*2 court urges now that the trial POWERS, Before JONES and there was article because violated ONION,* JJ. oral, waiver, ten-day written period. preparation JONES, Justice. to the In article 1.051 was added Appellant conspiracy convicted of 1987 Tex. of Criminal Procedure. Code commit
with intent to the offense Gen.Laws, ch. at effective § aggravated delivery of cocaine over 400 (e) pro- September Section thereof grams. See Tex.Pen.Code Ann. 15.02 § part: vides in (1974) Tex.Gen.Laws, and 1983 ch. § 4476- is entitled to 10 art. An [Tex.Rev.Civ.Stat.Ann. 4.03(c) (Texas proceeding may Controlled Substances for a § Act) repealed].1 Following jury’s since the con- with waive verdict, appellant's the trial court assessed on the writing sent of (25) twenty-five years’ im- punishment at court....
prisonment. 1.051(e) (Supp. Tex.Code Cr.P.Ann. 1991). provision replaced sub- one, This former of error advances (b) of 26.04 of the 1965 Code the trial “erred in section the contention that Procedure, which contained allowing court-appointed attorney ten * Onion, Jr., (re- Judge Safety Ann. Presiding now & Code Before John F. 1. See Tex.Health tired), Appeals, sitting by 481.112(c) as- (Pamph.1991). Court of Criminal § signment. Code 74.003 § See Tex.Gov't Ann. (1988). language.2
similar
preserve
complaint
order to
review,
appellate
party
must have
purpose
guar
of the statute was to
presented to
trial court
timely
re-
antee an
defendant that he and his
motion,
quest, objection or
stating the
*3
appointed counsel would have a reasonable
specific grounds
the ruling
he desired
time
to
a defense. Hamel v.
specific
if
grounds
court to make
State,
424,
582 S.W.2d
428 (Tex.Cr.App.
apparent
were
from the
It
context.
1979). The former statute was held to be
necessary
complaining par-
also
for the
mandatory,
comply
failure
therewith
ty
ruling upon
party’s
to obtain a
was held to constitute reversible error
request, objection or motion.
necessity
without the
harm or
prejudice.
State,
See Peters v.
575 S.W.2d
52(a)
Tex.R.App.P.Ann.
(Pamph. 1990).
560,
(Tex.Cr.App.1979).
561
It was also
only
The
limitations on
relevant
the rule-
held that a
of the
violation
statute could be making power of the Court of Criminal
raised for the
time on
appeal.
direct
Appeals
“may
abridge,
rules
that
State,
(Tex.
Henson v.
530 S.W.2d
585
enlarge, or
modify
rights
substantive
Cr.App.1975);
State,
Houston v.
490
litigant.”
of a
Tex. Gov’t Code Ann.
S.W.2d
852
22.108(a) (1988).
§
recognize
26.04(b)
We
former
that
article
52(a) plainly
procedure
Rule
a rule of
mandatory
that a violation
thereof
rights
and does not
affect
substantive
probably would have called for reversal
of a
A
criminal defendant.
defendant still
any
without
harm
inquiry
and without
right, pursuant
1.051(e),
has the
to article
having
objected
been
to or otherwise
days
appointment
to ten
between
of coun-
brought to the
attention
the trial court.
only
52(a)
impact
sel and trial.
of Rule
The
We
recognize
that the
provi-
relevant
complain
is that if the
wishes to
26.04(b)
sions of former article
have been
abridgement
appeal
on
about
of that
brought
1.051(e).
forward in article
How-
court,
right by the trial
he must have
ever,
adoption
we
conclude that
of the
“presented
timely
trial court a
re-
Appellate
Texas Rules of
Procedure in 1986 quest, objection motion” and
obtained
changed prior law.
ruling
proce-
thereon.
it relates to
Because
only,
52(a)
dure
Rule
does not violate sec-
that,
We hold
under
circumstances
tion 22.108 of
the Government Code.
above, appellant
described
waived
er-
Clearly,
power
such a
is within the
rule
1.051(e).
ror regarding article
See Tex.
