Marin v. State

OPINION ON APPELLANTS PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

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, 801 S.W.2d 944 (Tex.App.—Austin 1990). However, we vacated the judgment of the Court of Appeals and remanded the case to that Court. Marin v. State, 851 S.W.2d 275 (Tex.Cr.App.1993). The Court of Appeals again affirmed. Marin v. State, 862 S.W.2d 183 (Tex.App.—Austin 1993). We granted the instant petition for discretionary review to determine whether an appointed attorney who replaces the originally appointed counsel is entitled to ten days to prepare for trial under Tex.Code Crim.Proc.Ann. art. 1.051(e).1 We will reverse.

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, 801 S.W.2d at 946. However, we held art. 1.051 provided for a waivable right only and Rule 52(a) did not apply to rights which were waivable; thus the failure to comply with art. 1.051(e) could be raised for the first time on appeal. Marin v. State, 851 S.W.2d *269at 280. Additionally, we held a violation of art. 1.051(e) was not subject to a harm analysis, Id. at 281, and remanded to the Court of Appeals. On remand, the Court of Appeals affirmed, holding art. 1.051(e) does not apply to subsequently appointed counsel. Marin v. State, 862 S.W.2d at 185-186 (citing Henry v. State, 433 S.W.2d 430 (Tex.Cr.App.1968); and, Roney v. State, 632 S.W.2d 598 (Tex.Cr.App.1982)).

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 well 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).2

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 *270the 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, 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 dearly 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 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.)?

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 Tex.Code Crim.Proc.Ann. art. 26.04 (Vernon’s 1965). In Farmer v. State, 419 S.W.2d 382, 383 (Tex.Cr.App.1967), we held it was error to deny the appointed attorney’s request for ten days preparation for trial when he was appointed seven days before trial. And, in Houston v. State, 490 S.W.2d 851, 852 (Tex.Cr.App.1973), we held it was error to force the defendant to trial five days after the appointment of counsel because Tex.Code Crim.Proc.Ann. art. 26.04(b) required ten days preparation time.

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 trial. 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 *271no error is presented by the action of the trial judge.

7d.4

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, 521 S.W.2d 267, 270 (Tex.Cr.App.1975); and, Hayles v. State, 507 S.W.2d 213, 214-215 (Tex.Cr.App.1974) (trial preparation was not affected by re-indictment). But see, Young v. State, 752 S.W.2d 235 (Tex.App.—Fort Worth, 1988) (reversible error when counsel not provided statutory preparation time to prepare for new enhancement allegations).5

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 (Tex.Cr.App.1968), 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 (Tex.Cr.App.1982), 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 con*272strued, 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.” Tex.Gov’t Code Ann. § 311.023(3); and, Grunsfeld v. State, 843 S.W.2d 521, 523 (Tex.Cr.App.1992).

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, 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 compliance because the minimum statutory preparation time is mandatory. See, Ex parte Dowden, 408 S.W.2d 512 (Tex.Cr.App.1966); Farmer v. State, 419 S.W.2d 382, 383 (Tex.Cr.App.1967); Crothers v. State, 480 S.W.2d 642, 643 (Tex.Cr.App.1972); and, Houston v. State, 490 S.W.2d 851, 852 (Tex.Cr.App.1973).

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.

. 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, 626 S.W.2d 854, 863 (Tex.App.—San Antonio 1982) ("[I]t is apparent that the ten day preparation period refers to the actual preparation time and not the time of formal appointment.”); Sheppard v. State, 634 S.W.2d 953, 955 (Tex.App.—Fort Worth 1982); and, Johnson v. State, 653 S.W.2d 324, 328 (Tex.App.—San Antonio 1983).3

.In Johnson v. State, 653 S.W.2d 324 (Tex.App.—San Antonio, 1983 (pet. grt'd.), aff'd 760 S.W.2d 277 (Tex.Cr.App.1988), the defendant sought to proceed pro se and retained counsel attempted to withdraw because the defendant asked counsel to engage in unethical conduct. The trial judge permitted the defendant to proceed pro se but required counsel to remain present throughout the trial in an advisory capacity. Id., 653 S.W.2d at 327-328. On appeal, the defendant contended counsel was appointed but was not allowed the mandatory preparation time under art. 26.04. The Court of Appeals rejected the defendant's contention, holding the change in the attorney’s status was not a new appointment necessitating ten days preparation. Further, the Court stated:

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„ 653 S.W.2d at 328.

. Additionally, in Lujan, 626 S.W.2d 854, 862-863 (Tex.App.—San Antonio 1982), the Court held appointed counsel was not entitled to additional preparation time when the first trial ended in a mistrial and the trial judge immediately began the re-trial.

. Similarly, in Sheppard v. State, 634 S.W.2d 953, 955 (Tex.App. — Fort Worth, 1982), the Court found no error despite only nine days having elapsed between formal appointment of defendant’s co-counsel and trial because the defendant’s other trial counsel had been appointed for more than two months prior to trial. In Oliver v. State, 731 S.W.2d 149, 157 (Tex.App. — Fort Worth, 1987), the defendant contended his third appointed counsel was entitled to ten days to prepare. The Court found no error because the defendant had two other counsel, one of whom had been appointed for more than two years prior to trial.