Green v. State

872 S.W.2d 717, 1994 Tex. Crim. App. LEXIS 8, 1994 WL 5687

• Court: Court of Criminal Appeals of Texas
• Decided: January 12, 1994
• Docket: 1388-91
• Status: Published

Opinions

OPINION ON APPELLANT’S AND STATES PETITIONS FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant was convicted of the offense of possession of cocaine in an amount less than 28 grams, and his punishment, enhanced by two prior felony convictions, was assessed at confinement for 50 years. In an unpublished opinion the court of appeals affirmed his conviction, holding, inter alia, that although appellant was entitled to counsel under the Sixth Amendment at his so-called preliminary initial appearance (“PIA”), he essentially waived that right by not requesting appointment of counsel at that time under Article 1.051(c), V.A.C.C.P. Green v. State, No. 01-90-00662-CR, 1991 WL 189699 (Tex. App. — Houston [1st], delivered September 26, 1991). In his petition for discretionary review appellant now contends that the court of appeals erred to conclude he waived his right to counsel at the PIA by failing to invoke it. In a cross-petition for discretionary review the State argues that in any event the court of appeals erred to hold appellant had a Sixth Amendment right to counsel at the PIA. We granted both petitions pursuant to Tex.R.App.Pro., Rule 200(c)(2).

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Appellant was arrested without a warrant on March 2, 1990, for the offense of possession of cocaine. The next day, on March 3, a felony complaint was filed. The complaint contains a notation that indicates bail in the amount of $10,000, but the record is silent as to whether bail was actually set at this amount on March 3, and, if so, by whom.¹ On March 4, 1990, appellant appeared before a magistrate for what we are told was his PIA. At this time the magistrate warned appellant pursuant to Article 15.17(a), V.A.C.C.P., and, according to the docket sheet, a finding of probable cause was then made.² The record does not demonstrate, and appellant does not contend, that the magistrate set bail at this time.³ The “case” was then reset, again, according to the docket sheet, for the next day, March 5,1990. On that date appellant filed a pauper’s oath and counsel was appointed to represent him. Appellant was indicted on March 23, 1990, and on June 29,1990, he was re-indicted. On July 2, 1990, appellant was convicted under the second indictment, and the original indictment was dismissed.

Appellant contended in the court of appeals that his right to counsel under both the Sixth Amendment and Article I, § 10 of the Texas Constitution was violated because he was not represented by counsel at the PIA. The court of appeals agreed that appellant had a right to counsel, citing Nehman v. State, 721 S.W.2d 319 (Tex.Cr.App.1986) for that proposition. But Nehman does not purport to address the right to counsel under Article I, § 10 — in fact, the holding in Neh-man is expressly limited to the Sixth Amendment. See 721 S.W.2d at 320. Therefore, the court of appeals did not resolve the issue as to appellant’s right to counsel under Article I, § 10. Appellant does not specifically complain of this defect, however, in his petition for discretionary review. We limit our consideration, accordingly, to the Sixth Amendment issue that was addressed in the court of appeals.

Having held that appellant did indeed enjoy a Sixth Amendment right to counsel at his PIA, the court of appeals reasoned that he was not denied that right because he never requested the appointment of counsel for purposes of representation at that hearing, under the terms of Article 1.051(c), supra. That provision mandates that “the court” “appoint counsel to represent the defendant as soon as possible!,]” “[i]f” he is “indigent ... and requests appointed counsel!.]” Now in his petition for discretionary review appellant argues that the court of appeals erred thus to hold that his right to counsel was contingent upon request. The State counters in its cross-petition that the court of appeals erred to hold appellant had a right to counsel at the PIA in the first instance. The State’s argument is two-fold. First, no right to counsel inheres at the PIA because it precedes the commencement of judicial adversarial proceedings. Second, even if judicial adversarial proceedings had commenced at the time of the PIA, that proceeding does not represent a “critical stage” of the prosecution so as to invoke the Sixth Amendment right to counsel.

II.

In Oliver v. State, 872 S.W.2d 713 (Tex.Cr.App., delivered this day), we decided that failure to request counsel at a preindictment hearing under Article 1.051(c), supra, does not effect a waiver or forfeiture of the Sixth Amendment right to counsel, if any. Accordingly, we hold that the court of appeals erred to conclude that appellant lost any Sixth Amendment right to counsel at his PIA. However, in light of the issues raised in the State’s cross-petition, this holding does not end matters here. We proceed, then, to address those issues.

