Marin v. State , 1990 Tex. App. LEXIS 3010 ( 1990 )

JONES, Justice.

Appellant was convicted of conspiracy with the intent to commit the offense of aggravated delivery of cocaine over 400 grams. See Tex.Pen.Code Ann. § 15.02 (1974) and 1983 Tex.Gen.Laws, ch. 425, § 6, at 2374 [Tex.Rev.Civ.Stat.Ann. art. 4476-15, § 4.03(c) (Texas Controlled Substances Act) since repealed].¹ Following the jury’s verdict, the trial court assessed appellant's punishment at twenty-five (25) years’ imprisonment.

In point of error one, appellant advances the contention that the trial court “erred in not allowing court-appointed attorney ten days to prepare for trial, there being no written or oral waiver of the right accorded by the statute.” See Tex.Code Cr.P.Ann. art. 1.051(e) (Supp.1991).

The indictment was returned on January 27, 1988. Retained counsel Potter and Thompson were permitted to withdraw on February 16, 1988. On the same date the trial court appointed John Gauntt to represent the appellant, upon the filing of a pauper’s oath. On February 26, 1988, a trial date of May 16, 1988, was set. On May 10, 1988, attorney Gauntt filed a “Motion to Substitute Attorney For Defendant” requesting that Fancy Jezek, who also signed the motion, be substituted as attorney for appellant. The court granted the motion on the same date. The trial commenced on May 16, 1988. Jezek did not request a continuance or object in any way to being substituted as appointed counsel less than ten days before trial. She announced “ready” when the case was called and proceeded to represent appellant throughout the trial. Following the conviction, appellant did not file a motion for new trial. Yet another court-appointed counsel on appeal now urges that the trial court violated article 1.051(e) because there was no waiver, written or oral, of the ten-day preparation period.

In 1987, article 1.051 was added to the Code of Criminal Procedure. 1987 Tex. Gen.Laws, ch. 979, § 1, at 3321, effective September 1, 1987. Section (e) thereof provides in part:

An appointed counsel is entitled to 10 days to prepare for a proceeding but may waive the preparation time with the consent of the defendant in writing or on the record in open court....

Tex.Code Cr.P.Ann. art. 1.051(e) (Supp. 1991). This provision replaced former subsection (b) of article 26.04 of the 1965 Code of Criminal Procedure, which contained similar language.²

The purpose of the statute was to guarantee an indigent defendant that he and his appointed counsel would have a reasonable time to prepare a defense. Hamel v. State, 582 S.W.2d 424, 428 (Tex.Cr.App.1979). The former statute was held to be mandatory, and failure to comply therewith was held to constitute reversible error without the necessity of showing harm or prejudice. See Peters v. State, 575 S.W.2d 560, 561 (Tex.Cr.App.1979). It was also held that a violation of the statute could be raised for the first time on direct appeal. Henson v. State, 530 S.W.2d 584, 585 (Tex.Cr.App.1975); Houston v. State, 490 S.W.2d 851, 852 (Tex.Cr.App.1973).

We recognize that former article 26.04(b) was mandatory and that a violation thereof probably would have called for reversal without any inquiry as to harm and without having been objected to or otherwise brought to the attention of the trial court. We also recognize that the relevant provisions of former article 26.04(b) have been brought forward in article 1.051(e). However, we conclude that the adoption of the Texas Rules of Appellate Procedure in 1986 changed prior law.

We hold that, under the circumstances described above, appellant waived any error regarding article 1.051(e). See Tex. Code Cr.P.Ann. art. 1.14(a) (Supp.1991). We do not suggest that appellant waived his right for his appointed attorney to have ten days preparation time before trial. The only way that right could have been waived was to have the consent of the defendant in writing or on the record in open court, as set forth in article 1.051(e). The right that appellant did waive, however, was his right to complain on appeal of the trial court’s failure to allow appointed counsel the full ten days. The waiver of that right is not governed by article 1.051(e), but by Rule 52(a) of the Texas Rules of Appellate Procedure.

Rule 52(a) provides:

In order to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling he desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party’s request, objection or motion.

Tex.R.App.P.Ann. 52(a) (Pamph. 1990). The only relevant limitations on the rule-making power of the Court of Criminal Appeals are that rules “may not abridge, enlarge, or modify the substantive rights of a litigant.” Tex. Gov’t Code Ann. § 22.108(a) (1988).

