Green v. State

• Decision Date: 12 January 1994
• Docket Number: No. 1388-91,1388-91
• Citation: 872 S.W.2d 717
• Parties: Clifton Edmond GREEN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 717

872 S.W.2d 717

Clifton Edmond GREEN, Appellant, v. The STATE of Texas, Appellee.

No. 1388-91.

Court of Criminal Appeals of Texas En Banc.

Jan. 12, 1994.

Kenneth W. Smith, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Alan Curry & Natalie Fleming, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION ON APPELLANT'S AND STATE'S 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 In an unpublished opinion the court of appeals affirmed his conviction, holding, inter alia, that although appellant was entitled to counsel under the Sixth Amendment at his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).

I.

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 Nehman 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] right 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 case, 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...