Appeals
promul-
Court
1.14(a) (Supp.1991).
Code Cr.P.Ann. art.
gate.
remaining question
is sim-
We
suggest
do not
that
waived
52(a)
ply
says.
means
whether Rule
what
right
appointed attorney
for his
to have
We hold that it does.
ten
before trial. The
only way
right could
that
have been
State,
Sodipo
In both
v.
No. 1390-88
waived was to have the consent of the
12, 1990) (not
(Tex.Cr.App., September
yet
writing
defendant in
or on the
(State’s
reported)
rehearing
motion for
court,
1.051(e).
as set forth
article
28, 1990),
granted
Young
November
v.
waive,
right
did
how- State,
(Tex.Cr.App.1990),
Rule Procedure 1986. 26.04(b) notice, signed by provided: Article written counsel and accused. is entitled trial, Tex.Gen.Laws, § waive ch. at 425. the time 1965
947
(Tex.Cr.
grounds,
283
other
758 S.W.2d
complete
Such
failure to
State,
v.
put
Moncivaiz
might
App.1988);
752 S.W.2d
issue to
trial court
be said
C.J.,
posture
(Tex.App.1988) (Nye,
this case in
at-
dissent
a collateral
so,
rev’d,
(Tex.Cr.App.
as to
Even if this were
ing),
tack
that issue.
S.W.2d
long
Mason v.
1989);
the Court
has
of Criminal
ref’d).
pet.
held that
collateral attack based on
While it
(Tex.App.1987,
519-20
ten-day requirement,
“mandatory”
violation
that all
not been held
has
must
party attacking the conviction
show
to a harmless
subject
are'"
statutes
now
Reed,
See Ex Parte
harm.
Rob
See
analysis, at
are.
least some
v.
Sutton
(Tex.Cr.App.1981);
(Tex.
435-36
erts
*4
(Tex.Cr.App.1975);
425-26
Cr.App.1990).
Meadows, Ex Parte
S.W.2d
of
recognize
the Court
We
present
In the
recently
analysis
a harm
held that
allegation
an
of
there has
even
not been
of a
applied
should not be
to the violation
harm,
harm.
much less a
of
mandatory
the appellate
where
statute
While we
not hold that such a “collat-
do
any
record does not
concrete data
“reveal
analysis
applied
eral attack”
must be
an
mean
appellate
from which
court can
appellate
preserved
where error is not
the
ingfully gauge
quantify
or
the effect of
52(a)
review,
language
the
Rule
plain
of
at -;
Sodipo,
see also Beebe v.
error.”
at least
would demand that
be
(Tex.App.1988, pet.
POWERS, Justice, concurring. writing in in court.” on record I in concur Justice Jones’s view that we provision A in art. 26.04 was similar former the judgment not reverse below based “appointed unless to mean that construed upon requirement, in Tex.Code Cr.P. required days 10 counsel” received the 1.051(e) (Supp.1991), “ap- Ann. art. that (irrespective time of the date of preparation pointed days prepa- must 10 counsel” appointment) formal or a waiver was begins. a proceeding ration time before shown, appellate court must sustain on My (1) appellate reasons are two: appeal of error com- defendant’s Jezek, does show record not that Marin’s State, plaining regard. in v. that Henson “appointed attorney, an with- was counsel” 584, (Tex.Cr.App.1975); 530 585 S.W.2d statute; meaning (2) and even State, 643 v. Crothers was, if undisputed she the record is that “appointed replaced previous she coun- sel” 10 who was more than quite clear that The text of art. 1.051 preparation Nothing time. art. 1.051 or only days preparation applies time 10 construing implies in a the cases that “appointed counsel.” Former art. 26.04 must reverse the ease like we regard. was not less clear this Schafer presumed harm is and judgment because (Tex.Cr.App. v. 436 354 S.W.2d complain need not in the trial 1969). Moreover, complaint regarding regarding days prepara- court a want of the 10 could en tion time. appellate if tertained record affirmatively that “counsel
showed THE STATUTE appointed.” fact Harville (Tex.Cr.App.1980); see provisions obviously 1.051 art. designed effectuate a criminal defen- also Bowers v. (“This
