Schafer v. State, No. 41828

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtONION; DOUGLAS
Citation436 S.W.2d 352
Docket NumberNo. 41828
Decision Date22 January 1969
PartiesJames Robert SCHAFER, Appellant, v. The STATE of Texas, Appellee.

Page 352

436 S.W.2d 352
James Robert SCHAFER, Appellant,
v.
The STATE of Texas, Appellee.
No. 41828.
Court of Criminal Appeals of Texas.
Jan. 22, 1969.

Ted Fair, Waco, for appellant.

Martin F. Eichelberger, Dist. Atty., George Allen, Asst. Dist, Atty., Waco, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is burglary with intent to commit theft; the punishment, enhanced under the provisions of Article 63, Vernon's Ann.P.C., life.

The sufficiency of the evidence is not challenged and we do not deem it essential to set forth the facts.

On appeal appellant contends (1) the court erred in overruling his sworn motion requesting appointment of counsel by reason of his indigency and (2) that such failure deprived him of his statutory ten-day period to prepare his defense.

The record reflects that the appellant was indicted on November 9, 1967, and was released on bond the following day. One of the sureties on said bond was W. S. Foster, attorney. On November 27, 1967, the sureties requested of the court to be relieved of their undertaking and an arrest warrant was issued for the appellant-principal which was executed on December 1, 1967. See Articles 17.16--17.19, Vernon's Ann.C.C.P.

On March 11, 1968, the appellant filed a sworn 'combined' motion for continuance and for the appointment of counsel. In said motion, among other things, he alleged that W. S. Foster ceased to be his attorney when he 'got off * * * bond'; that he had paid another lawyer $250.00 cash to participate in the disposition of the case; that he was now destitute, without funds and unable to employ counsel. On

Page 353

the same date the court overruled such combined motion stating in its order that with the appellant and his attorney, W. S. Foster, present the court had considered the motion and the evidence adduced thereon and found that such motion should be denied.

The evidence adduced at such hearing is not in the record before us.

On March 12, 1968, the record reflects the following occurred just prior to trial.

'MR. ALLEN: The state is ready, your Honor.

'MR. FOSTER: The Defense is not ready because of the fact that I am not representing the Defendant, I am just here in Court. There was an Order of the Court for me to be here. I haven't prepared anything in the case because I wasn't employed by the Defendant, and I am not an Attorney of Record.

'COURT: Well, Mr. Foster, I know that shortly after this Defendant was...

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7 practice notes
  • David v. State, No. 42663
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • March 18, 1970
    ...presented we cannot agree that the court abused its discretion in overruling the motions to withdraw. Schafter v. State, Tex.Cr.App., 436 S.W.2d 352; Garza v. State, Tex.Cr.App., 440 S.W.2d 860. See also Estrada v. State, Tex.Cr.App., 406 S.W.2d 448. The record before us does not support an......
  • Marin v. State, No. 3-88-179-CR
    • United States
    • Court of Appeals of Texas
    • December 19, 1990
    ...the 10 days preparation time applies only to "appointed counsel." Former art. 26.04 was not less clear in this regard. Schafer v. State, 436 S.W.2d 352, 354 (Tex.Cr.App.1969). Moreover, a complaint regarding the 10 days preparation time could be entertained only if the appellate record show......
  • Carter v. State, Nos. 45048
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • May 31, 1972
    ...in this case than those in Steward v. State, Supra. See also Lee v. State, 478 S.W.2d 469 (Tex.Cr.App.1972) and Schafer v. State, 436 S.W.2d 352 This case is unlike that of Lepoleum Crothers v. State, 480 S.W.2d 642 (Tex.Cr.App. May 31, 1972), in which the record affirmatively showed that t......
  • Butler v. State, No. 48208
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • March 13, 1974
    ...Clark v. State, 417 S.W.2d 402 (Tex.Cr.App.1967); McCandless v. State, 425 S.W.2d 636 (Tex.Cr.App.1968); Schafer v. State, 436 S.W.2d 352 (Tex.Cr.App.1969); Young v. State, 448 S.W.2d 484 (Tex.Cr.App.1970); and Art. 26.04, Under the record before us appellant was not entitled to a free tran......
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7 cases
  • David v. State, No. 42663
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • March 18, 1970
    ...presented we cannot agree that the court abused its discretion in overruling the motions to withdraw. Schafter v. State, Tex.Cr.App., 436 S.W.2d 352; Garza v. State, Tex.Cr.App., 440 S.W.2d 860. See also Estrada v. State, Tex.Cr.App., 406 S.W.2d 448. The record before us does not support an......
  • Marin v. State, No. 3-88-179-CR
    • United States
    • Court of Appeals of Texas
    • December 19, 1990
    ...the 10 days preparation time applies only to "appointed counsel." Former art. 26.04 was not less clear in this regard. Schafer v. State, 436 S.W.2d 352, 354 (Tex.Cr.App.1969). Moreover, a complaint regarding the 10 days preparation time could be entertained only if the appellate record show......
  • Carter v. State, Nos. 45048
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • May 31, 1972
    ...in this case than those in Steward v. State, Supra. See also Lee v. State, 478 S.W.2d 469 (Tex.Cr.App.1972) and Schafer v. State, 436 S.W.2d 352 This case is unlike that of Lepoleum Crothers v. State, 480 S.W.2d 642 (Tex.Cr.App. May 31, 1972), in which the record affirmatively showed that t......
  • Butler v. State, No. 48208
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • March 13, 1974
    ...Clark v. State, 417 S.W.2d 402 (Tex.Cr.App.1967); McCandless v. State, 425 S.W.2d 636 (Tex.Cr.App.1968); Schafer v. State, 436 S.W.2d 352 (Tex.Cr.App.1969); Young v. State, 448 S.W.2d 484 (Tex.Cr.App.1970); and Art. 26.04, Under the record before us appellant was not entitled to a free tran......
  • Request a trial to view additional results

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