Moreno v. State

• Decision Date: 01 June 1983
• Docket Number: No. 626-82,626-82
• Citation: 659 S.W.2d 395
• Parties: Juan Baldomero MORENO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 395

659 S.W.2d 395

Juan Baldomero MORENO, Appellant, v. The STATE of Texas, Appellee.

No. 626-82.

Court of Criminal Appeals of Texas,

En Banc.

June 1, 1983.

Rehearing Denied Nov. 2, 1983.

Edward M. Carmona, McAllen, for appellant.

Rene A. Guerra, Dist. Atty., and Theodore C. Hake, Asst. Dist. Atty., Edinburg, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

The Corpus Christi Court of Appeals wrote that it reversed the judgment of conviction for aggravated robbery "only because the Court of Criminal Appeals has held that on direct appeal the provisions of 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. State, 382 S.W.2d 930 (Tex.Cr.App.1964) or, failing that, to find the ten days time for preparation begins with "date of indictment" rather than, as the court below held, with the date an accused confined in lieu of bail is served with a copy of the indictment. For his part, in a petition for discretionary review filed contemporaneously, the State Prosecuting Attorney asserts the time to start counting is date of appointment of counsel. ² As one might reasonably anticipate, appellant opts for the status quo and supports the rule fashioned by the court of appeals. We granted review to sort out the respective positions and contentions.

Beginning with the Old Code, when serious offenses were capital felonies, the predecessor statutes provided but one day for counsel to prepare for trial in a capital case, and the former court of appeals held, "This statute is not mandatory, and is only intended to secure time for necessary preparation to an intelligent management of the case, to the end that the party being tried shall have a fair trial." Brotherton v. State, 30 Tex.App. 369, 17 S.W.2d 932, 933 (1891). Accordingly, since it was not claimed that counsel was unprepared to proceed with trial and no injury was shown, there was no error. Ibid.

Not until 1957 was any amendment of consequence made to the statute, by then Article 494, C.C.P. 1925 and still applicable only to capital cases. Ex parte Meadows, supra, 418 S.W.2d at 667. After enactment of Acts 1957, 55th Leg., p. 392, ch. 193, the last sentence read: "The counsel so appointed shall have at least ten (10) days to prepare for trial, unless such time be waived in writing by said attorney." And we are informed by § 4 thereof, the emergency clause, that the act was passed because Article 494 "does not now provide sufficient time after an attorney is appointed before he is called for trial and the fact that this amendment is needed for the speedy administration of justice..." But it must be recalled that in those days appointment followed arraignment if an accused was without counsel and too poor to employ one, and at that time arraignment was required only "upon an indictment for a capital offense." Article 491, C.C.P.1925; see Historical Note to Article 26.01, V.A.C.C.P. Thus, the order of things was indictment, arraignment, appointment and trial more than ten days thereafter, unless waived.

Not yet enough, the article was again amended the next session by Acts 1959, 56th Leg., p. 1061, ch. 484, viz:

"Whenever it is made known to the court at arraignment or any other time that an accused charged with a felony is too poor to employ a counsel, the court shall appoint one (1) or more practicing attorneys to defend him.

The counsel so appointed shall have ten (10) days to prepare for trial, unless such time be waived in writing by said attorneys and the accused."

Then came the decision in Ex parte Gudel, supra, see note 1 ante, which was soon taken by the Court to mean that "the provisions of Art. 494, supra, are mandatory," Bennett v. State, 382 S.W.2d 930, 931 (Tex.Cr.App.1964)--so that even a waiver signed by an accused was not effective if his counsel had not joined in with his own signature. Ex parte Meadows, 418 S.W.2d 666 (Tex.Cr.App.1967) reaffirmed Bennett, and that compliance with all parts of the statute was "mandatory" thus became firmly established. ³ See Peters v. State, 575 S.W.2d 560 (Tex.Cr.App.1979), wherein Judge Tom Davis collected for a panel of the Court a host of decisions standing for the proposition that without a waiver signed by counsel and accused "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," id., at 561-562.

