Prince v. State

500 S.W.2d 533, 1973 Tex. Crim. App. LEXIS 1908

• Court: Court of Criminal Appeals of Texas
• Decided: October 24, 1973
• Docket: No. 46421
• Status: Published

Opinions

OPINION

ODOM, Judge.

This appeal is from a conviction for the offense of attempted robbery by assault. Punishment was assessed by a jury at ten years.

In light of our disposition of this case, a statement of the facts is not necessary.

Appellant contends he was denied effective assistance of counsel in violation of Article 26.04, Vernon’s Ann.C.C.P., and Amendments VI and XIV of the United States Constitution.

Appellant and one Richard Sapp were jointly indicted and tried. Although Attorney Tim Banner was retained by both appellant and Sapp some time prior to trial, Attorney Melvyn Bruder was appointed on the day of trial to represent appellant. Immediately prior to trial, appellant and his newly appointed attorney moved to sever upon an assertion of inconsistent defenses. The court had appointed Bruder out of an abundance of caution to protect against any problems which might arise from continued representation of both appellant and Sapp by one attorney, presenting inconsistent defenses. Such a cautionary measure by the court could be effective only if Bruder were to assume rsponsibility for the defense of appellant and Banner for Sapp. The record reveals that this is precisely what occurred, and although Banner’s name remained on the record as attorney for appellant, he clearly did not participate in his defense.

We commend the trial court for taking the cautionary measure of appointing separate counsel for appellant when the possibility of inconsistent defenses first became apparent,¹ and we recognize that such a cautionary practice can achieve its purpose only where, as here, counsel separately pursue the defenses of their respective clients. However, a reversal of the judgment in this case is required because appellant’s counsel was appointed on the day of trial and the record fails to show a waiver of the ten day time period provided by Article 26.04, V.A.C.C.P., to prepare for trial. Crothers v. State, Tex.Cr.App., 480 S.W.2d 642; Farmer v. State, Tex.Cr.App., 419 S.W.2d 382.

Although the state urges that appellant was represented by Banner as well as Bru-der, that Banner was counsel for appellant long before trial, and that therefore Article 26.04 supra, does not apply, it is clear from the record that Bruder alone conducted the defense of this appellant, and that Banner presented the defense of Sapp only. Cf. Ex parte Barnes, Tex.Cr.App., 478 S.W.2d 547. Henry v. State, Tex.Cr.App., 433 S.W.2d 430, does not control the instant case because the defendant there had the assistance of both attorneys, and not just of the appointed attorney.

Because of our disposition on this ground, we do not reach the other grounds of error raised.

The judgment is reversed and the cause remanded.

1 . See Morales v. State, Tex.Cr.App., 466 S.W.2d 293, concurring opinion on motion for rehearing at page 304.