Jose MARIN, Jr., Appellant, v. The STATE of Texas, Appellee.
No. 1265-93.
Court of Criminal Appeals of Texas, En Banc.
Dec. 14, 1994.
267
In Geter v. State, 779 S.W.2d 403 (Tex.Cr.App.1989), this Court decided a defendant was entitled to more specific information on the allegation of “effective consent” in a theft case because, like Garcia, the means of accomplishing the prohibited conduct was dependent upon the aсt or omission of the defendant. The indictment alleged the act of appropriation. However, the means of accomplishing the appropriation that made it an offense in the particular case required the State to specify which statutory method(s) of “without effective consent” applied to show the negation of consent.
Finally, in Carter we noted that a defendant is entitled to further notice upon proper request if the language “concerning [his] conduct is so vague or indefinite as to deny him effective notice of the behavior in which he allegedly engaged.” Carter, 810 S.W.2d at 199. This Court characterized the offense of DWI as two types of offenses—the “loss of faculties” offense and the per se offense. Thus, the prohibited conduct of the defendant could be proved by showing the defendant drove while not having the normal use of faculties because of use of certain specified intoxicant(s) and/or by showing the defendant drove while having an alcohol concentration of 0.10 or more in his blood, breath, or urine. Since both means of accomplishing the prohibited conduct, driving while intoxicated, are statutorily defined, a defendant is entitled, upon рroper request, to notice of which means of intoxication the State seeks to prove.
In sum, in accord with Carter, we hold the definition(s) of intoxication is an element of involuntary manslaughter under
The last issue we address concerns the ramifications of the trial court‘s refusal to grant Appellant‘s motion to quash. The State contends the Court of Appeals erred by failing to conduct an analysis for prejudice as required by Adams v. State, 707 S.W.2d 900 (Tex.Cr.App.1986). In Adams we held that a defect in nоtice must prejudice the substantial rights of a defendant before reversal is warranted. In the instant case, after finding a notice defect in the indictment, the Court of Appeals failed to review the record for prejudice to Appellant‘s substantial rights. Accordingly, we vacate the judgment of the Court of Appeals and remand this case to that court to perform an Adams analysis.
McCORMICK, P.J., and WHITE, J., dissent.
OPINION ON APPELLANT‘S PETITION FOR DISCRETIONARY REVIEW
BAIRD, Judge.
Appellant was convicted of conspiracy to deliver cocaine and sentenced to twenty-five years confinement.
Troy C. Hurley, Temple, for appellant.
Arthur C. Eads, Dist. Atty., and James T. Russell, Asst. Dist. Atty., Belton, Robert Huttash, State‘s Atty., Austin, for the State.
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
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.
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.
In 1925, the Legislature created
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 other 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 the time by written notice, signed by the counsel and the accused.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
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 fair trial.” Brotherton v. State, 30 Tex.App. 369, 17 S.W. 932, 933 (1891).
In Meeks v. State, 456 S.W.2d 938, 939 (Tex.Cr.App.1970), we stated: “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 hаve a reasonable time in which they can prepare a defense.” In Moore v. State, 493 S.W.2d 844, 845 (Tex.Cr.App.1973), we stated: “The purpose of Article 26.04, supra, is to protect an accused‘s right to have adequate time to prepare for trial.” In Henson v. State, 530 S.W.2d 584 (Tex.Cr.App.1975), we said: “It is the actual preparation time, not the time of formal appointment, that determines whether a defendant has been given the mandatory preparation time for trial provided by the statute.” Id., 530 S.W.2d at 585 (citing McBride v. State, 519 S.W.2d 433, 434 (Tex.Cr.App.1974); Davis v. State, 513 S.W.2d 928, 930 (Tex.Cr.App.1974); and, Moore, supra).3
In Ex parte Dowden, 408 S.W.2d 512 (Tex.Cr.App.1966), and in Crothers v. State, 480 S.W.2d 642, 643 (Tex.Cr.App.1972), we held the appointment of an attorney to an indigent accused on the day of trial violated
B.
