Green v. State

681 S.W.2d 84, 1984 Tex. App. LEXIS 5025

Opinions

PAUL PRESSLER, Justice.

Appellant waived a jury trial and entered a guilty plea to the charge of escape. He plead not true to the charge of habitual offender. The court found the enhancement allegations true and assessed punishment at confinement for life.

In his first ground of error, appellant argues that the state failed to prove that his second prior offense was committed subsequent to January 28, 1963, the date of his conviction on his first prior offense. Included in the appellant’s pen packet, properly certified and admitted into evidence for enhancement purposes, are waivers relating to his second prior offense. The waiver signed by appellant, clearly established that he committed this second offense on November 16,1965. Appellant’s first ground of error is overruled.

In his second ground of error, appellant alleges that the trial court erred in proceeding to trial less than ten days after the appointment of his counsel as required by TEX.CODE CRIM.PROC.ANN. art. 26.-04(b) (Vernon 1981). It is true that the trial judge signed the order appointing Mr. Shepherd counsel for appellant on December 17, 1982, the day of trial. However, the December 7, 1982 docket sheet entry states: “D’s attorney unable to attend, reset for Thursday Dec. 9, 1982.” The December 9, 1982 docket sheet entry states: “D. appeared in custody—w/counsel Mr. Shepherd_” The record shows appellant had counsel on December 7th. Mr. Shepherd is designated by name as the counsel who appeared with him on December 9th. There is no suggestion in the record that his counsel on December 7th was different from his counsel on December 9th. There is no record of substitution of counsel or any request to delay trial because of a substitution of counsel between December 7th and 9th. The state has clearly sustained its burden in establishing a fact situation where even the casual observer can see easily that the requirement was properly met. The requirement of Article 26.04(b) has been followed and appellant's second ground of error is overruled.

In his third ground of error, appellant contends that the state did not prove that he was “under arrest” at the time of the escape as required by TEX.PENAL CODE ANN. § 38.07(c)(1) (Vernon 1974). The state offered a stipulation of evidence signed by appellant which stated in part that he did “knowingly and intentionally escape from the custody of T.A. Maddox, a peace officer, after I had been arrested ...” (emphasis added). Appellant contends the phrase “after I had been arrested” does not meet the requirement of showing that he was “under arrest.” We disagree. While the language of the stipulation does not track the statute, the language is sufficient to satisfy the statutory requirements. Garcia v. State, 537 S.W.2d 930, 932-933 (Tex.Crim.App.1976). Appellant’s third ground of error is overruled.

The judgment is affirmed.