III.

A.

The Sixth Amendment to the United States Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” This right does not attach, however, prior to “the initiation of adversary judicial proceedings!,]” United States v. Gouveia, 467 U.S. 180, at 187, 104 S.Ct. 2292, at 2297, 81 L.Ed.2d 146, at 153 (1984), “whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Kirby v. Illinois, 406 U.S. 682, at 689, 92 S.Ct. 1877, at 1882, 32 L.Ed.2d 411 at 417 (1972) (Plurality opinion); see also Moore v. Illinois, 434 U.S. 220, at 228, 98 S.Ct. 458, at 464, 54 L.Ed.2d 424, at 433 (1977). The State argues that none of these events had occurred by the time of the PIA.

Our caselaw is somewhat indeterminate on the question of what events may serve to initiate adversary judicial proceedings for Sixth Amendment purposes. The State urges us to hold that in a felony prosecution adversary judicial proceedings do not commence until the filing of an indictment. There are indeed opinions from this Court that seem to support this proposition. In DeBlanc v. State, 799 S.W.2d 701, at 706 (Tex.Cr.App.1990), we “summarily” dismissed a Sixth Amendment claim of right to counsel “since [DeBlanc’s] light to an attorney under that Amendment did not arise until after he was indicted.” Cf. Spence v. State, 795 S.W.2d 743, at 752-53 (Tex.Cr.App.1990) (no Sixth Amendment right to counsel at taking of dental impressions because Spence “was not then formally charged or indicted”); Holloway v. State, 780 S.W.2d 787, at 791, n. 3 (Tex.Cr.App.1989) (“return of an indictment signals” initiation of adversary judicial proceedings); McCambridge v. State, 712 S.W.2d 499, at 502 (Tex.Cr.App.1986) (in misdemeanor ease, defendant’s “Sixth Amendment right to counsel did not attach until the complaint and information were filed.”). On the other hand, though we have made it clear that an arrest alone does not trigger adversarial judicial proceedings, with or without a warrant, Dunn v. State, 696 S.W.2d 561 (Tex.Cr.App.1985); Garcia v. State, 626 S.W.2d 46, at 53 (Tex.Cr.App.1981); see also McGee v. Estelle, 625 F.2d 1206 (C.A.5 1980), nor does an Article 15.17 warning, Wyatt v. State, 566 S.W.2d 597, at 600 (Tex.Cr.App.1978), a two judge panel opinion has held that the filing of a felony complaint does. Barnhill v. State, 657 S.W.2d 131, at 132 (Tex.Cr.App.1983). Cf. Nehman v. State, supra, at 322 & 323, n. 2 (adversarial judicial proceedings had begun by the time of Article 15.17 warnings because by then unspecified “charges” had been filed against defendant); Miffleton v. State, 777 S.W.2d 76, at 78 (Tex.Cr.App.1989) (adversary judicial proceedings commence in misdemeanor prosecution when “the complaint is filed.”); Forte v. State, 707 S.W.2d 89, at 92 (Tex.Cr.App.1986) (same). This latter view is at least consistent with, if not dictated by, precedent from the United States Supreme Court. See Moore v. Illinois, supra; Brewer v. Williams, 430 U.S. 387, at 399, 97 S.Ct. 1232, at 1239-40, 51 L.Ed.2d 424, at 436 (1977); Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986).

We need not here decide when adversary judicial proceedings commence. For even if the felony complaint was sufficient to mark the initiation of adversary judicial proceedings, we agree with the State that nothing occurred at appellant’s PIA that would render it a “critical stage” of the prosecution against him. The court of appeals erred to hold he had any Sixth Amendment right to waive.

B.

Not every event following the inception of adversary judicial proceedings constitutes a “critical stage” so as to invoke the right to counsel under the Sixth Amendment.⁴ E.g., United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973) (post-indictment photographic display used to test witness identification prior to trial is not a “critical stage”). In assessing whether a particular stage of the pre-trial proceedings is a “critical” one, “the test utilized by the Court has called for examination of the event in order to determine whether the accused required aid in coping with legal problems or assistance in meeting his adversary.” Id., U.S. at 313, S.Ct. at 2575, L.Ed.2d at 628. In essence, we must scrutinize any pre-trial event with a view to ascertaining whether presence of counsel is necessary to assure fairness and the effective assistance of counsel at trial, which is, after all, “the core purpose of the counsel guarantee ..., when the accused [is] confronted with both the intricacies of the law and the advocacy of the public prosecutor.” Id., U.S. at 309, S.Ct. at 2573, L.Ed.2d at 626. See also United States v. Wade, 388 U.S. 218, at 227, 87 S.Ct. 1926, at 1932, 18 L.Ed.2d 1149, at 1157 (1967).

