Lamar v. State, No. 40353

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtMORRISON
Citation415 S.W.2d 926
PartiesAllen LAMAR, Appellant, v. The STATE of Texas, Appellee.
Decision Date17 May 1967
Docket NumberNo. 40353

Page 926

415 S.W.2d 926
Allen LAMAR, Appellant,
v.
The STATE of Texas, Appellee.
No. 40353.
Court of Criminal Appeals of Texas.
May 17, 1967.
Rehearing Denied June 28, 1967.

Harvey C. Hooser, Jr., Big Spring, for appellant.

Wayne Burns, Dist. Atty., Big Spring, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is robbery by assault; the punishment, 25 years.

Appellant's first ground of error raised by brief filed in the trial court is his allegation that the trial court erred in failing to grant his motion for new trial on the ground that ten days did not expire from the date of arraignment to the date of trial, and that such time was not waived. He relies on Art. 26.04, Vernon's Ann.C.C.P., in

Page 927

support of his contention. Art. 26.04 provides for the appointment of counsel for indigents at arraignment or at any time Prior to arraignment and further provides that 'the appointed counsel is entitled to ten days to prepare for trial.' The ten day provision for preparation is from the date of counsel's appointment to the date of trial, not from the date of arraignment. Counsel for appellant was appointed on June 30, 1966, prior to arraignment, and trial began July 13. Clearly more than ten days elapsed between counsel's appointment and the date trial began.

The next ground of error relates to the court's failure to grant a mistrial when Officer Williams referred to appellant's past record. This allusion occurred during cross examination by the court appointed counsel. Williams, one of the arresting officers, had testified that after appellant got out of his automobile he could then see through the open door and observed the butt of a pistol sticking out from under the driver's seat. He was then asked if it was 'against the law for a person to carry a weapon when he is traveling from one part of the state to another part of the state in his vehicle.' The State objected to the officer's being asked to express an opinion as to the law, but such objection was overruled, and the question was again propounded to the witness, and he replied that it was 'against the law for a Felony to carry a gun in his car.' Appellant's counsel continued his interrogation and asked the witness, '* * * Of course, Mr. Williams, are you saying this man (appellant) has committed a felony?' To this the witness replied, 'From his past record.' Since counsel called for the answer which he received, we must conclude...

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8 practice notes
  • Moreno v. State, No. 626-82
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 1, 1983
    ...for preparation of trial should be from the date of counsel's formal appointment by the trial court to the date of trial. Lamar v. State, 415 S.W.2d 926 (Tex.Cr.App.1967). To enact and apply any other rule of law, as the majority does, can and will lead to many questions that will not allow......
  • Carter v. State, Nos. 45048
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • May 31, 1972
    ...counsel's appointment has been more than ten days prior to trial, Article 26.04, supra, has no application. Lamar v. State, Tex.Cr.App., 415 S.W.2d 926. 'In absence of a showing of the date of trial counsel's appointment, we would not be inclined to reverse under the circumstances here pres......
  • Steward v. State, No. 40898
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • January 10, 1968
    ...counsel's appointment has been more than ten days prior to trial, Article 26.04, supra, has no application. Lamar v. State, Tex.Cr.App., 415 S.W.2d 926. In absence of a showing of the date of trial counsel's appointment, we would not be inclined to reverse under the circumstances here While......
  • Smith v. State, No. 43981
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • July 7, 1971
    ...applicable or involved in the question presented. See Steward v. State, Tex.Cr.App., 422 S.W.2d 733, 737; Lamar v. State, Tex.Cr.App., 415 S.W.2d 926. The motion for continuance filed on the day trial commenced was primarily based on the claim of inadequate time to prepare for trial, noting......
  • Request a trial to view additional results
8 cases
  • Moreno v. State, No. 626-82
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 1, 1983
    ...for preparation of trial should be from the date of counsel's formal appointment by the trial court to the date of trial. Lamar v. State, 415 S.W.2d 926 (Tex.Cr.App.1967). To enact and apply any other rule of law, as the majority does, can and will lead to many questions that will not allow......
  • Carter v. State, Nos. 45048
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • May 31, 1972
    ...counsel's appointment has been more than ten days prior to trial, Article 26.04, supra, has no application. Lamar v. State, Tex.Cr.App., 415 S.W.2d 926. 'In absence of a showing of the date of trial counsel's appointment, we would not be inclined to reverse under the circumstances here pres......
  • Steward v. State, No. 40898
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • January 10, 1968
    ...counsel's appointment has been more than ten days prior to trial, Article 26.04, supra, has no application. Lamar v. State, Tex.Cr.App., 415 S.W.2d 926. In absence of a showing of the date of trial counsel's appointment, we would not be inclined to reverse under the circumstances here While......
  • Smith v. State, No. 43981
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • July 7, 1971
    ...applicable or involved in the question presented. See Steward v. State, Tex.Cr.App., 422 S.W.2d 733, 737; Lamar v. State, Tex.Cr.App., 415 S.W.2d 926. The motion for continuance filed on the day trial commenced was primarily based on the claim of inadequate time to prepare for trial, noting......
  • Request a trial to view additional results

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