. to 45050.
Decision Date31 May 1972

Page 735

480 S.W.2d 735
Andrew J. CARTER, Appellant,
v.
The STATE of Texas, Appellee.
Nos. 45048 to 45050.
Court of Criminal Appeals of Texas.
May 31, 1972.

James P. Finstrom, Dallas, for appellant.

Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

The conviction in each of the three cases was for the sale of heroin. The cases were tried together before the same jury. The court assessed the punishment in cases No. 45,048 and No. 45,049 at fifty years imprisonment and in case No. 45,050 at life imprisonment.

The evidence shows the sale of heroin to an undercover agent on three separate occasions.

The grounds of error raised in each of the three cases are identical.

The appellant's first ground of error is that 'The record in this cause will not support appellant's conviction because same fails to show when appellant's counsel was appointed and same fails to show that appellant waived his statutory and constitutional right to ten days to prepare for trial.'

The appellant argues in support of this ground of error that 'The record in the cause at bar is silent as to the date counsel

Page 736

was appointed to represent appellant who was indigent at the time of his trial. The record is further silent as to any waiver of appellant's right to have ten days to prepare for trial as guaranteed by Article 26.04, V.A.C.C.P.'

The docket sheet in the instant case reflects the name 'Jas. P. Finstrom' in the space for the attorney representing appellant. Immediately below this is 'Jas. P. Finstrom, appointed on appeal 2--12--71.' The docket sheets and the statement of facts indicate that the trial began on January 20, 1971. An instrument is filed in the record designated 'Affidavit of Defendant' which is an affidavit of indigency of appellant and was purportedly signed on January 20, 1971, but was not filed with the clerk of the court until January 28, 1971. At the bottom of this affidavit of indigency is a certificate of the trial court that attorney Finstrom Had represented and 'actually appeared January 20--21, 1971' and was entitled to a fee for his services. This certificate was purportedly signed by the trial judge on January 21, 1971.

There was no motion for continuance. This ground of error was not raised at the time of trial nor on motion for new trial, but it is urged for the first time on appeal.

A similar contention was made in Steward v. State, 422 S.W.2d 733 (Tex.Cr.App.1968), where it was said:

'There can be no question that a showing on direct appeal of a failure to comply with the mandatory provisions of Article 26.04, supra, would call for reversal. Farmer v. State, Tex.Cr.App., 419 S.W.2d 382; Bennett v. State, Tex.Cr.App., 382 S.W.2d 930; Ex parte Gudel, Tex.Cr.App., 368 S.W.2d 775. Cf. Ex parte Meadows, Tex.Cr.App., 418 S.W.2d 666 (a different rule prevails in a collateral attack on an otherwise valid conviction in the absence of a showing of injury).

'If, on the other hand, counsel's appointment has been more than ten days prior to trial, Article 26.04, supra, has no application. Lamar v. State, Tex.Cr.App., 415 S.W.2d 926.

'In absence of a showing of the date of trial counsel's appointment, we would not be inclined to reverse under the circumstances here presented.' (Emphasis added.)

We would be less inclined to reverse under the circumstances presented in this case than those in Steward v. State, Supra. See also Lee v. State, 478 S.W.2d 469 (Tex.Cr.App.1972) and Schafer v. State, 436 S.W.2d 352 (Tex.Cr.App.1969).

This case is unlike that of Lepoleum Crothers v. State, 480 S.W.2d 642 (Tex.Cr.App. May 31, 1972), in which the record affirmatively showed that the defendant's counsel was appointed on the day the trial commenced.

Like Meeks v. State, 456 S.W.2d 938 (Tex.Cr.App.1970); Gray v. State, 475 S.W.2d 246 (Tex.Cr.App.1971) and Lee v. State, Supra, it appears that counsel had had sufficient time to prepare for trial and the appointment was made merely to allow payment for services. 1

This ground of error is overruled.

The second ground of error is that 'Appellant was improperly convicted on the uncorroborated testimony of an...

