Houston v. State, 45579
Citation | 490 S.W.2d 851 |
Decision Date | 24 January 1973 |
Docket Number | No. 45579,45579 |
Parties | Preamous HOUSTON, Appellant, v. The STATE of Texas, Appellee. |
Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
James P. Finstrom, Dallas (by Court appointment), for appellant.
Henry Wade, Dist. Atty., Harry J. Schulz, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
DAVIS, Commissioner.
This is an appeal from a conviction for burglary. After the jury returned a verdict of guilty, punishment was assessed by the court at eight years.
Appellant urges that the court erred when if failed to accord court-appointed counsel ten days to prepare for trial.
The record reflects that counsel was appointed on October 21, 1971, and that the case was tried on October 26, 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 to prepare for trial. There was no motion for continuance and no objection was voiced at the time of trial nor was such contention raised on motion for new trial. This contention was urged for the first time on appeal. Nonetheless, in Steward v. State, Tex.Cr.App., 422 S.W.2d 733, 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.' See Crothers v. State, Tex.Cr.App., 480 S.W.2d 642; Farmer v. State, Tex.Cr.App., 419 S.W.2d 382; Bennett v. State, Tex.Cr.App., 382 S.W.2d 930. Cf. Ex parte Meadows, Tex.Cr.App., 418 S.W.2d 666 ( ) and Hill v. State, Tex.Cr.App., 480 S.W.2d 200 ( ).
Unlike Meeks v. State, Tex.Cr.App., 456 S.W.2d 938; Gray v. State, Tex.Cr.App., 475 S.W.2d 246 and Lee v. State, Tex.Cr.App., 478 S.W.2d 469, the record in this case does not affirmatively show that court-appointed counsel had sufficient time to prepare for trial and the appointment was made merely to allow payment for services.
The judgment is reversed and the cause remanded.
Opinion approved by the Court.
To continue reading
Request your trial-
Moreno v. State
...is ordinarily called for without any question of harm or prejudice. Griffin v. State, 489 S.W.2d 290 (Tex.Cr.App.1973); Houston v. State, 490 S.W.2d 851 (Tex.Cr.App.1973). In absence of a showing, however, that an accused was indigent, the court is under no duty to appoint counsel for him. ......
-
Marin v. State
...attorney's request for ten days preparation for trial when he was appointed seven days before trial. And, in Houston v. State, 490 S.W.2d 851, 852 (Tex.Cr.App.1973), we held it was error to force the defendant to trial five days after the appointment of counsel because Tex.Code Crim.Proc.An......
-
Marin v. State
...statute could be raised for the first time on direct appeal. Henson v. State, 530 S.W.2d 584, 585 (Tex.Cr.App.1975); Houston v. State, 490 S.W.2d 851, 852 (Tex.Cr.App.1973). similar language. We recognize that former article 26.04(b) was mandatory and that a violation thereof probably would......
-
Henson v. State, 50702
...allegations, or that the second appointment was made only to allow payment 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; Me......