Lead Opinion
OPINION ON APPELLANTS PETITION FOR DISCRETIONARY REVIEW
Appellant was convicted of conspiracy to deliver cocaine and sentenced to twenty-five years confinement. Tex.Penal Code Ann. § 15.02; and, Tex.Rev.Civ.Stat.Ann. art. 4476-15, § 4.04(c) (see now, Tex.Health & Safety Code Ann. § 481.112(c)). The Court of Appeals affirmed. Marin v. State,
I.
On February 16, 1988, appellant requested the appointment of counsel and the trial judge appointed John Gauntt to represent appellant. Gauntt was subsequently permitted to withdraw and Fancy Jezek was appointed to represent appellant on May 10, 1988. Appellant’s trial began on May 16, 1988, six days later.
On direct appeal, appellant contended his conviction should be reversed because Jezek was not afforded ten days to prepare for trial as required by Tex.Code Crim.Proc.Ann. art. 1.051(e). The Court of Appeals held the issue was not preserved for appellate review because appellant made no objection at trial as required by Tex.R.App.P. 52(a). Marin v. State,
The issue on the instant appeal is whether an appointed attorney who replaces the originally appointed counsel is entitled to ten days preparation time under Tex.Code Crim.Proc.Ann. art. 1.051(e). A review of the statute’s legislative history as wеll as the decisional authority interpreting the statute is instructive.
II.
Art. 1.051(e), in relevant part, provides:
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 article has a legislative history spanning more than 130 years and six amendments.
The 1857 Code of Criminal Procedure provided:
When the defendant is brought into Court, for the purpose of being arraigned, if it appear that he has no counsel, and is too poor to employ counsel, the Court shall appoint one or more practicing (sic) attorneys to defend him.
Tex.Code Crim.Proc.Ann. art. 466 (Old Code 1856, revised 1879). The Code of Criminal Procedure 1879 revision provided:
When the defendant is brought into court for the purpose of being arraigned, if it appear that he has no counsel and is too poor to employ counsel the court shall appoint one or more practicing attorneys to defend him, and the counsel so appointed shall have at least one day to prepare for trial.
Tex.Code Crim.Proc.Ann. art. 511 (1879).
In 1925, the Legislature created Tex.Code Crim.Proc.Ann. art. 494, which read:
When the accused is brought into court for the purpose of being arraigned, if it appear that he has no counsel and is too poor to employ counsel, the court shall appoint one or more practicing attorneys to defend him. The counsel so appointed shall have at least one day to prepare for trial.
The 1957, the last sentence of art. 494 was changed to provide:
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.
Acts 1957, 55th Leg., p. 392, ch. 193, § 1.
The 1959 Legislature again amended the article to provide:
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.
Acts 1959, 56th Leg., p. 1061, ch. 484, § 1.
The 59th Legislature repealed art. 494 and enacted art. 26.04, which provided:
(a) Whenever the court determines at an arraignment or at any time prior to arraignment that an accused charged with a felony or a misdemeanor punishable by imprisonment is too poor to employ counsel, the court shall appoint one or more practicing attorneys to defend him. In making the determination, the court shall require the accused to file an affidavit, and may call witnesses and hear any relevant testimony or other evidence.
(b) The appointed counsel is entitled to ten days to prepare for trial, but may waive*270 the time by written notice, signed by the counsel and the accused.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. In 1987 the Legislature amended the Code of Criminal Procedure, creating art. 1.051 and restructuring art. 26.04. Today, the former art. 26.04(b) is the first sentence of art. 1.051(e).
Two constants are readily apparent throughout this legislative history: 1) an indigent defendant has a right to court appointed counsel; and, 2) appointed counsel must have a minimum number of days to prepare.
III.
A.
Our relevant precedent interpreting this article has consistently focused on the actual preparation time afforded appointed counsel, not the time of formal appointment, to determine compliance. More than a century ago, the former Court of Appeals held the statute, then art. 511 of the Code of Criminal Procedure, is “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 fan’ trial.” Brotherton v. State,
In Meeks v. State,
In Ex parte Dowden,
B.
