Foster v. State , 170 Tex. Crim. 61 ( 1960 )

ON APPELLANT’S motion for rehearing

WOODLEY, Judge

It is contented for the first time on motion for rehearing that the conviction should be reversed because the record on appeal does not show a compliance with Art. 494 V.A.C.C.P. (as amended in 1959) which provides that counsel appointed by the court pursuant to the provisions of said article “shall have ten (10) days to prepare for trial, unless such time be waived in writing by said attorneys and the accused.”

Certified copies (photostats) bearing the signatures of appellant and Ross Hardin, his counsel, have been furnished us by both counsel for appellant and counsel for the state which recite that the court appointed Ross Hardin as counsel to represent the defendant “and the said defendant and counsel hereby waive the 10 days in which to prepare for trial, and agree that said cause may be tried on this date, to wit August 24, 1959, or any day hereafter.”

This waiver appears to be a compliance with the statute. Art. 494 V.A.C.C.P. as amended does not require that the waiver in writing be filed but only that it be signed by the accused and his counsel. Whether it was filed after the trial began, or whether it was included in the transcript on appeal is not material.

Appellant’s motion for rehearing is overruled.