Rule 52(a) is plainly a rule of procedure and does not affect the substantive rights of a criminal defendant. A defendant still has the right, pursuant to article 1.051(e), to ten days between appointment of counsel and trial. The only impact of Rule 52(a) is that if the defendant wishes to complain on appeal about an abridgement of that right by the trial court, he must have “presented to the trial court a timely request, objection or motion” and obtained a ruling thereon. Because it relates to procedure only, Rule 52(a) does not violate section 22.108 of the Government Code. Clearly, such a rule is within the power of the Court of Criminal Appeals to promulgate. The only remaining question is simply whether Rule 52(a) means what it says. We hold that it does.

In both Sodipo v. State, No. 1390-88 (Tex.Cr.App., September 12, 1990) (not yet reported) (State’s motion for rehearing granted November 28, 1990), and Young v. State, 796 S.W.2d 195 (Tex.Cr.App.1990), the alleged error was very clearly preserved by motion or objection. The older cases cited by the dissent, holding that such a complaint could be raised for the first time on appeal, were all decided before adoption of the Rules of Appellate Procedure in 1986.

Such a complete failure to present the issue to the trial court might be said to put this case in the posture of a collateral attack as to that issue. Even if this were so, the Court of Criminal Appeals has long held that in a collateral attack based on violation of the ten-day requirement, the party attacking the conviction must show harm. See Ex Parte Reed, 610 S.W.2d 495, 499 (Tex.Cr.App.1981); Sutton v. State, 519 S.W.2d 422, 425-26 (Tex.Cr.App.1975); Ex Parte Meadows, 418 S.W.2d 666, 668 (Tex.Cr.App.1967). In the present case, there has not been even an allegation of harm, much less a showing of harm. While we do not hold that such a “collateral attack” analysis must be applied where error is not preserved for appellate review, the plain language of Rule 52(a) would demand that it be given at least that much effect, in which event the result of the present appeal would be the same.

Moreover, even if a violation of article 1.051(e) could be raised for the first time on appeal, another Rule of Appellate Procedure may affect this case. Rule 81(b)(2) provides as follows:

If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.

Tex.R.App.P.Ann. 81(b)(2) (Pamph.1990) (emphasis added). Since the adoption of Rule 81(b)(2) in 1986, there appears to have been a shift away from the concept of granting reversals where no harm is shown, even if the statute involved is mandatory. Cf. Herring v. State, 752 S.W.2d 169, 172-74 (Tex.App.1988), remanded on other grounds, 758 S.W.2d 283 (Tex.Cr.App.1988); Moncivaiz v. State, 752 S.W.2d 722, 725 (Tex.App.1988) (Nye, C.J., dissenting), rev’d, 778 S.W.2d 866 (Tex.Cr.App.1989); Mason v. State, 740 S.W.2d 517, 519-20 (Tex.App.1987, pet. ref’d). While it has not been held that all “mandatory” statutes are'" now subject to a harmless error analysis, at least some are. See Roberts v. State, 784 S.W.2d 430, 435-36 (Tex.Cr.App.1990).

We recognize that the Court of Criminal Appeals recently held that a harm analysis should not be applied to the violation of a mandatory statute where the appellate record does not “reveal any concrete data from which an appellate court can meaningfully gauge or quantify the effect of the error.” Sodipo, at -; see also Beebe v. State, 756 S.W.2d 759 (Tex.App.1988, pet. granted). In the present case, however, we conclude that the record contains sufficient data for us to gauge the effect of the error, if any.³

First, this was not the classic case in which the appellant did not receive any appointed counsel until minutes before trial. On the contrary, counsel was initially appointed to represent appellant some three months before trial. The trial date had been scheduled by the trial court more than two-and-one-half months before the trial began. Next, the motion by which Jezek was substituted for Gauntt was signed by both attorneys, indicating at least some level of cooperation between the two. The motion was also signed personally by appellant, indicating that the substitution was made with his approval and possibly at his request. Perhaps most significant, Jezek made no request for continuance or other objection to having less than ten days between the date of her substitution and the date of trial. The suffering of harm or injury generally results in an outcry; from the absence of any outcry we may reasonably infer the absence of any injury. Finally, appellant makes no claim of harm or prejudice to this Court.

