Holden v. State , 89 Tex. Crim. 628 ( 1921 )

Appellant was convicted in the District Court of Comanche County of assault to murder, and his punishment fixed at confinement in the penitentiary for a period of eight years.

There are no exceptions to the court's charge, and none to the reception or rejection of evidence, and no question is raised as to any other matters save the error of the court in overruling appellant's motion for new trial. In said motion it is set up that appellant had employed counsel, but that about five minutes before the case was called for trial said counsel informed him that he would not appear on appellant's behalf, and that appellant had better throw himself on the mercy of the court. When the case was called, appellant stated to the court that he thought he had an attorney, but such attorney had declined to go on with the case. The court appointed an attorney who assisted appellant in the selection of a jury but who went no further in the trial.

In said motion, in addition to the claim that he had no counsel, appellant raised the question of the admissibility of certain evidence referred to, and the correctness of certain parts of the charge of the court.

It is not obligatory upon the courts of this State to appoint counsel for one accused of crime, unless he be charged with a capital offense, Art. 558, Vernon's C.C.P., or it appear that he is insane, Art. 1021, id., or that he desires an application to be presented for a suspended sentence. Abandonment of appellant's case by his counsel has been held no cause for a new trial. Giles v. State, 68 Tex.Crim. Rep., 151 S.W. Rep., 1043, and unless deprived of counsel by the action of the State, or some outside influence over which he had no control, failure to be represented by attorney will not avail in an effort to have the judgment of conviction set aside. Patton v. State, 62 Tex. Crim. 28; Cobb v. State, 71 Tex.Crim. Rep.; Mullens v. State, 35 Tex.Crim. Rep..

It would ordinarily follow that an enumeration of those instances in which the trial court must appoint counsel, would exclude cases not falling in such enumeration. It does not appear from this record that appellant was insane, and it does appear that he was not charged with a capital offense, and that his plea of suspended sentence was prepared, presented and duly submitted to the jury. It is not even shown why counsel had by appellant prior to the call of his case for trial, refused to proceed therewith. Was it because his fee was not paid? Was it because he had concluded that he could be of no material assistance to appellant? No fraud or misrepresentation is attributed to said counsel, or charged by appellant against the State, nor is anything shown that would intimate or suggest that his failure to have counsel was due to any influence over which he had no control.

We have no discretion given us by our statute in such case. If we had, appellant makes no such showing in his motion for new trial as to make it appear that he was not fairly tried. The statements in evidence made by him to one Hamilton after the shooting, were not shown to have been made to an officer, or to any person who had appellant in custody, or under such circumstances as would make the same inadmissible. In the absence of a showing to the contrary, the presumption of this court necessarily would be in favor of the admissibility of such statements.

This record presents no such case as calls for a reversal, and an affirmance is ordered.

Affirmed.

ON REHEARING. June 22, 1921.