Marin v. State

• Decision Date: 22 September 1993
• Docket Number: No. 3-88-179-CR,3-88-179-CR
• Citation: 862 S.W.2d 183
• Parties: Jose MARIN, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 183

862 S.W.2d 183

Jose MARIN, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 3-88-179-CR.

Court of Appeals of Texas Austin.

Sept. 22, 1993.

Troy C. Hurley, Odom & Hurley, Belton, for appellant.

Arthur C. (Cappy) Eads, Dist. Atty., James T. Russell, Admin. Asst., Belton, for appellee.

Before POWERS, JONES and ONION, JJ. ^*

ON REMAND

POWERS, Justice.

On the jury's verdict, the trial court convicted Jose Marin, Jr. of conspiracy with intent to commit the felony offense of aggravated delivery of more than 400 grams of cocaine and sentenced him to twenty-five years' imprisonment. See Tex.Penal Code Ann. § 15.02 (West 1974); Texas Controlled Substances Act, 68th Leg., R.S., ch. 425, § 6, 1983 Tex.Gen.Laws 2374 (Tex.Rev.Civ.Stat.Ann. art. 4476-15, § 4.03(c) (since repealed and codified at Tex. Health & Safety Code Ann. § 481.112(c) (West Supp.1993)). We will affirm the trial-court judgment.

In his appeal to this Court, Marin brings seven points of error that we have previously overruled in an earlier judgment and opinion. See Marin v. State, 801 S.W.2d 944 (Tex.App.--Austin 1990), vacated, 851 S.W.2d 275 (Tex.Crim.App.1993). The Court of Criminal Appeals vacated our earlier judgment and remanded the appeal to us to consider, as a basis for decision, matters raised in the concurring opinion regarding Marin's first point of error. We will proceed accordingly.

In his first point of error, Marin contends the trial court erred in not allowing his court-appointed attorney ten days to prepare for trial as provided in Tex.Code Crim.Proc.Ann. art. 1.051(e) (West Supp.1993). Article 1.051(e) declares as follows:

(a) A defendant in a criminal matter is entitled to be represented by counsel in an adversarial judicial proceeding. The right to be represented by counsel includes the right to consult in private with counsel sufficiently in advance of a proceeding to allow adequate preparation for the proceeding.

* * * * * *

(c) .... If an indigent defendant is entitled to and requests appointed counsel, the court shall appoint counsel to represent the defendant as soon as possible.

* * * * * * (e) An appointed counsel is entitled to 10 days to prepare for a proceeding but may waive the preparation time with the consent of the defendant in writing or on the record in open court....

The trial court appointed counsel well before trial to represent Marin; there is no dispute that such counsel had more than the requisite ten days in which to prepare for trial. At Marin's request, joined by his appointed counsel, the court named a substitute counsel six days before trial. The substitute counsel announced ready for the trial that resulted in Marin's conviction. Marin's appointed appellate counsel raises on appeal, for the first time, a want of compliance with article 1.051(e). It is undisputed that the record contains no express waiver of the ten-day preparation period; and we will assume, for purposes of discussion only, that the substitute counsel's announcement of "ready" did not amount to an implied waiver of any right conferred upon him by article 1.051(e). We will assume further, for purposes of discussion, that Marin's substitute counsel was appointed by the trial-court on the ground of Marin's indigence.

The purpose of article 1.051(e) is evident from the face of the statute; it is to effectuate an indigent defendant's right to a speedy trial and his right to effective assistance of counsel within a general context where the trial judge ordinarily has the widest discretion and latitude--the scheduling of trials. See Burgess v. State, 816 S.W.2d 424, 428 (Tex.Crim.App.1991) ("A request for a change in counsel cannot be made so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice."); In re House Bill No. 537, 113 Tex. 367, 256 S.W. 573, 574 (1923) (district judges' powers cannot be exercised effectively unless they have discretion in scheduling trials free of interference by legislature).

The effect of article 1.051(e) is to withdraw all discretion from the trial judge to the extent of the ten days specified. Within that period, the ten-day requirement is mandatory unless waived by appointed counsel with the defendant's consent. We must now inquire whether the legislature also intended to deny the trial judge discretion for an additional ten-day period when the defendant requests and the court appoints a substitute counsel. We believe that implication cannot be imputed to the statute.