(Tex.Cr.App.1978) provision May 10, After represented Jezek only applies Code counsel. Marin under the order of that date. She There in this record day filed on the motions, several appellant’s trial counsel was ready 16, 1988, announced trial May on trial.”). this and conducted the trial thereafter. She did ground, move for continuance on complain and did not in the trial court that WHETHER THE RECORD SHOWS AF- given adequate she time to FIRMATIVELY THAT JEZEK WAS any aspect of the case. Jezek was an MARIN’S “APPOINTED COUNSEL” “appointed counsel” within meaning February shows on 1.051, arguably art. she was to 10 entitled 1988, Marin applied to the district court days preparation paragraph (e) time under requesting appointment of counsel to statute, arguably entitled to represent him because he was without upon reversal on based the construc- counsel; means to employ on the same given by tion Ap- Court of Criminal day the John Gauntt in an peals antecedent art. 26.04. signed order judge, expressly based dissenting infers, opinion from cir upon Marin’s affidavit that he was without gleaned cumstantial ap evidence from the poor counsel and employ too counsel. record, pellate “appoint that Jezek was an in February Later and in March (1) ed predecessor counsel”: Jezek’s Gauntt filed various motions in Marin’s be- “appointed” Gauntt was shown half and relief obtained thereon. Trial was record, application based Marin’s upon May set for point, 1988. Until this (2) indigency; the docket sheet bears the had precise 1.051 effect it was intended apt.”; (3) notation “Jezek Marin is ordinary to have case which an represented appeal by “appointed coun “appointed defendant has coun- appellate authority sel.” if our in Even sel.” power original cluded a to make deter fact 10, 1988, May however, On Gauntt filed character, minations this I believe it is *7 following the motion: not the of what Court the Court to substitute in his Now comes John Gauntt ... and moves stead as the [*] (cid:127)* Attorney [*] [*] for Defendant: [*] place # and there must be a in of Art. had in fact 869. Bowers appointed mind when it held 26.04(b) ...” showing in implies order Harville, that counsel was in that an find a Bowers violation explicit “that Fancy showing appointment H. Jezek of an of counsel required; appearance pau there the aof 10,310 P.O. Box per’s in the appellate oath record was Killeen, TX 76547-0310 support deemed insufficient to an inference [*] [*] [*] [*] sfc [*] that counsel was appointed under art. 26.- Bowers, Curiously, at 931. day, signed the same On the court and court was not to rest Bowers content following the clerk filed order on holding alone, its on that basis for the Gauntt’s motion: pointed out that coun Bowers’s [*] [*] n [*] [*] sfc sel had “filed no motions continuance” represented pre-trial and had at “the hear day May, On this the 10th of it is ing prior familiarity that he had this with Fancy ordered that name of H. Jez- appear cause and nowhere there to be does ek, Attorney be as substituted Defen- an allegation surprise or harm.” There place dant and stead of John are, however, important more that reasons Gauntt. preclude “appointed as coun Jezek’s status [******] sel” within the meaning of art. 1.051. That statute only assumption contemplated art. 1.051. gratuitous It is a that by ordinary case in which appointed pur- contemplates was the trial court Jezek pos- is, moreover, “as as single lawyer 1.051. It an soon suant art. defendant, at assumption contrary represent sense of that criminal sible” to indigen- showing and record in case. The statute this and on his his by contemplates lawyer represents counsel chosen cy, statute that then and represent ordered to a de- throughout trial court and the course of all. provide fendant who has no counsel at proceeding. The statute does not contrast, by at- Jezek was chosen Marin’s “appoint- one expressly for a case which torney and had counsel Gauntt Marin succeeds another within ed counsel” (Gauntt) at question. the time having “proceeding,” scope is to fall within the case by preparation time reason ample had by expansion art. 1.051 it be an can months in advance appointment his several through interpretation; that statute can- Nor does the statute proceeding. the case fits literal- possibly be because a criminal defendant provide expressly for ap- ly within the circumstances which “appointed his counsel” designate own pointments are made under art. 1.051. requesting in a motion the trial court lawyer particular substitute that “appoint- I would hold Jezek was not previously by “appointed counsel” chosen meaning ed counsel” within