We cannot say that anything that occurred at appellant’s PIA required the aid of counsel to cope with any legal problem or assist in meeting the prosecutorial adversary. All that the record reveals for certain is that appellant was warned in accordance with Article 15.17(a), supra, and that a probable cause determination was made, presumably to satisfy the Fourth Amendment. As to the former, we can hardly imagine a reason to require counsel to be present for the mere dispensation of warnings of the rights of the accused pursuant to Miranda5 and Article 38.22, V.A.C.C.P. The warnings themselves serve as a prophylaxis, to make sure at a stage of the proceedings at which the accused is not yet likely to have an attorney present that he is nevertheless informed of his Fifth Amendment rights to remain silent and to obtain the presence of a lawyer as a condition of any submission to questioning by authorities. It would be odd indeed to require the presence of counsel at this event. Article 15.17 also requires that the accused be informed of the accusation against him. But appellant was neither required under the statute, nor was he apparently asked, to enter a plea of any kind. In this respect the PIA is unlike the preliminary hearing deemed to be a critical stage in White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), where the defendant was informed of the charges against him and required to enter a plea. Compare Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961). With regard to the preservation of fairness and the assurance of effective assistance of counsel at trial, appellant stood to gain nothing by the presence of, and risked losing nothing in the absence of, an attorney at his side during the Article 15.17 warnings.

Because appellant was arrested without a warrant, it was necessary under the Fourth Amendment for the State promptly to obtain a probable cause determination “as a condition of any significant pretrial restraint of his liberty.” Gerstein v. Pugh, 420 U.S. 103, at 125, 95 S.Ct. 854, at 868-69, 43 L.Ed.2d 54, at 71-72 (1974). We are not apprised of the exact nature of the probable cause determination made at appellant’s PIA, but we presume it was to serve this Fourth Amendment purpose. The probable cause finding contemplated by Gerstein v. Pugh is usually non-adversarial, and therefore not ordinarily considered to be a critical stage. Id., U.S. at 122-23, S.Ct. at 867-68, L.Ed.2d at 70. It is true that an examining trial in Texas serves 'as an adversarial proceeding designed to inquire into the probable cause of the State to justify detention of an accused pending formal prosecution, and state law permits the examining magistrate to appoint counsel for the indigent accused. See Article 1.051(e), supra, and Articles 16.01, 16.06 & 16.17, V.A.C.C.P. Moreover, an examining trial in large measure affords an accused the opportunity to discover the State’s case against him. Given its adversarial character, and the potential it presents for the preparation of a trial defense, an examining trial is arguably a critical stage for purposes of Sixth Amendment analysis. See Coleman v. Alabama, 399 U.S. 1, at 9, 90 S.Ct. 1999, at 2003, 26 L.Ed.2d 387, at 397 (1970); Gerstein v. Pugh, U.S. at 122-23, S.Ct. at 867-68, 43 L.Ed.2d at 70-71. In fact, the Supreme Court barely avoided deciding whether an examining trial is a critical stage in Pointer v. Texas, 380 U.S. 400, at 379-380, 85 S.Ct. 1065, at 1067, 13 L.Ed.2d 923, at 925-26 (1965).

But appellant does not claim that an examining trial was conducted at his PIA. Nor does he claim that the magistrate should have held an examining trial at that time. He does not even claim that the probable cause determination the magistrate made at the PIA would somehow preclude a later examining trial. In short, appellant does not now complain of having been deprived of any advantage a full-blown examining trial would have afforded. Indeed, counsel appointed for appellant the day after the PIA could easily have requested an examining trial, but did not. Absent a claim that the PIA was, or should have been, an examining trial, for all we can tell the probable cause determination that was made there was nothing more than the type of non-adversarial proceeding held not to constitute a critical stage in Gerstein v. Pugh, supra.

