Henson v. State, No. 50702

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtODOM
Citation530 S.W.2d 584
PartiesTruman Dean HENSON, Appellant, v. The STATE of Texas, Appellee.
Docket NumberNo. 50702
Decision Date19 December 1975

Page 584

530 S.W.2d 584
Truman Dean HENSON, Appellant,
v.
The STATE of Texas, Appellee.
No. 50702.
Court of Criminal Appeals of Texas.
Dec. 19, 1975.

Dade & Young by John E. Rapier, Dallas, for appellant.

Henry Wade, Dist. Atty., Maridell Templeton and John Ovard, Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

The offense was burglary; the punishment, enhanced under Art. 63, V.A.P.C., confinement for life.

The sole ground of error raised by appellant's appointed attorney is without merit. Our reading of the record, however, reveals a violation of the mandatory provisions of Art. 26.04, V.A.C.C.P. In the interest of justice, we will consider such violation as unassigned error, Art. 40.09(13), V.A.C.C.P., as we did in Crothers v. State, 480 S.W.2d 642.

The record reflects that appellant was initially indicted for burglary. Trial counsel was appointed on May 10, 1973. The State later re-indicted appellant upon the same offense as a habitual offender. Such indictment was filed July 16, 1973. Three days later, on July 19, 1973, the same attorney was reappointed to represent appellant on the charges contained in the new indictment. The trial commenced the same day.

Article 26.04, V.A.C.C.P., provides in pertinent part as follows:

'(b) 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 accused.'

It is the actual preparation time, not the time of formal appointment, that determines whether a defendant has been given the mandatory preparation time for trial provided by the statute. McBride v. State, 519 S.W.2d 433; Davis v. State, 513 S.W.2d 928; Moore v. State, 493 S.W.2d 844. In the instant case, appellant had ample time to prepare his defense to the burglary allegations. As stated in an entry on the docket sheet dated July 19, 1973, 'This present cause is a reindictment of that (earlier burglary) case and charge, identical offense.'

He could not have had more than three days, however, to prepare for trial on the enhancement allegations of his second indictment. Such additional allegations were not minor alterations of the pleadings, but constituted new allegations, unrelated to the original offense, that might have substantively affected the accused's preparation for trial and, of course, the range of punishment in the event he was convicted, as actually...

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32 practice notes
  • McClure v. State, No. 62125
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • July 14, 1982
    ...not require review 'in the interest of justice,' " Smith v. State, 478 S.W.2d 947, 948 (Tex.Cr.App.1972). 3 Similarly in Henson v. State, 530 S.W.2d 584 (Tex.Cr.App.1975) Judge Odom wrote for a unanimous "The sole ground of error raised by appellant's appointed attorney is without merit. Ou......
  • State v. Littrice, No. 75514
    • United States
    • Court of Appeals of Kansas
    • May 30, 1997
    ...issue involved both a violation of state and federal constitution[s] and required review in the interest of justice. "In Henson v. State, 530 S.W.2d 584 (Tex.Crim.App.1975), the clear violation of a statute regarding preparation time for counsel could be reviewed even though not raised by t......
  • Lujan v. State, No. 04-81-00063-CR
    • United States
    • Court of Appeals of Texas
    • December 30, 1981
    ...that the ten day preparation period refers to the actual preparation time and not the time of formal appointment. Henson v. State, 530 S.W.2d 584 (Tex.Crim.App.1975). Appellant's third and fourth grounds of error are Appellant next alleges that the trial court committed reversible error in ......
  • Ashcraft v. State, No. 13-94-00022-CR
    • United States
    • Court of Appeals of Texas
    • May 4, 1995
    ...that determines whether a defendant has been given the mandatory preparation time for trial provided by the statute." Henson v. State, 530 S.W.2d 584, 585 (Tex.Crim.App.1975); see also Marin, 891 S.W.2d at 272; Lujan v. State, 626 S.W.2d 854, 863 (Tex.App.--San Antonio 1982, pet. The facts ......
  • Request a trial to view additional results
32 cases
  • McClure v. State, No. 62125
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • July 14, 1982
    ...not require review 'in the interest of justice,' " Smith v. State, 478 S.W.2d 947, 948 (Tex.Cr.App.1972). 3 Similarly in Henson v. State, 530 S.W.2d 584 (Tex.Cr.App.1975) Judge Odom wrote for a unanimous "The sole ground of error raised by appellant's appointed attorney is without merit. Ou......
  • State v. Littrice, No. 75514
    • United States
    • Court of Appeals of Kansas
    • May 30, 1997
    ...issue involved both a violation of state and federal constitution[s] and required review in the interest of justice. "In Henson v. State, 530 S.W.2d 584 (Tex.Crim.App.1975), the clear violation of a statute regarding preparation time for counsel could be reviewed even though not raised by t......
  • Lujan v. State, No. 04-81-00063-CR
    • United States
    • Court of Appeals of Texas
    • December 30, 1981
    ...that the ten day preparation period refers to the actual preparation time and not the time of formal appointment. Henson v. State, 530 S.W.2d 584 (Tex.Crim.App.1975). Appellant's third and fourth grounds of error are Appellant next alleges that the trial court committed reversible error in ......
  • Ashcraft v. State, No. 13-94-00022-CR
    • United States
    • Court of Appeals of Texas
    • May 4, 1995
    ...that determines whether a defendant has been given the mandatory preparation time for trial provided by the statute." Henson v. State, 530 S.W.2d 584, 585 (Tex.Crim.App.1975); see also Marin, 891 S.W.2d at 272; Lujan v. State, 626 S.W.2d 854, 863 (Tex.App.--San Antonio 1982, pet. The facts ......
  • Request a trial to view additional results

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