the of art. represent and the trial court ordered does 1.051. record not show affirma- then construe art. defendant. Shall we tively that she 1.051(e) rigor applying in full in such as statute; provisions under that Marin circumstances, so must reverse that we instead, affirmatively shows judgment the defendant claims below when that that Gauntt was so and Jez- lawyer that did not have ek was substituted for Gauntt on motion guaranteed by filed in Marin’s behalf at a time and for statute, harm without a presume judged reasons must that we any necessity for the defen- without by Gauntt and Marin to in the latter’s first in dant raise the matter affirma- best interest. record shows court? tively Jezek selected Gauntt Marin, the court under I hold that we not construe would 1.051; affirmatively art. it shows suggested. the manner Marin had when became his Jezek statutory pur- Nothing in the text or the lawyer, as to the opposed situation which *8 implication pose gives rise an that only no a defendant has counsel at all—the in the apply in that manner statute should in which authorizes circumstance art. 1.051 appellant nor present case. Neither appoint the trial to choose and coun- court dissenting opinion suggests a reason him for under that sel statute. by extending scope of the for so statute they to rest
implication; are content opaquely on the literal terms the statute AN “APPOINT- ASSUMING JEZEK WAS obvi- circumstances of this case when the 1.051, ART. ED UNDER COUNSEL” ously not come within those terms. do THE MUST WE REVERSE JUDG- however, are rather obvi- Conversely, there A THEORY MENT BELOW ON OF extending against ous the statute reasons HARM AND ABSENT A PRESUMED applies man- by implication so in the IN THE TRIAL COURT COMPLAINT ner suggested: RELATIVE TO PREPARATION TIME? moves, 1. a criminal defendants When law- to substitute a present as The circumstances of the case do yer choosing “appointed for the not, given previously, fit of his own for the reasons designated previously by the trial scope circumstances counsel” into literal 1.051, court art. under the defendant appellant there- his first ad- by right invokes his constitutional to coun- vances the contention that the trial court sel of choosing; his own and the trial court allowing court-appointed “erred in not at- might infringe right by overruling the days trial, torney for there motion. being right no written or oral waiver by accorded the statute.” See Tex.Code 2. Not is right the defendant’s 1.051(e) (Supp.1990). Cr.P.Ann. art. choose his own counsel invoked such a motion; his to control his defense is indictment, January returned involved the matter. When the 1988, charged appellant twenty-one files defendant within motion the 10 other named defendants and four named the proceeding begins, before pre- he but co-conspirators conspir- unindicted with sumably has determined consultation acy with intent to commit the offense with “appointed his initial counsel” that a aggravated delivery over cocaine timing substitution counsel and the of grams. Twenty-two (22) acts overt were in motion his best interest. This alleged, ranging in time from October especially implied no when January Appellant’s 1986 until 1988. made 10-day for continuance permitted retained counsel were to with- statutory period preparation is not in- February Upon draw on the fil- Moreover, voked in the trial court. ing indigency, attorney of an affidavit of may rely upon the ethical consid- John Gauntt was prohibit erations that the new counsel from on the date retained counsel representation accepting unless he is suffi- May attorney withdrew. On ciently prepared competent to render ser- Gauntt filed a “Motion to Substitute Attor- vice, prevent previous counsel from ney requesting Fancy For Defendant” withdrawing doing prejudice if would so Jezek, attorney, be “in his substituted representation. the defendant’s place attorney to serve and stead as the view, It seems to me the better such a signed Defendant.” motion was case, simply to “tack” times for prepa- granted Gauntt and The court Jezek. applying ration insofar is motion on same date. docket sheet concerned, complaint absent some