Crothers v. State, No. 44979

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation480 S.W.2d 642
Decision Date31 May 1972
PartiesLepoleum CROTHERS, Appellant, v. The STATE of Texas, Appellee.
Docket NumberNo. 44979

Page 642

480 S.W.2d 642
Lepoleum CROTHERS, Appellant,
v.
The STATE of Texas, Appellee.
No. 44979.
Court of Criminal Appeals of Texas.
May 31, 1972.

Guy H. McNeely, Wichita Falls (By Court Appointment), R. M. Helton, Wichita Falls (of Council on Appeal), for appellant.

Jim Phagan, Dist. Atty., Wichita Falls, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

The conviction was for the sale of heroin; the punishment, three hundred years imprisonment.

In view of our disposition of this case it is only necessary to note that the evidence shows the sale of heroin by the appellant to an undercover agent.

Page 643

A reversal of the judgment in this case is required because the record shows that his court-appointed counsel was appointed on the day the trial commenced and the record fails to show that the appellant and his court-appointed counsel waived the time provided by law to prepare for trial.

The record reflects the indictment was filed on March 10, 1971. On March 22, 1971, the appellant was arraigned, entered a plea of not guilty and because he was too poor to employ an attorney, requested the appointment of counsel. Attorney Guy McNeely was appointed on March 22, 1971, to represent appellant and the trial commenced on that day. 1 A jury verdict of guilty was returned on March 25, 1971.

Article 26.04(b), Vernon's Ann.C.C.P., provides:

'The appointed counsel is entitled to ten days to prepare for trial, but may waive the time by written notice, signed by the counsel and the accused.'

The record does not contain a written waiver signed by appointed counsel and the accused waiving the ten days time provided to prepare for trial. The requirement of Article 26.04(b), V.A.C.C.P. is mandatory. See Farmer v. State, 419 S.W.2d 382 (Tex.Crim.App.1967); Henry v. State, 433 S.W.2d 430 (Tex.Crim.App.1968); King v. State, 466 S.W.2d 322 (Tex.Crim.App. 1971).

Unlike Meeks v. State, 456 S.W.2d 938 (Tex.Crim.App.1970); Gray v. State, 475 S.W.2d 246 (Tex.Crim.App.1971) and Lee v. State, 478 S.W.2d 469 (Tex.Cr.App.1972), the record in this case does not affirmatively show that court-appointed counsel had had sufficient time to prepare for trial and the appointment was made merely to allow payment for services.

The reversible error already discussed is compounded by circumstances giving rise to appellant's contention that he was denied the constitutional right to assistance of counsel of his choice.

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17 practice notes
  • McClure v. State, No. 62125
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • July 14, 1982
    ...noted by it or an improperly presented contention may yet be considered though not of constitutional dimension. See Crothers v. State, 480 S.W.2d 642 (Tex.Cr.App.1972): reversal "required" "because the record shows that his court-appointed counsel was appointed on the day the trial commence......
  • Ex parte Shields, No. 53479
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • December 22, 1976
    ...before an appeal can be taken. Yordy v. State, supra, dealt with a situation where no sentence at all was imposed. 3 Crothers v. State, 480 S.W.2d 642 (Tex.Cr.App.1972), and Hayles v. State, 507 S.W.2d 213 (Tex.Cr.App.1974), hold that the provisions of the statute are 4 While an out-of-time......
  • Moreno v. State, No. 626-82
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 1, 1983
    ...have been held mandatory in absence of the required waiver. Bennett v. State, 382 S.W.2d 930 (Tex.Cr.App.1964); Crothers v. State, 480 S.W.2d 642 (Tex.Cr.App.1972), and cases there cited; Hayles v. State, 507 S.W.2d 213 (Tex.Cr.App.1974); Pollinzi v. State, 541 S.W.2d 445 (Tex.Cr.App.1976);......
  • Marin v. State, No. 1265-93
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • December 14, 1994
    ...S.W.2d 928, 930 (Tex.Cr.App.1974); and, Moore, supra.). 3 In Ex parte Dowden, 408 S.W.2d 512 (Tex.Cr.App.1966), and in Crothers v. State, 480 S.W.2d 642, 643 (Tex.Cr.App.1972), we held the appointment of an attorney to an indigent accused on the day of trial violated Tex.Code Crim.Proc.Ann.......
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17 cases
  • McClure v. State, No. 62125
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • July 14, 1982
    ...noted by it or an improperly presented contention may yet be considered though not of constitutional dimension. See Crothers v. State, 480 S.W.2d 642 (Tex.Cr.App.1972): reversal "required" "because the record shows that his court-appointed counsel was appointed on the day the trial commence......
  • Ex parte Shields, No. 53479
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • December 22, 1976
    ...before an appeal can be taken. Yordy v. State, supra, dealt with a situation where no sentence at all was imposed. 3 Crothers v. State, 480 S.W.2d 642 (Tex.Cr.App.1972), and Hayles v. State, 507 S.W.2d 213 (Tex.Cr.App.1974), hold that the provisions of the statute are 4 While an out-of-time......
  • Moreno v. State, No. 626-82
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 1, 1983
    ...have been held mandatory in absence of the required waiver. Bennett v. State, 382 S.W.2d 930 (Tex.Cr.App.1964); Crothers v. State, 480 S.W.2d 642 (Tex.Cr.App.1972), and cases there cited; Hayles v. State, 507 S.W.2d 213 (Tex.Cr.App.1974); Pollinzi v. State, 541 S.W.2d 445 (Tex.Cr.App.1976);......
  • Marin v. State, No. 1265-93
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • December 14, 1994
    ...S.W.2d 928, 930 (Tex.Cr.App.1974); and, Moore, supra.). 3 In Ex parte Dowden, 408 S.W.2d 512 (Tex.Cr.App.1966), and in Crothers v. State, 480 S.W.2d 642, 643 (Tex.Cr.App.1972), we held the appointment of an attorney to an indigent accused on the day of trial violated Tex.Code Crim.Proc.Ann.......
  • Request a trial to view additional results

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