Ex Parte Gudel

368 S.W.2d 775 (1963)

Ex parte Chester Victor GUDEL.

No. 35974.

Court of Criminal Appeals of Texas.

June 12, 1963.

Chester Victor Gudel, in pro. per.

Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Presiding Judge.

This is a prison drawn petition for habeas corpus.

The petitioner attacks the 12 year sentence he is serving which was pronounced against him in Cause No. 8045 in the 99th Judicial District Court of Lubbock County.

The facts are undisputed.

On October 23, 1961, upon his application showing that he was a pauper, the trial court appointed Robert E. Baber, a practicing attorney, to defend Chester Victor Gudel who was charged by indictment in said Cause No. 8045 with burglary.

Neither attorney Baber nor Gudel, the defendant in said cause, waived the 10 days allowed court appointed counsel to prepare for trial.

On October 31, 1961, the case was called for trial; the defendant's motion for continuance was overruled and the trial proceeded, resulting in a conviction with punishment, enhanced under Art. 62 Vernon's Ann.P.C. by reason of a prior conviction for a like offense, of 12 years.

Art. 494 Vernon's Ann.C.C.P. is mandatory. As amended in 1959 it provides:

"Whenever it is made known to the court at an arraignment or any other time that an accused charged with a felony is too poor to employ a counsel, *776 the court shall appoint one (1) or more practicing attorneys to defend him. "The counsel so appointed shall have ten (10) days to prepare for trial, unless such time be waived in writing by said attorneys and the accused."

Denial of the 10 days allowed court appointed counsel to prepare for trial violated the statute and infringed the rights of the accused, the petitioner herein, to the assistance of counsel for his defense under the 6th Amendment to the Constitution of the United States.

Under the record, the conviction cannot stand.

The writ is granted and it is ordered that the petitioner be delivered to the Sheriff of Lubbock County to answer the indictment in said Cause No. 8045 in the 99th Judicial District Court of said County as though the case had not been tried.