Empy v. State

• Decision Date: 20 September 1978
• Docket Number: No. 55957,55957
• Parties: Louis EMPY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 526

571 S.W.2d 526

Louis EMPY, Appellant, v. The STATE of Texas, Appellee.

No. 55957.

Court of Criminal Appeals of Texas.

Sept. 20, 1978.

William L. Garrett, Dallas, for appellant.

Henry Wade, Dist. Atty., Fred C. McDaniel and Mary Ludwick, Asst. Dist. Attys., Dallas, for the State.

En Banc.

OPINION

DALLY, Judge.

This is an appeal from a conviction for theft of more than $20.00 but less than $200.00; the punishment is a $300.00 fine. Appellant contends that the judgment is void since, when he entered his plea of guilty without representation by counsel, there existed a possibility his punishment would include imprisonment.

Appellant's contention finds apparent support in Ex parte Herrin, 537 S.W.2d 33 (Tex.Cr.App.1976), in which it was said:

"It is well settled that criminal defendants in misdemeanor cases are entitled to counsel if there exists a possibility that imprisonment may be imposed. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Walker v. State, 486 S.W.2d 330 (Tex.Cr.App.1972); Ramirez v. State, 486 S.W.2d 373 (Tex.Cr.App.1972)."

This sentence is susceptible of misinterpretation. Let us examine the cases relied on for the statement quoted from Ex parte Herrin, supra, and let us compare the facts of Ex parte Herrin, supra, with the facts of this case.

There is no language in Argersinger v. Hamlin, supra, which requires that defendants in misdemeanor cases be represented by counsel merely because there exists a possibility that imprisonment may be imposed. The punishment assessed in that case included imprisonment for 90 days. Mr. Justice Douglas, who authored the opinion for the United States Supreme Court, said:

"We need not consider the requirements of the Sixth Amendment as regards the right to counsel where loss of liberty is not involved, however, for here petitioner was in fact sentenced to jail."

Argersinger v. Hamlin, supra, holds that absent a knowing and intelligent waiver no person may be imprisoned for any offense unless at his trial he was represented by counsel, but it was also said in that case that:

"Under the rule we announce today, every judge will know when the trial of a misdemeanor starts that no imprisonment may be imposed, even though local law permits it, unless the accused is represented by counsel. He will have a measure of the seriousness and gravity of the offense and therefore know when to name a lawyer to represent the accused before the trial starts.

"The run of misdemeanors will not be affected by today's ruling. But in those that end up in the actual deprivation of a person's liberty, the accused will receive the benefits of 'the guiding hand of counsel' so necessary when one's liberty is in jeopardy."

In Walker v. State, supra, a prior conviction was held void because the defendant had not been represented by counsel when tried for the misdemeanor offense of driving a motor vehicle upon a public road while intoxicated; however, on conviction for that offense imprisonment was a mandatory punishment. Art. 802, V.A.P.C. (1925). In Ramirez v. State, supra, a prior conviction was held void because the defendant had not been represented by counsel when he was tried for the misdemeanor offense of child desertion; however, on conviction for that offense imprisonment was a mandatory punishment. Art. 602, V.A.P.C. (1925, as amended, Acts 1959). Although not cited in Ex parte Herrin, supra, the same result was reached in Ex parte Webster, 497 S.W.2d 305 (Tex.Cr.App.1973), as in Walker v. State, supra.

In Ex parte Herrin, supra, the defendants had been tried on pleas of not guilty before a jury and the punishment Actually assessed was 90 days' imprisonment and a fine of $500.00.

In the instant case the appellant was tried before the court and the punishment assessed was a fine of $300.00. The trial judge knew of the holding of Argersinger v. Hamlin, and knew that when he accepted the appellant's plea of guilty he could not assess punishment of imprisonment, but could only assess a fine if the appellant was unrepresented by counsel. In these circumstances, the court was not required to appoint an attorney to represent the appellant. Argersinger v. Hamlin, supra; and see Aldrighetti v. State, 507 S.W.2d 770 (Tex.Cr.App.1974); Lopez v. State, 507 S.W.2d 776 (Tex.Cr.App.1974); Ex parte Casarez, 508 S.W.2d 620 (Tex.Cr.App.1974). We hold as we did in Aldrighetti v. State, supra; Lopez v. State, supra, and Ex parte Casarez, supra, that when Only a fine is actually assessed in a misdemeanor case, the judgment is not void even though the defendant was indigent, was not represented by counsel, and was convicted under a statute which included imprisonment as a possible punishment.

