concurring.
I concur in Justice Jones’s view that we may not reverse the judgment below based upon the requirement, in Tex.Code Cr.P. Ann. art. 1.051(e) (Supp.1991), that “appointed counsel” must have 10 days preparation time before a proceeding begins. My reasons are two: (1) the appellate record does not show that Jezek, Marin’s attorney, was an “appointed counsel” within the meaning of the statute; and (2) even if she was, the record is undisputed that she replaced a previous “appointed counsel” who was given more than 10 days preparation time. Nothing in art. 1.051 or the cases construing it implies that in a ease like the present we must reverse the judgment because harm is presumed and the defendant need not complain in the trial court regarding a want of 10 days preparation time.
THE STATUTE
The provisions of art. 1.051 are obviously designed to effectuate a criminal defendant’s constitutional right to counsel, with particular reference to and arrangements for an “appointed counsel” in the case of “indigent” defendants. Whether indigent or not, all criminal defendants are given, in paragraph (a), the statutory “right to consult in private with counsel sufficiently in advance of a proceeding to allow adequate preparation for the proceeding.” The remaining paragraphs deal with the matter of “appointed counsel” for indigent defendants. Paragraph (b) defines “indigent” as meaning “a person who is not financially able to employ counsel.”
Paragraph (c) declares that “[a]n indigent defendant is entitled to have an attorney appointed to represent him in” cases like the present case; and “[i]f an indigent defendant is entitled to and requests appointed counsel, the court shall appoint counsel to represent the defendant as soon as possible.”
Paragraph (e) states 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.” A similar provision in former art. 26.04 was construed to mean that unless “appointed counsel” received the required 10 days preparation time (irrespective of the date of formal appointment) or a waiver was shown, the appellate court must sustain on appeal a defendant’s point of error complaining in that regard. Henson v. State, 530 S.W.2d 584, 585 (Tex.Cr.App.1975); Crothers v. State, 480 S.W.2d 642, 643 (Tex.Cr.App.1972).
The text of art. 1.051 is quite clear that the 10 days preparation time applies only to “appointed counsel.” Former art. 26.04 was not less clear in this regard. Schafer v. State, 436 S.W.2d 352, 354 (Tex.Cr.App.1969). Moreover, a complaint regarding the 10 days preparation time could be entertained only if the appellate record showed affirmatively that “counsel was in fact appointed.” Harville v. State, 591 S.W.2d 864, 869 (Tex.Cr.App.1980); see also Bowers v. State, 570 S.W.2d 929, 931 *950(Tex.Cr.App.1978) (“This provision of the Code only applies to appointed counsel. There is no showing in this record that appellant’s trial counsel was appointed for this trial.”).
WHETHER THE RECORD SHOWS AFFIRMATIVELY THAT JEZEK WAS MARIN’S “APPOINTED COUNSEL”
The record shows that on February 16, 1988, Marin applied to the district court requesting an appointment of counsel to represent him because he was without means to employ counsel; and on the same day the court appointed John Gauntt in an order signed by the judge, based expressly upon Marin’s affidavit that he was without counsel and too poor to employ counsel. Later in February and in March 1988, Gauntt filed various motions in Marin’s behalf and obtained relief thereon. Trial was set for May 16, 1988. Until this point, art. 1.051 had the precise effect it was intended to have in the ordinary case in which an indigent defendant has “appointed counsel.”
On May 10, 1988, however, Gauntt filed the following motion:
* •* * * * #
Now comes John Gauntt ... and moves the Court to substitute in his place and stead as the Attorney for Defendant:
Fancy H. Jezek
P.O. Box 10,310
Killeen, TX 76547-0310
* * * * sfc *
On the same day, the court signed and the clerk filed the following order on Gauntt’s motion:
* * ⅜ * * sfc
On this the 10th day of May, 1988, it is ordered that the name of Fancy H. Jez-ek, be substituted as Attorney for Defendant in the place and stead of John Gauntt.
******
After May 10, 1988, Jezek represented Marin under the order of that date. She filed on the day of trial several motions, announced ready for trial on May 16, 1988, and conducted the trial thereafter. She did not move for continuance on any ground, and did not complain in the trial court that she was not given adequate time to prepare for any aspect of the case. If Jezek was an “appointed counsel” within the meaning of art. 1.051, she was arguably entitled to 10 days preparation time under paragraph (e) of that statute, and arguably entitled to reversal on appeal based upon the construction given by the Court of Criminal Appeals to the antecedent art. 26.04.
The dissenting opinion infers, from circumstantial evidence gleaned from the appellate record, that Jezek was an “appointed counsel”: (1) Jezek’s predecessor Gauntt was “appointed” as shown in the record, based upon Marin’s application and indigency; (2) the docket sheet bears the notation “Jezek apt.”; and (3) Marin is represented on appeal by “appointed counsel.” Even if our appellate authority included a power to make original fact determinations of this character, I believe it is not what the Court of Criminal Appeals had in mind when it held in Bowers “that there must be a showing that counsel was in fact appointed in order to find a violation of Art. 26.04(b) ...” Harville, 591 S.W.2d at 869. Bowers implies that an explicit showing of an appointment of counsel is required; there the appearance of a pauper’s oath in the appellate record was deemed insufficient to support an inference that counsel was appointed under art. 26.-04. Bowers, 570 S.W.2d at 931. Curiously, the Bowers court was not content to rest its holding on that basis alone, for the court also pointed out that Bowers’s counsel had “filed no motions for continuance” and had represented at “the pre-trial hearing that he had prior familiarity with this cause and nowhere does there appear to be an allegation of surprise or harm.” There are, however, more important reasons that preclude Jezek’s status as “appointed counsel” within the meaning of art. 1.051.