in the “apt.,” reflects Jezek was and there was no “appointed” trial that the second at- any change appel- at the time torney did indeed lack sufficient time to indigent.1 ap- lant’s as an There status proceeding. In other question pears to that Jezek was words, I would take the view that the trial counsel for the trial the mer- appointment of the regular court’s partic- its.2 Gauntt withdrew and did statute; satisfied com- ipate in the trial where was tried plaint by the second counsel that jointly Excluding five with co-defendants. adequate he lacked would May pre- Jezek had five made in the court and to be come pare Attorney for trial. did not re- Jezek ordinary appellate within the rules about quest any way object a continuance or *9 preservation harm of error as these being appointed as substituted less opinion are outlined of Justice Jones. than before announced days ten trial. She “ready” proceeded represent appel-
ONION, (retired), dissenting. Justice throughout Following lant the trial. conviction, file a appellant did not motion disposition respectfully I dissent to of for new trial. record is devoid error, appellant’s first of and the period ten-day preparation waiver as given interpretation to the statutes in- required by majority. volved statute. contrary represented by Appellant 2. The State does not contend that is appeal. true. counsel on
953 851, 1987, State, 852 v. 490 S.W.2d article 1.051 was added to the Houston (Tex.Cr.App.1973). A defendant was Code Criminal Procedure. 1987 Tex. continuance, Gen.Laws, 1, 3321, 979, required a motion for ch. at effective to file § (e) ten-day file a motion September pro- period, 1987. Section thereof to be considered on part: vides for new trial order appeal. wholly It immaterial Id. was An counsel is entitled to 10 any complaint regarding suffi whether proceeding may ciency preparation raised of the was waive the time with the con- State, trial. Henson v. 530 S.W.2d writing sent the defendant in or on the of a vio (Tex.Cr.App.1975). 585 issue record in court.... could even be con lation of the statute 1.051(e)(Supp.1990). Tex.Code Cr.P.Ann. § unassigned as sidered provision replaced This former subsec- justice. the interest Id. (b) of tion article 26.04 the 1965 Code of Statutes, Tex.Jur.3d., 143 at 766-67 67 § Procedure which similar contained (1989) provides: language.3 purpose of that statute ma- When a statute reenacted without guarantee indigent was presumed change, generally terial it is he his appointed counsel would legislature adopted knew have reasonable time to a de- approved interpretation placed on the State, fense. Hamel v. 582 S.W.2d act, new original and intended that the State, (Tex.Cr.App.1979); 428 v. 493 Moore enactment should receive the same con- S.W.2d 845 It was Accordingly, as the old one. struction designed prevent infringement of the regard- of the act is the construction old right accused’s effective new, part ed as a and a different assistance of counsel under the Sixth given only im- interpretation will be Amendment to the United States Constitu- cogent pelling and reasons. I, tion and Article 10 of the Texas Consti- §
tution. well-recognized statutory This is a rule construction. noted,
As the majority has
article 26.-
04(b)
mandatory,
held to
was
and failure
Article
should thus be
given to
comply
interpretation
previously
therewith
constituted reversible
same
26.04(b)
necessity
replaced.
error without
This
which it
State,
legislative
had
prejudice.
obviously
harm
See Pollinzi
intent.
it
v.
ten-day
446
intent that the
(Tex.Cr.App.1976);
legislative
been the
State,
(Tex.
Hayles
preparation period
v.
be accorded
Cr.App.1974);
State,
upon request,
Legislature could
so
v.
Crothers
(Tex.Cr.App.1972);
the statute as
did
Tex.Code
S.W.2d
Stew- worded
(1989).
course,
(Tex.Cr.
28.10(a)
de-
v.
Of
ard
Cr.P.Ann.
any right se-
App.1968)
may generally
v.
waive
Young
See also
752 fendant
(Tex.App.1988),
except
law
of trial
S.W.2d 235
796 cured him
aff'd
(Tex.Cr.App.1990);
by jury
capital felony
Tex.
Claybon
S.W.2d 195
case. See
(Tex.App.1984, pet.
1.14(a) (Supp.1991).
main in unless legislature.” changed by
modified 22.108(b)(1988). Ann.
See Tex.Gov’t Code §