Crothers v. State, 44979
| Citation | 480 S.W.2d 642 |
| Decision Date | 31 May 1972 |
| Docket Number | No. 44979,44979 |
| Parties | Lepoleum CROTHERS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
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.
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.
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.
A portion of the rather lengthy record is concerned with the appellant's being represented by attorney Ray Gene Smith, who the appellant contends was counsel of his choice. Attorney Smith was not permitted to defend nor to assist court-appointed counsel in the defense of the appellant. The refusal to permit attorney Smith to participate presents a serious question.
The State contends that it was not error to refuse to permit attorney Smith...
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