*951It is only a gratuitous assumption that Jezek was appointed by the trial court pursuant to art. 1.051. It is, moreover, an assumption contrary to the sense of that statute and the record in this case. The statute contemplates counsel chosen by the trial court and ordered to represent a defendant who has no counsel at all. In contrast, Jezek was chosen by Marin’s attorney Gauntt and Marin had counsel (Gauntt) at the time in question. If the present case is to fall within the scope of art. 1.051 it can only be by an expansion of that statute through interpretation; it cannot possibly be because the case fits literally within the circumstances in which appointments are made under art. 1.051.
I would hold Jezek was not an “appointed counsel” within the meaning of art. 1.051. The record does not show affirmatively that she was appointed to represent Marin under the provisions of that statute; instead, the record shows affirmatively that Gauntt was so appointed and that Jez-ek was substituted for Gauntt on a motion filed in Marin’s behalf at a time and for reasons that we must presume were judged by Gauntt and Marin to be in the latter’s best interest. The record shows affirmatively that Jezek was selected by Gauntt and Marin, and not by the court as under art. 1.051; and it shows affirmatively that Marin had counsel when Jezek became his lawyer, as opposed to the situation in which a defendant has no counsel at all — the only circumstance in which art. 1.051 authorizes the trial court to choose and appoint counsel for him under that statute.
ASSUMING JEZEK WAS AN “APPOINTED COUNSEL” UNDER ART. 1.051, MUST WE REVERSE THE JUDGMENT BELOW ON A THEORY OF PRESUMED HARM AND ABSENT A COMPLAINT IN THE TRIAL COURT RELATIVE TO PREPARATION TIME?
The circumstances of the present case do not, for the reasons given previously, fit into the literal scope of and circumstances contemplated in art. 1.051. That statute contemplates the ordinary case in which a single lawyer is appointed “as soon as possible” to represent a criminal defendant, at his request and on his showing of indigen-cy, and that lawyer then represents the defendant throughout the course of the proceeding. The statute does not provide expressly for a case in which one “appointed counsel” succeeds another within 10 days of a “proceeding,” the first having had ample preparation time by reason of his appointment several months in advance of the proceeding. Nor does the statute provide expressly for a criminal defendant to designate his own “appointed counsel” in a motion requesting the trial court to substitute that particular lawyer for the “appointed counsel” chosen previously by the trial court and ordered to represent the defendant. Shall we then construe art. 1.051(e) as applying in full rigor in such circumstances, so that we must reverse the judgment below when the defendant claims on appeal that his lawyer did not have the 10 days preparation time guaranteed by that statute, without a showing of harm and without any necessity for the defendant to raise the matter first in the trial court?
I would hold that we may not construe art. 1.051(e) in the manner suggested. Nothing in the text or the statutory purpose gives rise to an implication that the statute should apply in that manner in the present case. Neither the appellant nor the dissenting opinion suggests a reason for so extending the scope of the statute by implication; they are content to rest opaquely on the literal terms of the statute when the circumstances of this case obviously do not come within those terms. Conversely, however, there are rather obvious reasons against extending the statute by implication so that it applies in the manner suggested:
1. When a criminal defendants moves, as in the present case, to substitute a lawyer of his own choosing for the “appointed counsel” designated previously by the trial *952court under art. 1.051, the defendant thereby invokes his constitutional right to counsel of his own choosing; and the trial court might infringe that right by overruling the motion.
2. Not only is the defendant’s right to choose his own counsel invoked by such a motion; his right to control his defense is also involved in the matter. When the defendant files his motion within the 10 days before the proceeding begins, he presumably has determined in consultation with his initial “appointed counsel” that a substitution of counsel and the timing of the motion were in his best interest. This is especially implied when no request is made for a continuance and the 10-day statutory period for preparation is not invoked in the trial court. Moreover, the defendant may rely upon the ethical considerations that prohibit the new counsel from accepting representation unless he is sufficiently prepared to render competent service, and prevent the previous counsel from withdrawing if doing so would prejudice the defendant’s representation.
It seems to me the better view, in such a case, simply to “tack” the times for preparation insofar as applying art. 1.051(e) is concerned, absent some complaint in the trial court that the second “appointed” attorney did indeed lack sufficient time to prepare for the proceeding. In other words, I would take the view that the trial court’s regular appointment of the first counsel satisfied the statute; any complaint by the second appointed counsel that he lacked adequate preparation time would have to be made in the trial court and come within the ordinary appellate rules about harm and preservation of error as these are outlined in the opinion of Justice Jones.