Moreno v. State
| Decision Date | 30 June 1982 |
| Docket Number | No. 13-81-220-CR,13-81-220-CR |
| Citation | 653 S.W.2d 457 |
| Parties | Juan Baldomero MORENO, Appellant, v. STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Edward M. Carmona, McAllen, for appellant.
Robert Salinas, Crim. Dist. Atty., Edinburg, for appellee.
Before YOUNG, UTTER and KENNEDY, JJ.
We withdraw our opinion of June 3, 1982, and substitute this opinion.
This is an appeal from a conviction of aggravated robbery. Punishment was assessed at 20 years in the Texas Department of Corrections. The sufficiency of the evidence is not challenged. We reverse.
The issue before this Court is whether the appellant's court appointed attorney was provided with the statutory ten day period in which to prepare for trial. Art. 26.04(b) Tex.Code Crim.Pro.Ann. (Vernon 1979) 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."
In the instant case, no written waiver of the ten day period to prepare for trial was executed by appellant and his counsel. The State argues that appellant's failure to raise the issue in the trial court waives error, if any. It is settled, however, that in a direct appeal it is wholly immaterial whether any complaint regarding sufficiency of preparation time was raised at trial. Henson v. State, 530 S.W.2d 584 (Tex.Cr.App.1975). The Court of Criminal Appeals has also held that absent a written waiver, the failure to allow appointed counsel ten days to prepare for trial requires reversal on direct appeal without the necessity of showing harm or prejudice. Peters v. State, 575 S.W.2d 560 (Tex.Cr.App.1979) and cases cited therein. Since no written waiver was filed, this issue is properly before us for review.
The record reflects that appellant was arrested on February 5, 1981, and that counsel was appointed on February 11. The grand jury indicted the appellant on April 29, 1981. Appellant was in jail on the date of indictment.
Art. 25.02 Tex.Code Crim.Pro.Ann. (Vernon 1979) provides that the sheriff shall immediately deliver a copy of the indictment to the accused. Five days later, on May 4, 1981, the trial court issued a precept to the sheriff to serve a copy of the indictment on the appellant. Trial began on May 11, 1981, only seven days after the precept was issued.
We agree with appellant's argument that counsel should have had ten days after the appellant was served with a copy of the indictment in which to prepare for trial. The purpose of Art. 26.04(b) is to protect an accused's right to have an adequate time to prepare for trial. Moore v. State, 493 S.W.2d 844 (Tex.Cr.App.1973). Under the circumstances of this case, the appellant's court-appointed attorney had less than ten days after the indictment was issued in which to prepare a defense.
While we can find no authority directly on point, two similar cases indicate to us that reversal is required. In Hayles v. State, 507 S.W.2d 213 (Tex.Cr.App.1974), the Court of Criminal Appeals upheld appellant's conviction even though appointed counsel was not provided the statutory period in which to prepare for trial after re-indictment. The accused had been indicted on April 27, 1972 for exhibiting a shotgun during the course of an armed robbery. Counsel was appointed on July 21, 1972. On September 1, 1972, the original indictment was dismissed and a new indictment was presented, changing the word "shotgun" to "pistol". The case went to trial on September 6, 1972. The Court admonished trial judges to avoid proceeding to trial within ten days of re-indictment and said, "While we are able to conclude that in this case, (emphasis in original) in light of the appellant's defense, the facts do not warrant reversal, we do not intend to invite dismissals of indictment and re-indictments, and then not allowing counsel the ten days in which to prepare for trial." The Court noted that the indictments were similar, that the changed indictment had no effect upon the accused's alibi defense, and that all defense motions and papers which had been filed under the first indictment were accepted under the second indictment.
Another similar case in which the Court of Criminal Appeals upheld the conviction was Guzman v. State, 521 S.W.2d 267 (Tex.Cr.App.1975). Once again, the Court noted that the differences between the original indictment and the...
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Moreno v. State
...Article 26.04 are mandatory, that no objection needs to be made at trial, and that no showing of harm is necessary." 1 Moreno v. State, 653 S.W.2d 457 (Tex.Cr.App.1982). The State, through its district attorney, would have us reexamine and overrule a generation of cases since Bennett v. Sta......