Henry v. State
| Decision Date | 06 November 1968 |
| Docket Number | No. 41574,41574 |
| Parties | Johnny Batmos HENRY, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
William D. Tipton, Bernard L. Chanon, Houston, for appellant.
Carol S. Vance, Dist. Atty., Houston, James C. Brough and Ruben W. Hope, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is robbery by assault; the punishment, 7 years confinement in the Texas Department of Corrections.
In his first four grounds of error appellant challenges the sufficiency of the evidence to sustain the conviction.
Lynn Chester Franklin, a bus driver, testified he was robbed of $99.50 and a money changer on the afternoon of February 2, 1967, by the appellant who had entered his bus at the end of the line, 5400 Chew Street, Harris County, Texas; that he did not consent to the taking of the money and that at the time he was in fear of his life that at the time the appellant left the bus he saw the muzzle of a pistol in appellant's possession and that the appellant threatened to kill him if he stopped his bus at a nearby service station; that he recognized appellant as a former school mate and picked him out of a lineup some three weeks after the alleged offense.
Testifying in his own behalf, appellant denied knowing the complaining witness, denied the robbery and related that he was home alone at the time of such offense.
Evidence was introduced as to the appellant's weight, height, length of hair, etc., at the time of arrest and trial to demonstrate that it varied in some respects from the physical description first given to the police by the complaining witness. Much was made of the fact that Franklin first told the investigating officers he had attended Kashmere Gardens School with appellant and that subsequently he determined that it was the E. O. Smith School both had attended.
We have examined the entire record and find the evidence sufficient to support the jury's verdict. The testimony of the injured party was sufficient to conclude that appellant was the guilty party. Ramirez v. State, 169 Tex.Cr.R. 494, 335 S.W.2d 228; Gibson v. State, Tex.Cr.App., 411 S.W.2d 735; Murry v. State, Tex.Cr.App., 413 S.W.2d 117.
Appellant's first four grounds of error are overruled.
In his fifth ground of error appellant contends that the trial court erred in proceeding to trial in absence of a written waiver of the ten day preparation period required by the mandatory provisions of Article 26.04(b), Vernon's Ann.C.C.P., when the trial is had within ten days of counsel's appointment.
It appears that on April 26, 1967, the trial judge appointed Bernard Chanon, Esq. and Joe R. Ayres, Esq., as well as Jack Bodiford, Esq., a staff attorney of the Houston Legal Foundation, to represent this indigent appellant. Sometime thereafter George M. Bishop, Esq. was appointed by the court to replace Mr. Ayres. On the first trial of this cause, commencing on September 6, 1967, the jury was unable to reach a verdict and a mistrial was declared.
On November 14, 1967, Mr. Bishop was called to active military duty and William D. Tipton, Esq. was appointed by the trial judge on November 27, 1967, to assist Mr. Chanon in appellant's defense. The second trial resulting in the conviction now on appeal commenced on November 29, 1967, two days after Tipton's appointment. It is acknowledged that both sides announced ready for trial, that no motion for continuance was made and that the matter was not then called to the trial court's attention.
The State is in error in contending that a written waiver of the ten days to prepare for trial signed by the appellant and his court appointed counsel is not necessary unless harm is shown. That rule prevails in a collateral attack on an otherwise valid conviction. Ex parte Meadows, Tex.Cr.App., 418 S.W.2d 666; Steward v. State, Tex.Cr.App., 422 S.W.2d 733. Where the error is assigned on direct appeal and there is a showing that there has been a failure to comply with the mandatory provisions of Article 26.04, supra, reversal is ordinarily called for without any question of harm or prejudice. Steward v. State, supra; 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.
We decline, however, to reverse on this ground. It is clear that if counsel's appointment has been more than ten days...
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