dissenting.
In his second ground of error, appellant asserts error in the trial court’s proceeding to trial less than ten days after the appointment of counsel. Article 26.04(b), Vernon’s Ann.C.C.P. provides:
“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.”
The trial judge signed an order appointing Mr. Shepherd counsel on December 17, 1982, the day of trial. The docket sheet from the court reflects that on December 7, 1982, “D’s attorney unable to attend re-set for Thursday Dec. 9, 1982.” On December 9,1982, the following docket entry appears: “D. appeared in custody—w/counsel Mr. Shepherd....” The record contains no written waiver of the ten (10) days to prepare for trial. There is no proof that the attorney who was unable to appear on December 7, 1982, was in fact trial counsel, Mr. Shepherd. Given the state of the record I cannot say it to be affirmatively shown that court appointed counsel had at least ten days to prepare for trial. Pollin*86zi v. State, 541 S.W.2d 445 (Tex.Crim.App.1976). There was no motion for continuance and no objection was voiced at the time of trial nor was such contention raised on motion for a new trial. However, the Court of Criminal Appeals has held that this contention may be raised for the first time on appeal. Houston v. State, 490 S.W.2d 851, 852 (Tex.Crim.App.1973); Steward v. State, 422 S.W.2d 733 (Tex.Crim.App.1968).
The Court of Criminal Appeals has held that it is the actual preparation time, not the time of formal appointment, that determines whether the defendant has been given the mandatory ten (10) days preparation time for trial as set out in Article 26.04(b). Hamel v. State, 582 S.W.2d 424 (Tex.Crim.App.1979); Henson v. State, 530 S.W.2d 584 (Tex.Crim.App.1975); Moore v. State, 493 S.W.2d 844 (Tex.Crim.App.1973).
In the instant case the record reflects that the trial attorney, Mr. Shepherd appeared for the first time on December 9, 1982 and tried the case on December 17, 1982. Thus the record does not reflect that trial counsel had ten days to prepare for trial.1 The requirement of Article 26.04(b) is mandatory. Moreno v. State, 659 S.W.2d 395 (Tex.Crim.App.1983); Peters v. State, 575 S.W.2d 560 (Tex.Crim.App.1979); Crothers v. State, 480 S.W.2d 642 (Tex.Crim.App.1972).
Article 26.04(b) has not been complied with. I would sustain appellant’s second ground of error and remand the case for a new trial.
. When entering an order appointing counsel, trial courts should recite in that order how long the attorney has represented appellant prior to the appointment.