Annulment of the judgment is sought upon the proposition that the selection of the members of the grand jury which found the indictment against the appellant was illegal in that the grand jury was selected by five jury commissioners. In the Act of the Legislature of 1876, it was declared that the district judge shall, at each term, appoint three persons to perform the duties of jury commissioners. It was also declared that the jury commissioners shall select sixteen men from whom the members of the grand jury shall be selected. See R. S., 1879, art. 3017. The article mentioned has been carried into the civil statutes through several revisions, including that of 1925. See R. S., 1925, art. 2104. By chapter 37, Acts of the 41st Legislature (1929), Reg. Sess. (Vernon's Ann. Civ. St., art. 2104 note), the statute was amended so as to declare that there should be appointed not less than three nor more than five jury commissioners. The provisions of the Act of 1876 were, by the codifiers, carried into the Code of Criminal Procedure, 1925, in arts. 333 and 338.
The grand jury was selected before the offense was committed. At the time of the indictment the appellant was in jail charged with an offense. He was privileged to object to trial upon the indictment found and to move the trial court to set the indictment aside and to have adverse action on the trial passed upon by the appellant court. See Davis *Page 489 v. State, 105 Tex.Crim. Rep., 288 S.W. 456. By failing to oppose his trial upon the indictment and to bring up a record showing the action of the court thereon, he waived any irregularity in the indictment which the law would permit to be waived. See Gentry v. State, 105 Tex.Crim. Rep.,290 S.W. 541. That is to say, unless the formation of the grand jury was void, its action in finding the indictment is not subject to attack in any proceeding such as the present. See Ex parte Clemmings, 90 Tex.Crim. Rep.; Bryant v. State,97 Tex. Crim. 11; King v. State, 90 Tex.Crim. Rep.; Russell v. State, 92 Tex.Crim. Rep.; Buchanan v. State, 107 Tex.Crim. Rep.. The statutes governing the subject and the judicial announcements are many and uniform to the point stated. They will be found reviewed and collated in the opinion of this court in the case of Powell v. State,99 Tex. Crim. 276, 269 S.W. 443. We are not to be understood as intimating that if the attack upon the indictment had been made at the proper time and preserved in the record it should have been sustained. It is not clear that there is real conflict in the provisions of the statute touching the jury commission, or that if there be conflict, that the selection of the grand jury by a commission composed of five men, as provided by chapter 37, supra, would constitute more than an irregularity which might be waived.
Many months after the trial and after the record had reached this court, the appellant, for the first time, attacked the validity of his conviction upon the ground that upon his trial he was not represented by an attorney. Such matter is not upon any recital in the record of the trial court but it is upon his affidavit that the appellant relies. From the record it appears that the appellant was represented upon his trial by two attorneys, namely, H. P. Shead and J. P. Willis. In his affidavit it is claimed that he employed Shead but did not employ Willis. It is also stated in the affidavit, accompanied by a certificate from the clerk of the district court of Tarrant County, that by a judgment of that court Shead's privilege of practicing law in the courts of the state had been suspended. That fact was unknown to the appellant at the time of his trial. Counter-affidavits were filed showing that the judge who presided at the trial was not aware of the suspension; also that before the judge was aware that the appellant had employed attorneys, the court offered to appoint an attorney to represent the appellant but the appellant declined, stating that he had already employed an attorney.
In article 1, section 10, of the Const of Texas, it is said: "In all criminal prosecutions the accused * * * shall have the right of being heard by himself or counsel, or both."
In article 494, C. C. P., 1925, it is said: "When the accused is brought into court for the purpose of being arraigned, if it appear that *Page 490 he has no counsel and is too poor to employ counsel, the court shall appoint one or more practicing attorneys to defend him."
In article 11, C. C. P., 1925, it is said: "The defendant in a criminal prosecution for any offense may waive any right secured to him by law, except the right of trial by jury in a felony case."
Except in rare cases involving its jurisdiction, the authority of the Court of Criminal Appeals is controlled by the record made in the trial court and presented on appeal, and cannot consider attacks upon the procedure presented by affidavit in the appellate court. See Const. of Texas, art. 5, sec. 5; also Vance v. State, 34 Tex.Crim. Rep.; Craddock v. State, 15 Texas App., 641. It may be said, however, that if the court were authorized to consider the affidavits mentioned, the matter therein would be far from conclusive against the judgment. The decisions of this court and others are to the effect that the accused in a capital case may waive the appointment of counsel. See Compton v. State, 67 Tex. Crim. 15; James v. State, 196 P. 1045; Ruling Case Law, vol. 8, p. 84, sec. 40. See also Corpus Juris, vol. 16, p. 821, sec. 2077, note 23 and cases collated.
In this state the obligation to appoint counsel is predicated upon the showing that the accused was too poor to employ counsel, a condition which, in the present instance, is negatived by the fact, as shown by the affidavit, that the appellant did employ counsel, though he claims as to one of those who represented him he made the mistake of employing one whose license to practice law in Texas had been suspended. Touching the other by whom he was represented, he presents no impeachment; nor is it contended that his defenses were not properly presented, or that in the conduct of his case there was either misbeheavior, neglect or incompetency upon the part of those by whom he was represented.
Counsel representing the appellant upon this appeal have been zealous and energetic, and have presented brief and argument showing research and thought. In the light of the brief, motion and argument, the entire record has been reviewed. We are confirmed in the opinion that the announcements made in the original opinion are sound and that the matters urged in the motion for rehearing and discussed in the present opinion are not such as to require or authorize a reversal of the judgment of conviction.
The motion is overruled.
Overruled.
ON REQUEST FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.