Finally, the record does not establish that bail was set at the PIA. Nevertheless, appellant argues that had counsel been appointed prior to the PIA, he could have contested the bail that had (apparently) been set previously. See nn. 1 & 3, ante. Undoubtedly this is true, but it does not convert the PIA into a critical stage. Other than its Article 15.17 aspect, the PIA, per se, is not a requirement of state law. While excessive bail violates Article I, § 13 of the Texas Constitution, the traditional method of attacking excessive bail is by application for writ of habe-as corpus. See 1 Braden, et al, The Constitution of the State of Texas: An Annotated and Comparative Analysis, (1977), at 46. Appellant does not claim he was deprived of counsel to represent him in any habeas corpus action to contest his bail. Indeed, counsel was appointed for him the day after the PIA; yet the record does not reflect appellant ever sought a reduction of bail by this usual procedure. In any event, appellant does not demonstrate that a failure to reduce his bail somehow impacted the fairness of, or counsel’s ability effectively to represent him at, his trial. See United States v. Ash, supra; United States v. Wade, supra. Under the circumstances, the possibility that a lawyer might have contested bail at the PIA does not elevate that proceeding to the level of a critical stage.

We hold that nothing the record shows to have occurred at appellant’s PIA amounted to a critical stage invoking his Sixth Amendment right to counsel. Thus, though the court of appeals erroneously held appellant waived any right to counsel under the Sixth Amendment, it also erred to hold he had such a right to begin with. Accordingly, we affirm its judgment.

MILLER, J., concurs in the result.

1 . We might speculate that this notation on the felony complaint represents no more than a recommendation from an assistant district attorney at in-take, “based on a printed form bail schedule utilized in criminal cases.” Alberti v. Sheriff of Hands County, Texas, 406 F.Supp. 649, at 662 (S.D.Tex.1975). The record before us in this cause, however, does not affirmatively establish this.

2 . Because appellant was arrested without a warrant, his further detention without a finding of probable cause would violate the Fourth Amendment, under Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), as well as County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). In any event, even a complaint in support of an arrest warrant, Article 15.04, V.A.C.C.P., will not justify continued detention absent a second determination of probable cause, as a matter of state law. See Ex parte Garcia, 547 S.W.2d 271 (Tex.Cr.App.1977). Why any probable cause determination was made at a PIA rather than at an examining trial, Article 16.01, V.A.C.C.P., is a question not raised by either party in the present cause. See text, post.

3 .Appellant equates the PIA with a so-called “Forty Eight Hour Hearing.” See Ex parte Clear, 573 S.W.2d 224 (Tex.Cr.App.1978); Alberti v. Sheriff of Harris County, Texas, 406 F.Supp. 649 (S.D.Tex.1975). The "principal stated purpose” of such a hearing, we said in Clear, is “to review and set bonds and appoint attorneys in felony case complaints.” 573 S.W.2d at 226. See also Sanders v. City of Houston, 543 F.Supp. 694 (S.D.Tex.1982), aff'd 741 F.2d 1379 (C.A.5 1984) (Fourth Amendment requires after war-rantless arrest that accused be presented before a magistrate no later than 24 hours after initial detention for probable cause determination and setting of bail). It is odd, then, that the record does not affirmatively reflect that bail was set at the PIA, either on March 4 or on the reset on March 5.

In his brief in the court of appeals appellant relied heavily upon Alberti v. Sheriff of Harris County, supra, for the proposition he was entitled to counsel at the PIA. Alberti was a civil case, however, testing the constitutionality of jail conditions in Harris County. The federal district court, inter alia, ordered the "Forty Eight Hour Hearing,” to be conducted in the presence of counsel, as a means of assuring quick release of those jail inmates eligible for personal bond, to help reduce overcrowding. However, Alberti did not purport to require counsel under the Sixth Amendment, and to that extent it is inapposite to the present inquiry. Sanders is a Fourth Amendment case, and does not speak to the question of right to counsel.

4 . For purposes of Article I, § 10 of the Texas Constitution, this Court held in Forte v. State, 759 S.W.2d 128 (Tex.Cr.App.1988), that the right to counsel would inhtre at any “critical stage,” irrespective of whether adversary judicial proceedings had begun. Later the Court retreated somewhat from this position, declaring in McCambridge v. State, 778 S.W.2d 70, at 76 (Tex.Cr.App.1989), again for purposes of Article I, § 10 only, that no “critical stage” can occur "until formal charges are brought against a suspect.” We do not today decide the question of right to counsel at a PIA under Article I, § 10. See p. 719, ante. In the Sixth Amendment context it is clear enough that even after the initiation of adversary judicial proceedings the right to counsel attaches only at a "critical stage.” Forte v. State, 707 S.W.2d at 92.

5 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).