By focusing on the actual preparation time, and not the time of formal appointment, Henson,
The purpose of Article 26.04(b) V.A.C.C.P. is clearly to guarantee to an indigent accused that he and his court appointed attorney will have a reasonable time in which they can prepare a defense. In the present case, it is clear from the record that appellant’s counsel had three months in which to prepare for trial. Appointment of counsеl here was to allow payment to the lawyer for his services, and*271 no error is presented by the action of the trial judge.
7d.
Several tunes we have addressed alleged violations of the statute where the appointed attorney had been forced to trial within ten days of re-indictment. In those cases we found no error because counsel had been appointed, albeit on the original indictment, in excess of ten days. Any difference in the indictments was negligible and in no way affected the defendant’s ability to prepare for trial. Guzman v. State,
We have also considered situations where the trial judge appointed more than one attorney to represent the defendant. In Henry v. State,
We decline, however, to reverse on this ground. It is clear that if counsel’s appointment has been more than ten days prior to trial, Article 26.04, supra, has no application, [citations omitted]. One of appellant’s trial counsel, Mr. Chanon, had been appointed over seven months prior to this second trial and had aсtively participated in the first trial. The trial judge was under no obligation to appoint more than one counsel, and the fact that he afforded the appellant the assistance of additional counsel under the circumstances here described should not call for reversal ... Such was not the legislative intent of Art. 26.04, supra. The fifth ground of error is overruled.
Henry,
When the Legislature meets, after a particular statute has been judicially con
With the foregoing in mind, we now turn to address the issue presented, namely, whether an attorney who is appointed to replace the originally appointed counsel is entitled to ten days actual preparation time under Tex.Code Crim.Proc.Ann. art. 1.051(e).
IV.
A.
The Court of Appeals held art. 1.051(e) was inapplicable to the instant case because appellant’s initially appointed counsel, Guantt, was afforded more than ten days actual preparation time. Relying upon Henry, supra, and Roney, supra, the Court of Appeals held art. 1.051(e) did not apply to subsequently appointed counsel. However, for the following reasons, we disagree.
The primary goal of art. 1.051(e) is to ensure the indigent defendant receives appointed counsel who is prepared for the proceeding. For this reason we have focused on the actual preparation time afforded counsel. As long as the defendant was represented by an attorney who was afforded the statutory preparation time, we found compliance with the statute. If the defendant was represented by more than one attorney, we found compliance where at least one of the defendant’s attorneys was afforded the statutory preparation time. See, Henry,
B.
In the instant case, Jezek was appointed only six days prior to appellant’s trial. Moreover, Jezek was appellant’s only counsel at trial. Further, appellant did not waive the statutory minimum preparation time of art. 1.051(e). For these reasons, we hold art. 1.051(e) was violated. Because such violations are not subject to a harm analysis, Marin v. State,
Notes
. Appellant's ground for review states:
The Court of Appeals erred in holding that while the provisions of art. 1.051(e) of Vernons Annotated Code of Criminal Procedure is mandatory and that a court appointed attorney is entitled to a full ten (10) days to prepare for trial after appointment, that the statute does not literally mean that a subsequent appointed attorney is entitled to the said ten (10) days; only the original appointed attorney.
. All emphasis is supplied unless otherwise indicated.
. The courts of appeals have also focused on preparation time when interpreting the statute. Lujan v. State,
.In Johnson v. State,
Assuming arguendo [counsel’s] change of status to an advisory capacity amounted to an appointment, there would still be no error presented. It is the actual preparation túne and not the time of formal appointment that determines whether defendant has been given the mandatory preparation time for trial provided by article 26.04.
Id„
. Additionally, in Lujan,
. Similarly, in Sheppard v. State,
Concurrence Opinion
concurring.
The only question presented on discretionary review in this case is whether the phrase “appointed counsel” in article 1.051(e) of the Code of Criminal Procedure includes an attorney appointed by the court to succeed one whom the court has let withdraw. The relevant facts are not in dispute. Shortly before his trial, the attorney appointed to represent appellant moved to withdraw and asked the court to substitute a different lawyer in his place. This motion was granted, apparently with the appellant’s approval. The case was not reset, however, and went to trial only six days after the apрointment of appellant’s new lawyer. Neither he nor his lawyer objected to this procedure at the time. But on appeal he argued that his conviction should be set aside and a new trial ordered because his attorney did not have ten days to prepare for trial.