The dissenting opinion appears to engage in a bit of studied sophistry by stating, "The facts in Hooper v. State, Tex.Cr.App., 557 S.W.2d 122 are similar to those in the instant case except that the defendant therein was assessed a jail term." Since Hooper's punishment was imprisonment for ninety days and the punishment in the instant case was only a fine the facts are quite dissimilar and the opinion in Hooper v. State, supra, and in this case are entirely consistent. The long quotation from Hooper v. State, supra, in no way supports the dissent since Hooper's punishment was imprisonment for ninety days and the appellant's here was by only a fine.

The dissenting opinions imply that the majority interpretation of Argersinger v. Hamlin, supra, is unique. However, it is the interpretation of Argersinger v. Hamlin, supra, by the United States Court of Appeals for the Fifth Circuit and the dissenters here that is out of line with the interpretation of courts in other jurisdictions. The majority opinion here is in agreement with the interpretation of Argersinger v. Hamlin, supra, by the Supreme Courts of Illinois, Virginia, Florida, Idaho, and Mississippi as well as the United States Courts of Appeal for the Fourth and Tenth Circuits.

As succinctly put in Sweeten v. Sneddon, 463 F.2d 713 (10th Cir. 1972): "Argersinger forbids imprisonment without representation. It does not forbid trial without representation."

The Supreme Court of Illinois in People v. Scott, 68 Ill.2d 269, 12 Ill.Dec. 174, 369 N.E.2d 881 (1977) said:

"We are unpersuaded by defendant's argument that the mere possibility of incarceration upon conviction should trigger a defendant's constitutional right to counsel for there exists no possibility of incarceration if counsel was not properly waived. We are not inclined to extend Argersinger and Morrisey merely because a defendant is charged with a statutory offense which provides for various sentencing alternatives upon conviction."

See also Whorley v. Commonwealth, 215 Va. 740, 214 S.E.2d 447 (1975); Mahler v. Birnbaum, 95 Idaho 14, 501 P.2d 282 (1972); Nelson v. Tullos, 323 So.2d 539 (Miss.1975); Rollins v. State, 299 So.2d 586 (Fla.1974); Marston v. Oliver, 485 F.2d 705 (4th Cir. 1973); Morgan v. Juvenile and Domestic Relations Court of Halifax County, Virginia, 491 F.2d 456 (4th Cir. 1974).

Art. 26.04, V.A.C.C.P., in part provides that when an accused is charged with a misdemeanor Punishable by imprisonment and he is too poor to employ counsel, the court shall appoint an attorney to defend him. Although this statute antedates Argersinger v. Hamlin, supra, we construe it in light of Argersinger v. Hamlin, supra, to require the appointment of counsel only when the court knows it will assess punishment including imprisonment or when the trial is before a jury where the possible punishment authorized includes imprisonment. A defendant is not Punishable by imprisonment if he is unrepresented by counsel unless he waives counsel. The concurring opinion of Chief Justice Burger and the concurring opinion of Mr. Justice Powell in Argersinger v. Hamlin, supra, discuss the limitation of punishment to a fine when a defendant without counsel is tried under a statute which provides punishment by both fine and imprisonment. They also discuss the difference between jury and non-jury trials in this respect. It is unnecessary to repeat these discussions in this opinion.

In this case there is nothing to indicate that the appellant was too poor to employ counsel. The transcription of the court reporter's notes of the hearing on the motion for new trial is not properly before us for consideration. The portion of the record of which we may properly take cognizance shows that the appellant was a self-employed house painter twenty-eight years of age. He was married, had no children, and owned his home. He made one personal appearance bond which was forfeited and then made another appearance bond with a corporate surety. He made an appeal bond with corporate surety, and he was represented on a motion for new trial by an attorney who was not appointed. In these circumstances it was unnecessary for the court to appoint counsel under the provisions of Art. 26.04, V.A.C.C.P.

Moreover, there appears in this record an instrument designated "Waiver of Appointment of Attorney by Defendant Entering a Plea of Guilty" which was signed by the appellant. The pertinent part of this instrument reads:

"Now comes the undersigned defendant in this cause and represents to the Court that he has no attorney, that he does not intend to employ counsel herein, and that he waives any right he may have, on application therefor, to have the court appoint an attorney to defend him in this cause;

"Defendant further represents to the Court that he desires to make immediate disposition of this case by here and now entering his plea of guilty herein, waiving trial by jury and submitting it to the Court on all issues of law and fact;

"Wherefore, premises considered, defendant prays the court to proceed immediately on the filing hereof to arraign him in this cause, to accept his said plea of guilty and waiver of trial by jury, to enter judgment thereon and, having entered the same, to immediately...