OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
On August 27, 1979, appellant waived indictment and, with his appointed counsel, waived further time to prepare for trial. Appellant then pled guilty to a felony information charging burglary of a habitation. The trial court deferred further proceedings without entering an adjudication of guilt, and placed appellant on probation for five years. See Art.42.12, Sec. 3d, V.A.C.C.P.
On February 26, 1981, the State filed a motion to adjudicate guilt, alleging that appellant had failed to report to his probation officer, pay supervision fees, and to reimburse the county for compensation paid his appointed counsel.
On February 21, 1983, the trial court appointed new counsel to represent appellant. On February 24, the trial court held a hearing to determine whether to proceed to adjudicate guilt. See Art. 42.12, Sec. 3d(b), supra. The trial court found appellant guilty and assessed twenty years.
The Fourteenth Court of Appeals (Houston) affirmed the conviction. 681 S.W.2d 109, No. B14-83-200-CR, delivered March 29, 1984. The Court of Appeals rejected appellant's contentions that the trial court erred in adjudicating guilt and conducting a hearing on punishment without affording counsel ten days to prepare for trial or, in the alternative, adequate time to prepare. We granted appellant's petition for discretionary review to examine these contentions.
We note that appellant raised the contentions for the first time on appeal. Appellant and his counsel proceeded with the hearing on the motion to adjudicate without objection. The record reflects no motion *Page 697 for a postponement or a continuance. There is no claim of injury to appellant and no attempt is made to show harm.
At the hearing, appellant testified in his own behalf. Appellant's mother also testified for him. Counsel elicited appellant's account and attempt at justification of why he had stopped paying his fees and reporting to his probation officer. Moreover, the record of the hearing reflects that the State had offered appellant five years "on Monday," that appellant's counsel had communicated this offer to him, and that appellant had rejected the offer. Counsel engaged in plea negotiations, put on evidence in appellant's behalf, and at no point sought a delay for more time to prepare. The Court of Appeals correctly rejected appellant's contention of inadequate time to prepare.
Appellant also contends that Art. 26.04(b), supra, requires a trial court to afford an indigent and his appointed counsel ten days to prepare for a hearing on a motion to adjudicate guilt. Art. 26.04, supra, provides as follows:
"Art. 26.04. Court Shall Appoint Counsel
"(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 the time by written notice, signed by the counsel and the accused."
Art. 42.12, Sec. 3b, supra, provides that, when an indigent probationer requests counsel's assistance to show cause why his probation should not be revoked, "the court shall appoint counsel in accordance with Articles 26.04 and 26.05 of this Code to present the same."
In Hill v. State, 480 S.W.2d 200 (Tex.Cr.App. 1971), this Court wrote:
". . . [T]he plain meaning of Article 42.12 is that the provisions of Article 26.04 paragraph (a) shall be followed when the court appoints counsel. However, nothing in Article 42.12 purports to incorporate Article 26.04 paragraph (b), which provides for the ten day preparation requirement. To the contrary, all such procedure is governed by Section 8 of Article 42.12, which does not contain such a provision.
"We therefore hold that, absent a showing of harm, nothing in Article 42.12, V.A.C.C.P., or the United States Constitution requires a preparation period of ten days prior to a revocation hearing."
In Hill, the Court was construing Section 3b of Art. 42.12. Sec. 3b governs, by its terms, probation revocations "[w]here probation [was] recommended by the verdict of a jury as provided for in Sec. 3a [of Art. 42.12] . . . " The procedure in the instant case is governed by Sec. 3d, which nowhere mentions Art. 26.04.
We have noted elsewhere, in connection with deferred adjudication of misdemeanors, that the probationer has a right to counsel in a proceeding to adjudicate guilt under Art. 42.13, Sec. 3d(b), supra. See Thompson v. State, 626 S.W.2d 750 (Tex.Cr.App. 1981). Yet neither the misdemeanor nor the felony deferred adjudication statute requires the trial court to appoint counsel in accordance with Art. 26.04(b).
The judgment of the Court of Appeals is affirmed.
ONION, P.J., and CLINTON, J., concur in the result.