Under these circumstances, we have no difficulty concluding beyond a reasonable doubt that the error, if error it was, made no contribution to the conviction or to the punishment. In Sodipo, the Court of Criminal Appeals spoke approvingly of the federal courts’ reasoning in applying the federal “automatic reversal rule” only to those rights that are “so basic or fundamental that in their absence ‘a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence ... and no criminal punishment may be regarded as fundamentally fair.’ ” Sodipo, at-(quoting Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)). In the present case, we have no doubt as to the reliability of the outcome of the trial. Appellant’s first point of error is overruled.

In his second point of error, appellant contends that the trial court erred in overruling the motion to quash the indictment because it did not charge an offense against the laws of the State of Texas. Appellant was jointly charged and tried with Donald Ray Woods, Luis Carrion, and three others. In Woods v. State, 801 S.W.2d 932 (Tex.App.1990) decided this date, the defendant raised the same contention as the appellant does here. For the reasons stated in disposing of the fourth point of error in Woods, we overrule appellant’s second point of error.

In his third point of error, appellant asserts that the trial court erred in failing to dismiss the array when appellant made a prima facie case that the state had used peremptory challenges to strike jurors on the basis of race. In his fourth point of error, appellant contends that the trial court erred in instructing the jury “that they could consider the overt acts committed by Edward Bing Miller, after he became an agent of the police, in support of the alleged agreement to commit the object offenses of the conspiracy.” In point of error five, appellant complains that the trial court’s charge allowed the jury to convict on a theory not alleged in the indictment. In his sixth point of error, appellant asserts that the trial court erred in instructing the jury that the membership in a criminal conspiracy may change from time to time. In Carrion v. State, 802 S.W.2d 83 (Tex.App.1990) decided this date, the defendant raised these same contentions. For the reasons stated in disposing of the second, third, fourth, and fifth points of error, respectively, in Carrion, we overrule appellant’s points of error three, four, five, and six.

In his seventh point of error, appellant challenges the sufficiency of the evidence to sustain the conviction. Appellant urges that the evidence was insufficient to prove that he entered into an agreement with any other co-conspirator, whether indicted or not, which would constitute the offense charged.

Appellant was jointly tried with five co-defendants. The indictment charged a number of named defendants and unindict-ed co-conspirators with conspiring to commit the offense of aggravated delivery of cocaine over 400 grams. The indictment also alleged twenty-two overt acts in connection with the conspiracy. The voluminous record consists of almost 1,300 pages.

The appellant in his brief generally cites authorities concerning the state’s burden of proof, the elements of the offense, and the standard of review for sufficiency questions. As for the facts, appellant simply states that the

evidence against Appellant consisted of testimony of accomplice witnesses, hearsay testimony, and the fact he was present when some search warrants were served. He was never arrested for delivery of a controlled substance or even found in possession of any. The State has failed to exclude every other reasonable hypothesis for appellant’s being in the company of other co-conspirators at certain times.

The appellant does not designate which witnesses he has in mind, or the place in the record where the hearsay evidence was admitted, nor does he furnish a discussion of the facts and authorities to maintain his claim of insufficiency.

Rule 74(f) of the Rules of Appellate Procedure, relating to appellate briefs, provides in part:

The argument shall include: (1) a fair, condensed statement of the facts pertinent to such points, with reference to the pages in the record where the same may be found; and (2) such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue....

Tex.R.App.P.Ann. 74(f) (Pamph.1990).

Points of error which are not properly briefed do not present anything for review. Hefner v. State, 735 S.W.2d 608, 626-27 (Tex.App.1987, pet. ref’d). The seventh point of error is waived.

The judgment of conviction is affirmed.

1 . See now Tex.Health & Safety Code Ann. § 481.112(c) (Pamph.1991).

2 . Article 26.04(b) provided:

The appointed counsel is entitled to ten days to prepare for trial, but may waive the time by written notice, signed by the counsel and the accused.

1965 Tex.Gen.Laws, ch. 722, § 1, at 425.

3 . It seems to us that the "harm analysis” mandated by Rule 81(b)(2) can be applied to any error without fear of diminishing an appellant’s rights. If the appellate record in a particular case does not contain enough data from which to gauge or quantify the effect of an error, then the reviewing court obviously could not determine beyond a reasonable doubt that the error made no contribution to the conviction or punishment. Accordingly, Rule 81(b)(2) would require that the conviction in such a case be reversed. This approach strikes us as far simpler to administer and apply than one in which reviewing courts are left to divine which types of error are subject to a harm analysis and which are not.