The law controlling this issue provides that “[a]n 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 оn the record in open court.” Tex.Code Crim.Pro.Ann. art. 1.051(e) (West Supp.1994). Although no such waiver is reflected in the appellate record, a
No one questions the fact that substitute counsel was actually “appointed” within the meaning of article 1.051(e). But Justice Powers, writing for the lower court, reasoned that the Legislaturе could not have intended to afford substitute attorneys appointed by the court the same preparation time as attorneys first appointed by the court because it would empower the defendant to “extendí 1 indefinitely the mandatory preparation time required by the statute[.]” Marin,
That holding seems to have been original with the Court in Henry, and our entire rationale supporting it was that:
[t]he trial judge was under no obligation to appoint more than one counsel, and the fact that he afforded the appellant the assistance of additional counsel under the circumstances here described should not call for reversal merely because such written waiver was not signed by the appellant and his additional counsel before trial. Süch was not the legislative intent of Article 26.04 [the predecessor of article 1.051(e).]
On its face, the statute plainly and unambiguously provides that “[a]n appointed counsel is entitled to 10 days to prepare^]” Its language is not susceptible of the interpretation that some appointed lawyers are еntitled to 10 days but that others are not. The majority maintains, as did Justice Onion dissenting in the lower court, that Henry and Roney are distinguishable from the instant cause because the issue presented in those cases involved the appointment of additional, not substitute, counsel. Certainly, this difference might be a persuasive basis upon which to discriminate between appointed attorneys who should, as a matter of public policy, be given full preparation time and those who should not. But the statute we are callеd upon to implement plainly does not express this distinction, even though the distinction could clearly and succinctly have been expressed without any difficulty.
For my own part, I do not know what the Legislature actually intended when it enacted article 1.051(e). But I find no ambiguity or absurdity in the statute’s plain language that might require for its resolution an examination of the statute’s legislative history. Boykin v. State,
Of course, I am willing to accept that the purport of the statute is to assure appointed
For this reason I think Henry and Roney should be overruled. Although those cases arose in a slightly different factual context, the propositions of law upon which this Court expressly relied apply equally to the factual context presented in the instant cause. This Court did not deny relief to Henry and Roney because they were continuously represented by at least one attorney with more than ten days of preparation time, as the majority suggests. Rather, it is clear from our opinions in both cases that relief was denied upon the ground that the first appointed attorney is the only appointed attorney entitled to ten days of preparation under the statute. I therefore agree with the Court of Appeals that Henry and Roney “implicitly rejected” the reading of article 1.051(e) that substitute appointed counsel have a right to 10 days in which to prepare for “a proceeding.”
Although Henry and Roney are distinguishable from the instant cause in exactly the way the majority describes, the majority’s distinction is not relevant to the holding in those cases. Because the plain language of article 1.051(e) provides that all appointed attorneys be given at least ten days to prepare for court, I would hold that substitute and additional counsel who have been appointed pursuant to the statute are entitled to аs much preparation time as any attorney initially appointed by the court.
I do not mean by this to express any view on the method according to which preparation time should be calculated. In particular I do not suggest that an attorney who has made an appearance for, or otherwise been engaged to represent, an accused prior to the date of his appointment must be given ten additional days to prepare for trial following the date of his appointment. See Henson v. State,
Finally, as regards the fear that defendants will somehow seize control of court dockets, forcing interminable delays by substituting counsel repeatedly on the eve of trial, no such dire consequence is likely to follow from the Court’s opinion in this case. A trial judge is free under most circumstances to deny outright a request for the substitution of appointed counsel, particularly when such request comes near the date of trial. See Webb v. State,
Accordingly, although I disagree with the Court’s analysis, believing its interpretation of article 1.051(e) to be erroneous, I agree that the judgments of the Third Court of Appeals and of the 27th District Court of Bell County should be reversed, and that this cause should be remanded to the trial court.