Prince v. State, 46421
| Decision Date | 24 October 1973 |
| Docket Number | No. 46421,46421 |
| Parties | Jimmy Eugene PRINCE, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Melvyn Carson Bruder, Dallas, for appellant.
Henry Wade, Dist. Atty., W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.
This appeal is from a conviction for the offense of attempted robbery by assault. Punishment was assessed by a jury at ten years.
In light of our disposition of this case, a statement of the facts is not necessary.
Appellant contends he was denied effective assistance of counsel in violation of Article 26.04, Vernon's Ann.C.C.P., and Amendments VI and XIV of the United States Constitution.
Appellant and one Richard Sapp were jointly indicted and tried. Although Attorney Tim Banner was retained by both appellant and Sapp some time prior to trial, Attorney Melvyn Bruder was appointed on the day of trial to represent appellant. Immediately prior to trial, appellant and his newly appointed attorney moved to sever upon an assertion of inconsistent defenses. The court had appointed Bruder out of an abundance of caution to protect against any problems which might arise from continued representation of both appellant and Sapp by one attorney, presenting inconsistent defenses. Such a cautionary measure by the court could be effective only if Bruder were to assume responsibility for the defense of appellant and Banner for Sapp. The record reveals that this is precisely what occurred, and although Banner's name remained on the record as attorney for appellant, he clearly did not participate in his defense.
We commend the trial court for taking the cautionary measure of appointing separate counsel for appellant when the possibility of inconsistent defenses first became apparent, 1 and we recognize that such a cautionary practice can achieve its purpose only where, as here, counsel separately pursue the defenses of their respective clients. However, a reversal of the judgment in this case is required because appellant's counsel was appointed on the day of trial and the record fails to show a waiver of the ten day time period provided by Article 26.04, V.A.C.C.P., to prepare for trial. Crothers v. State, Tex.Cr.App., 480 S.W.2d 642; Farmer v. State, Tex.Cr.App., 419 S.W.2d 382.
Although the state urges that appellant was represented by Banner as well as Bruder, that Banner was counsel for appellant long before trial, and that therefore Article 26.04 Supra, does not apply, it is clear from the record that Bruder alone conducted the defense of this appellant, and that Banner presented the defense of Sapp only. Cf. Ex parte Barnes, Tex.Cr.App., 478 S.W.2d 547. Henry v. State, Tex.Cr.App., 433 S.W.2d 430, does not control the instant case because the defendant there had the assistance of both attorneys, and not just of the appointed attorney.
Because of our disposition on this ground, we do not reach the other grounds of error raised.
The judgment is reversed and the cause remanded.
I joined in the reversal of this conviction.
The effect of the holding of this Court in Houston v. State, Tex.Cr.App., 490 S.W.2d 851, appears to be that whenever a court appoints an attorney he must also secure a waiver of the ten days to prepare for trial provided by Art. 26.04, V.A.C.C.P., or not put an accused to trial. The failure to comply with Art. 26.04, supra, may be raised for the first time on appeal. Steward v. State, Tex.Cr.App., 422 S.W.2d 733, cited in Houston v. State, supra.
This cause is being reversed because the trial court appointed additional counsel 'in an abundance of concern and caution.' Banner, who was retained counsel for both Sapp and Prince, on the day of the trial, stated that he thought the defenses of the two were inconsistent. The statement of Mr. Banner to the court at the time of the appointment shows that their defenses were not inconsistent, because he stated that Prince, the appellant, claimed alibi and Sapp did not.
When additional counsel was appointed, the court stated, 'And, the court, however, considers Mr. Tim Banner to be the lead counsel in both cases and be the attorney of record, but in abundance of concern and caution, the court has appointed Mr. Mel Bruder, considers (him) a very able attorney, to help in the case of Jimmy Eugene Prince.'
It appears from the record that appellant's chief concern was not to be tried jointly with Sapp. In Thompson v....
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Henson v. State, 50702
...time to prepare for the new enhancement 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.2......
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Pete v. State
...to the same procedure at any point during the trial. We are loath, however, to recommend or require such a procedure. See Prince v. State, Tex.Cr.App., 500 S.W.2d 533; cf. The American Bar Association Standards for Criminal Justice relating to the Function of the Trial Judge, Approved Draft......
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...the decision in the Loyd case, supra. The final contention is overruled. The judgment is affirmed. 1 The recent case of Prince v. State, 500 S.W.2d 533 (Tex.Cr.App.1973), was reversed where the trial court appointed separate counsel, on the day of trial, to represent the accused and a co-in......
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Davis v. State
...this appellant and Bearden to represent Ballard, and the case against this appellant went to trial. Our recent opinion in Prince v. State, Tex.Cr.App., 500 S.W.2d 533, is not here controlling, because in that case Attorney Bruder had no time to prepare to defend Prince. Here Martin had one ......