Article 1.051(e) does not provide expressly for the situation where a trial court appoints substitute counsel to succeed an original appointed counsel who has received the requisite ten days preparation time. Marin's contention that his substitute counsel came within article 1.051(e) is plausible only because the statute declares that an "appointed counsel" shall have ten days to prepare for a proceeding. And because there is no qualification stated in the statute, this means literally that each and all appointed counsel come within the mandatory terms of the statute. This theory extends indefinitely the mandatory preparation time required by the statute; nothing in the theory logically limits the mandatory time to the second or the hundredth "appointed counsel," for example.

More importantly, however, we believe the Court of Criminal Appeals has rejected the literalness theory upon which Marin must rely. In Henry v. State, 433 S.W.2d 430 (Tex.Crim.App.1968), the trial court appointed two attorneys seven months before trial to represent the defendant and appointed a third attorney only two days before trial. The attorneys announced "ready" for trial, made no motion for continuance, and did not waive with Henry's consent the ten days preparation time given appointed counsel by the terms of the statutory predecessor of article 1.051(e). On appeal, Henry raised for the first time the mandatory terms of the predecessor statute and sought to have it enforced, without reference to harm or prejudice, in connection with the third appointed attorney. Declining to reverse the judgment on this ground, the Court of Criminal Appeals declared "[t]he trial judge was under no obligation to appoint more than one counsel" and the legislature did not intend that such a situation should come within the mandatory terms of the statute. Henry, 433 S.W.2d at 433; see also Roney v. State, 632 S.W.2d 598, 601 (Tex.Crim.App.1982).

Henry differs from Marin's case in this: Two of Henry's trial counsel were appointed more than ten days before trial, while Marin's only trial attorney was his substitute counsel appointed less than ten days before trial. We believe this fact is irrelevant to the meaning to be assigned article 1.051(e), however important it might be in connection with Marin's statutory right to apply for a continuance and his constitutional right to counsel prepared to render reasonably effective assistance. See Tex.Code Crim.Proc.Ann. art. 29.03 (West 1989); Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 1616, 75 L.Ed.2d 610 (1983). Without question, a substitute appointed counsel would be entitled to raise a want of actual preparation time in connection with a motion for continuance, if that counsel is inadequately prepared. What is important is that the Court of Criminal Appeals implicitly rejected the theory of literalness upon which Marin must rely and the Court refused to extend to subsequently appointed counsel the benefit of the judge-made rule of presumed harm.

For the reasons given, we overrule Marin's first point of error.

We also overrule Marin's points of error two through seven. We have stated our reasons in our earlier opinion. See Marin, 801 S.W.2d at 948-49. No good purpose would be served by repeating those reasons here.

We therefore affirm the trial-court judgment.

ONION, Justice (Retired), dissenting.

I respectfully dissent again. On original submission appellant's judgment of conviction was affirmed. See Marin v. State, 801 S.W.2d 944 (Tex.App.--Austin 1990). I dissented with an opinion to the overruling of appellant's first point of error that the "trial court erred in not allowing court-appointed attorney ten days to prepare for trial, there being no written or oral waiver of the right accorded by statute." See Tex.Code Crim.Proc.Ann. art. 1.051(e) (West Supp.1993). The Court of Criminal Appeals granted appellant's petition for discretionary review to determine (1) whether the failure of the trial judge to allow appointed counsel ten days for trial preparation in violation of article 1.051(e) may be raised for the first time on appeal, and (2) whether, if so, such error is subject to a harm analysis under rule 81(b)(2) of the Texas Rules of Appellate Procedure. The court answered the first question "yes" and the second question "no" when it vacated our judgment and remanded the cause to this Court. Marin v. State, 851 S.W.2d 275, 280, 281 (Tex.Crim.App.1993). The Court of Criminal Appeals held that rules 52(a) (preservation of appellate complaints) and 81(b)(2) (harmless error rule) of the Texas Rules of Appellate Procedure were not to be applied to a violation of article 1.051(e). In its opinion remanding this cause for proceedings consistent with that opinion, the Court of Criminal Appeals noted the split among our three-judge panel on original submission and remanded "because the concurring opinion suggested a basis for discussion different than that presented on discretionary review."

The concurring opinion stated the judgment of conviction should be affirmed because (1) the appellate record did not show that appellant's trial counsel was "appointed counsel" within the meaning of article 1.051(e), and (2) if she was, the record was undisputed that she replaced a previous "appointed counsel who was given more than ten days preparation time." See Marin, 801 S.W.2d at 949-52.

The indictment, returned January 27, 1988, charged appellant and...