This is a conviction for burglary, with punishment assessed at two years in the penitentiary.
The record in this case affirmatively reflects that this appellant, an eighteen-year-old boy, was not represented by counsel either of his own choosing or by appointment by the court. There is an absence of any suggestion in this case that the trial court tendered or offered to appoint counsel for appellant, or that appellant was financially able to employ counsel. There is an absence of any evidence that appellant possessed sufficient education or was mentally alert to the point of being able to represent himself upon the trial of this case.
The rule requiring representation by counsel in the trial of an ordinary felony case in a state court appears to have had its beginning over seventeen years ago in the case of Betts v. Brady, 316 U.S. 455. The latest expression from the United States Supreme Court attesting the rule is found in Cash v. Culver, decided February 24, 1959, advance publication. The cases touching the question since Betts v. Brady, supra, will be found listed in a footnote in Cash v. Sulver, supra. We will not here set them out.
*276In Parsons v. State, 153 Texas Cr. Rep. 157, 218 S.W. 2d 202, this court recognized the rule stated, and followed and applied the rule in Johnson v. State, 157 Texas Cr. Rep. 564, 251 S.W. 2d 739, by reversing the conviction because the accused was not represented by counsel.
It appears, therefore, that it is now the settled law of this state that the facts and circumstances of each case will determine whether due process is violated by failure to appoint counsel for one on trial for an ordinary felony in a state court.
Among the various factors entering into a determination of the question is that which is referred to as “the complexity of the proceedings.” Cash v. Culver, supra. See, also, Rice v. Olson, 324 U.S. 786, and Gibbs v. Burke, 337 S.U. 773.
The “complexity of the proceedings” is patently applicable in the instant care, for therein is a serious question as to the sufficiency of the evidence to support the conviction, which can be justified, only by the use of the written confession of the appellant.
The complexity of the proceedings is further demonstrated in the fact that the state used in evidence the written confession of James Otis Williams after he had repudiated it and denied that portion thereof which inculpated appellant in the crime.
The witness Williams was an accomplice, and under the laws of this state the trial court was under the burden of requiring corroboration of his testimony.
The trial court appears to have entertained some question relative to the admission in evidence of the written confession of the accomplice Williams which was inculpatory of the appellant, for the charge reads that his confession is expressly limited to the jury’s consideration.
“for the sole and only purpose of bearing upon, if it does, the question of whether or not the statement of the defendant in writing, State’s Exhibit No. 2, was freely and voluntarily given; and you shall not consider it for any purpose as bearing upon, if it does, the question of guilt or innocence of the defendant, or as any circumstance to show or tend to show his connection, if any, of the offense charged herein.”
So, in effect, the trial court told the jury that Williams’ *277confession could be utilized for the purpose of determining the voluntariness of appellant’s confession.
A more complex situation could hardly arise in the trial of a criminal case, for the hearsay rule was violated in the admission oí -the confession of the State’s Witness Williams, who repudiated the truth of the confession.
In addition, the jury was limited to a consideration of Williams’ confession for a purpose which could not have any probative value — that is, to determine whether appellant voluntarily made the confession which the state used against him.
To all those proceedings no objection was urged by the appellant.
Giving effect to the decisions of the Supreme Court of the United States and the rule of law announced therein, we are constrained to agree that under the facts here presented this conviction must be reversed, because of the failure on the part of the trial court to appoint counsel for the appellant.
While we have no statute in this state which requires the appointment of counsel for one on trial for an ordinary felony, the Supreme Court of the United States in a series of decisions has judicially determined and held that failure to appoint counsel for one on trial in a state court for an ordinary felony may constitute a denial of due process, under the Fourteenth Amendment to the Constitution of the United States.
Attention is also directed to the fact that under the statute law of this state counsel should have been appointed to represent this appellant.
This being a burglary case, the provisions of the suspended-sentence law were applicable. Art. 776, C.C.P. Under that statute it is the mandatory duty of a trial court in such cases “when the defendant has no counsel * * *” to “inform the defendant of his right to make such application [for suspended sentence], and the court shall appoint counsel to prepare and present same if desired by defendant.”
Failure to comply with that mandate constitutes reversible error. Crowell v. State, 161 Texas Cr. Rep. 584, 279 S.W. 2d 822; Diaz v. State, 138 Texas Cr. Rep. 1, 133 S.W. 2d 585; and Arsola v. State, 138 Texas Cr. Rep. 1, 133 S.W. 2d 585; and Noble v. State, 112 Texas Cr. Rep. 541, 17 S.W. 2d 1063.
*278While it is true that when appellant was advised of his right to make application for suspended sentence he declined to do so, such advice from the court was not sufficient, because the statute requires that counsel be appointed “to prepare and present the same if desired by defendant.”
Noble v. State, supra, is direct authority supporting the proposition that the statement of the trial court was not a sufficient compliance with the statute and that nothing short of appointment of counsel will satisfy the statutory requirements. In that case the trial court “ ‘took special pains to advise the defendant of his right to file an application for suspended sentence,’ ” which is exactly what the trial court did in the instant case.
In the Noble case, however, the trial court went further and “ ‘instructed the Clerk to prepare the application for the defendant to sign’ ” and in addition thereto the district attorney interrogated appellant as to whether he was eligible for a suspended sentence. There appeared to be no legal impediment to the granting of a suspended sentence in that case.
No legal impediment is shown to have existed in this case to the granting of a suspended sentence.
The Noble case was reversed for the failure to appoint counsel, so that case is direct authority requiring a reversal of the instant case.
For the reasons stated, the judgment is reversed and the cause is remanded.