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10 practice notes
  • Lejeune v. State, No. 49404
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • July 14, 1976
    ...the former statute that where the Sale of a narcotic drug was involved the quantity of the narcotic sold is irrelevant. Carter v. State, 480 S.W.2d 735 (Tex.Cr.App.1972); Bryant v. State, 492 S.W.2d 947 (Tex.Cr.App.1973). Both the possession and the delivery of marihuana require the element......
  • Carr v. State, No. 46132
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 13, 1973
    ...1971); Alvarez v. State, 478 S.W.2d 450 (Tex.Cr.App. 1972); Easley v. State, 478 S.W.2d 539 (Tex.Cr.App. 1972), and Carter v. State, 480 S.W.2d 735 (Tex.Cr.App. 1972). See also Martinez v. State, 471 S.W.2d 399 (Tex.Cr.App. 1971). Cf. Gomez v. State, 461 S.W.2d 422 (Tex.Cr.App. 1971), and C......
  • Henson v. State, No. 50702
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • December 19, 1975
    ...for services. Prince v. State, 500 S.W.2d 533; Houston v. State, 490 S.W.2d 851; Crothers v. State, 480 S.W.2d 642; cf. Carter v. State, 480 S.W.2d 735; Lee v. State, 478 S.W.2d 469; Gray v. State, 475 S.W.2d 246; Meeks v. State, 456 S.W.2d The record reflects no properly executed waiver of......
  • Guzman v. State, No. 48825
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • April 2, 1975
    ...time to prepare for trial interpreting Art. 26.04(b), V.A.C.C.P. Cobb v. State, 503 S.W.2d 249 (Tex.Cr.App.1974); Carter v. State, 480 S.W.2d 735 (Tex.Cr.App.1972); and Meeks v. State, 456 S.W.2d 938 (Tex.Cr.App.1970). In Meeks v. State, supra, this Court 'The purpose of article 26.04(b), V......
  • Request a trial to view additional results
10 cases
  • Lejeune v. State, No. 49404
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • July 14, 1976
    ...the former statute that where the Sale of a narcotic drug was involved the quantity of the narcotic sold is irrelevant. Carter v. State, 480 S.W.2d 735 (Tex.Cr.App.1972); Bryant v. State, 492 S.W.2d 947 (Tex.Cr.App.1973). Both the possession and the delivery of marihuana require the element......
  • Carr v. State, No. 46132
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 13, 1973
    ...1971); Alvarez v. State, 478 S.W.2d 450 (Tex.Cr.App. 1972); Easley v. State, 478 S.W.2d 539 (Tex.Cr.App. 1972), and Carter v. State, 480 S.W.2d 735 (Tex.Cr.App. 1972). See also Martinez v. State, 471 S.W.2d 399 (Tex.Cr.App. 1971). Cf. Gomez v. State, 461 S.W.2d 422 (Tex.Cr.App. 1971), and C......
  • Henson v. State, No. 50702
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • December 19, 1975
    ...for services. Prince v. State, 500 S.W.2d 533; Houston v. State, 490 S.W.2d 851; Crothers v. State, 480 S.W.2d 642; cf. Carter v. State, 480 S.W.2d 735; Lee v. State, 478 S.W.2d 469; Gray v. State, 475 S.W.2d 246; Meeks v. State, 456 S.W.2d The record reflects no properly executed waiver of......
  • Guzman v. State, No. 48825
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • April 2, 1975
    ...time to prepare for trial interpreting Art. 26.04(b), V.A.C.C.P. Cobb v. State, 503 S.W.2d 249 (Tex.Cr.App.1974); Carter v. State, 480 S.W.2d 735 (Tex.Cr.App.1972); and Meeks v. State, 456 S.W.2d 938 (Tex.Cr.App.1970). In Meeks v. State, supra, this Court 'The purpose of article 26.04(b), V......
  • Request a trial to view additional results

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