Of course, after 1959, a court was empowered to appoint counsel for an eligible accused at "any other time"--until January 1, 1966--and "at any time prior to arraignment" under Article 26.04(a). Thus, the pre1959 sequence of incidents of trial no longer necessarily obtained; but, barring some external intervention in the statutory scheme, as a practical matter it did since an attorney could not be compensated unless representing his client in the trial court. Article 26.05, V.A.C.C.P. and former Article 494a, C.C.P.1925; see Historical Note to Article 26.05, supra. In practice, then, appointment continued to follow indictment, so the courts were not called on to address the particular problems presented by the chronology of events in the case at bar, which we now set out in the margin. ⁴

Appellant remained in jail from arrest to trial. His appointed counsel never claimed an entitlement to ten days to prepare for trial nor, on the other hand, did he and appellant waive that period of time by written notice. We will find that both appellant and his counsel received all preparation time to which entitled and, therefore, there was nothing for either to waive.

Paralleling Old Code Article 466, providing time for appointed counsel to prepare for trial, were mandatory provisions allowing an accused two days after arrest and during term of court to prepare and file responsive pleadings to the charge against him, ⁵ specifying that if he were entitled to be served with a copy of the indictment the time began to run upon his being so served. Stephens v. State, 66 Tex.Cr.R. 359, 147 S.W. 235 (1912); Woodall v. State, 25 Tex.App. 617, 8 S.W. 802 (1888). In 1965 the articles were amended to allow ten days. Articles 27.11 and 27.12, V.A.C.C.P. and Special Commentary following the latter.

Thus, though the time to prepare for trial and to file responsive pleadings to the charging instrument are both ten days, the statutes with their discernable judicial gloss prescribe the beginning of the time period for the latter but not for the former. We find it utterly incongruous that ten days afforded counsel to prepare for trial be linked to the date of appointment while ten days granted an accused to prepare and file written pleadings is tied to the date of the charging instrument if he is enlarged on bail, or to the date of service if confined in lieu of bail on a felony offense. To be sure, as the State Prosecuting Attorney suggests, "the wise lawyer will begin preparations for a possible trial at the earliest opportunity," but the same wise lawyer may utilize the broad scope of pleadings provided with respect to the charging instrument, e.g., Article 27.02, V.A.C.C.P., and the helpful pretrial proceedings envisioned by Chapter 28 of the Code of Criminal Procedure better to prepare for trial on the charge that is actually made and against which a defense must be mounted. We hold that an attorney previously appointed to represent an indigent accused who is confined to jail in lieu of bail on a complaint is entitled to ten days to prepare for trial from the day the indictment or information is filed with the clerk of the trial court. ⁶

In the case at bar the indictment was filed April 29, 1981, and trial began May 11, 1981. Obviously appointed counsel had more than ten days after indictment to prepare for trial, and the record shows he used that time as effectively as conditions permitted. ⁷ It seems he filed all pleadings he and appellant desired. ⁸

For these reasons the judgment of the court of appeals is reversed and the cause remanded to that court for its disposition of the two remaining grounds of error presented to it by appellant in his brief.

TEAGUE, Judge, concurring.

The majority of this Court in its opinion has failed to consider and discuss whether, when trial counsel was appointed by the presiding judge of the 92nd judicial district court of Hidalgo County, such was a legal act of the district court judge.

Because I cannot find in the record where there was ever a legal appointment of counsel by the trial court, I am unable to agree with either the decision of the Court of Appeals or the majority of this Court. However, the result the majority reaches is a correct one because, without a valid and legal appointment, counsel for appellant has acted at all times in nothing less than in the capacity of a volunteer attorney. He was not entitled to invoke the provisions of Art. 26.04, V.A.C.C.P., concerning the time court appointed counsel is allowed for preparation of trial. Thus, the provisions of Art. 26.04, Id., are not applicable to this cause.

The record of appeal reflects that on February 11, 1981, which date was several weeks before the indictment was returned against appellant, and pursuant to request of the appellant, the presiding judge of the 92nd judicial district court of Hidalgo County, acting solely in that capacity, appointed counsel to represent appellant. An entry on the indictment reflects that a complaint had been filed in the Donna Municipal Court against appellant. We are not apprised of anything concerning either the filing of the complaint or the details of the complaint. We are also not apprised of the...