By focusing on the actual preparation time, and not the time of formal appointment, Henson, 530 S.W.2d at 585, to determine compliance with art. 1.051(e), we can fairly and effectively address the varied ways attorneys may be appointed. For example, in Meeks, supra, counsel was originally retained three months prior to trial and during that time he actively prepared for triаl. However, within ten days of trial, counsel attempted to withdraw because he had not been paid for his services. The trial judge denied the request but appointed counsel to represent the defendant. Id., 456 S.W.2d at 939. We held:
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 counsel here was to allow payment to the lawyer for his services, and no error is presented by the action of the trial judge.
Id.4
We have also considered situations where the trial judge appointed more than one attorney to represent the defendant. In Henry v. State, 433 S.W.2d 430, the defendant‘s first trial ended in a mistrial when the jury failed to reach a verdict. Id., 433 S.W.2d at 432. Two days before re-trial the trial judge appointed additional counsel to assist counsel who represented the defendant at the first trial. The defendant was convicted and, on appeal, contended additional counsel must be afforded the ten days preparation time of art. 26.04. We rejected the defendant‘s contention:
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 actively 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, 433 S.W.2d at 432-33. Further, in Roney v. State, 632 S.W.2d 598, the defendant was represented by three attorneys. Two of those attorneys were appointed in excess of the ten day statutory period for preparation. We held the appointment of a third attorney less than ten days before trial did not violate art. 26.04. Id., 632 S.W.2d at 601.6
When the Legislature meets, after a particular statute has been judicially construed, without changing that statute, we presume the Legislature intended the same construction should continue to be applied to that statute. Lewis v. State, 58 Tex.Crim. 351, 127 S.W. 808, 812 (App.1910). Additionally, the Code Construction Act provides: “when examining amendments to existing legislation to determine legislative intent, it is presumed that the legislature was aware of case law affecting or relating to the statute.”
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
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 prеparation 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, 433 S.W.2d at 432-33; and, Roney, 632 S.W.2d at 601. However, when the defendant was represented by only one attorney and that attorney was not afforded the statutory preparation time, we have always found no comрliance because the minimum statutory preparation time is mandatory. See, Ex parte Dowden, 408 S.W.2d 512; Farmer v. State, 419 S.W.2d 382, 383; Crothers v. State, 480 S.W.2d 642, 643; and, Houston v. State, 490 S.W.2d 851, 852.
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, 851 S.W.2d at 281, we reverse the judgment of the Court of Appeals and remand this case to the trial court.
McCORMICK, P.J., and WHITE, J., dissent.
CLINTON, J., concurs in the result.
MEYERS, Judge, 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 appointment 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 on the record in open court.”
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 Legislature 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 “extend[] indefinitely the mandatory preparation time required by the statute[.]” Marin, 862 S.W.2d at 185. He argued that the “theory of literalness” relied upon by appellant for the proposition that all appointed attorneys are entitled to ten days of preparation time before trial was necessarily rejected by this Court in past examinations of article 1.051(e). He calls particular attention to Roney v. State, 632 S.W.2d 598 (Tex.Cr.App.1982) and Henry v. State, 433 S.W.2d 430 (Tex.Crim.App.1968), in which we effectively held that only one appointed attorney need be given the full preparation period prescribed by law.
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. Such was not the legislative intent of Article 26.04 [the predecessor of article 1.051(e).]
433 S.W.2d at 433. We did not explain in Henry why the described circumstances “should not call for reversal” nor what we imagined the “legislative intent” really to be. Neither did we elaborate our position later in Roney when we relied upon Henry to reach the same result under much the samе circumstances. But both opinions were written at a time when we had not yet come to accept
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 entitled to 10 days but that others are nоt. 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 called upon to implement plainly does not express this distinction, even though the distinction could clearly and succinctly have beеn 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, 818 S.W.2d 782, 785-86 (Tex.Crim.App.1991). Neither do I know whether the Legislature actually took time before enacting the statute to forecast the cases to which it might apply. But it does not seem to me that the instant cause is so unusual that diligent legislators could not have anticipated it. I therefore see no reason to interpret the controlling law in this case differently than its plain language requires.
Of course, I am willing to accept that the purport of the statute is to assure appointed counsel enough time to prepare for trial, so as to optimize the probability indigent defendants will be represented effectively. Imposing an absolute requirement that all appointed counsel be afforded at least ten days in which to prepare, as the statute evidently does, might have been thought by the Legislature a reasonable means of accomplishing this goal. Supposing the Legislature thought that trial judges should never appoint substitute counsel unless necessary to the effective representation of an indigent defendant, it might well have been the Legislature‘s deliberate strategy to insist that all such attorneys, whether original or substitute, being thus necessary to the defense, have a minimum period of preparation. Because, from the face of the statute, it appears that this is what the Legislature in fact did, the courts are not at liberty to speculate that our lawmakers might really have had another purpose in mind which the statute on its face does not effectively accomplish or that the means chosen to accomplish it have put too heavy a burden on trial judges. Our job, and the job of judges at all levels, is to implement exactly the will of the Legislature as it is expressed in the written law, except when it would violate the constitution of Texas or of the United States to do so. Garcia v. State, 829 S.W.2d 796, 799-800 (Tex.Crim.App.1992).
Although Henry and Roney are distinguishable from the instant cause in exactly the way the majority dеscribes, 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 as 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, 530 S.W.2d 584 (Tex.Crim.App.1975); Meeks v. State, 456 S.W.2d 938 (Tex.Crim.App.1970). Questions of this kind are not before us in the instant cause, and I would imply no opinion concerning them.
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 tо 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, 533 S.W.2d 780, 783-84 (Tex.Crim.App.1976); Gonzales v. State, 532 S.W.2d 343, 345 (Tex.Crim.App.1976); Gleffe v. State, 501 S.W.2d 672 (Tex.Crim.App.1973). There is nothing in the record of this case to suggest that the judge could not have done so here. Moreover, being at liberty to deny the substitution, he might instead have decided to grant it only upon the condition that substitute counsel and the defendant agree to waive counsel‘s preparation time in the manner required by law. Burgess v. State, 816 S.W.2d 424, 428-29 (Tex.Crim.App.1991). There is likewise nothing in the record to suggest that he could not have pursued this option in the instant cause. What seems far more likely is that the trial judge in this case was simply unaware of article 1.051(e) or had forgotten its requirements when he granted appellant‘s motion for substitute counsel without resetting the date of trial. I would not wish to presume, absent persuasive evidence to the contrary, that he deliberately ignored the statute‘s clear mandate.
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 Cоunty should be reversed, and that this cause should be remanded to the trial court.
Sam Wendell RYAN, Appellant, v. The STATE of Texas, Appellee.
No. 499-94.
Court of Criminal Appeals of Texas, En Banc.
Dec. 14, 1994.
OPINION ON MOTION TO ABATE APPEAL
PER CURIAM.
Appellant was convicted by a jury of failure to stop and give information after an automobile collision. Punishment was assessed by the jury at 180 days in the Harris County jail.
The Court of Appeals remanded the cause to the trial court for a new punishment hearing. Ryan v. State, 874 S.W.2d 299 (Tex.App.—Houston [1st] 1994). The Court of Appeals found a new punishment hearing was necessary because the trial court improperly restricted voir dire examination of prospective jurors on an issue related to punishment.
The State has filed a Petition for Discretionary Review from the decision by the court of appeals. We have also received a “Motion to Abate” the appeal filed on behalf of appellant. Attached to the motion is a certified copy of appellant‘s death certificate. Appellant died on September 17, 1994.
The death of an appellant during the pendency of an appeal deprives both this Court and the court of appeals of jurisdiction. See Molitor v. State, 862 S.W.2d 615 (Tex.Cr.App.1993). Under these circumstances, the appropriate disposition is the abatement of the appeal. Tex.R.App.Pro.Rule 9(b). Accordingly, the appellant‘s “Motion to Abate” is granted, the State‘s Petition for Discretionary Review is dismissed, the Court of Appeals is directed to withdraw its prior opinion and the appeal is permanently abated.*
James R. Kuhn, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty., Karen A. Clark and Renee Magee, Asst. Dist. Attys., Houston, Robert Huttash, State‘s Atty., Austin, for State.