Marin v. State

• Decision Date: 10 March 1993
• Docket Number: No. 126-91,126-91
• Citation: 851 S.W.2d 275
• Parties: Jose MARIN, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 275

851 S.W.2d 275

Jose MARIN, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 126-91.

Court of Criminal Appeals of Texas,

En Banc.

March 10, 1993.

Rehearing Denied April 14, 1993.

Troy C. Hurley, Belton, for appellant.

Arthur C. "Capp" Eads, Dist. Atty., James T. Russell, Asst. Dist. Atty., Belton, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MEYERS, Judge.

Appellant was convicted by a jury of conspiracy to deliver cocaine and sentenced by the trial court to twenty-five years confinement in the penitentiary. The Court of Appeals affirmed. Marin v. State, 801 S.W.2d 944 (Tex.App.--Austin 1990). We granted Appellant's petition for discretionary review to determine (1) whether failure of the trial judge to allow appointed counsel ten days of trial preparation in violation of article 1.051(e), Texas Code of Criminal Procedure, may be raised for the first time on appeal, and (2) whether, if so, such error is subject to a harm analysis under rule 81(b)(2), Texas Rules of Appellate Procedure.

I.

On January 27, 1988, an indictment was returned charging Appellant and twenty-one others with conspiracy to deliver cocaine. Although Appellant first retained counsel, his attorney was permitted to withdraw on February 16, 1988. The same day, John Gauntt was appointed by the trial judge to represent him. However, on May 10, 1988, Gauntt filed and was granted a motion to substitute Fancy Jezek as Appellant's attorney. Six days later, the case was called for trial. Jezek appeared and announced ready without applying for a continuance or otherwise suggesting that she required more time to prepare. The record does not reflect that Appellant personally consented to his attorney's announcement.

Our law provides that "[a]n 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 Crim.Proc. art. 1.051(e) (West Supp.1993). Appellant argued before the Court of Appeals that this statute is "mandatory," by which he evidently meant that, absent express waiver, a trial judge is absolutely required by law to arrange his docket in such a way as to afford appointed counsel ten days of preparation time, and that no objection is required to preserve for appeal the failure of a trial judge to do so. The Court of Appeals accepted Appellant's argument that counsel was entitled to the statutory preparation time even without request, but nevertheless concluded that Rule 52(a), Texas Rules of Appellate Procedure, imposes a waiver requirement distinct from that set out in article 1.051(e). ^* Specifically, the court held:

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) [Tex.Code.Crim.Proc. (West Supp.1993) ]. 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.

Marin, 801 S.W.2d at 946 (emphasis in original).

II.

In some respects, the reasoning of the Court of Appeals is plausible. The right to appeal is, indeed, distinct from other rights possessed by litigants. Accordingly, the fact that a litigant has certain legal rights at trial does not automatically entitle him to appeal the wrongful denial of those rights. Olowosuko v. State, 826 S.W.2d 940 (Tex.Crim.App.1992) (no right to appeal denial of rights affecting decision to proceed with an adjudication of guilt under art. 42.12 § 5(b), Tex.Code Crim.Proc.); Basaldua v. State, 558 S.W.2d 2, 5 (Tex.Crim.App.1977) (no right to appeal unreasonable conditions of probation imposed in modification order). Moreover, the right to appeal is not of constitutional magnitude, but is conferred by the Legislature. See Galitz v. State, 617 S.W.2d 949, 951 (Tex.Crim.App.1981) (opinion on rehearing); Ex parte Spring, 586 S.W.2d 482, 485-486 (Tex.Crim.App.1978). See also Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). And that which the Legislature may withhold altogether, it may withhold in part. Thus, our lawmakers may deny the right to appeal entirely or the right to appeal only some things or the right to appeal all things only under some circumstances.

But Rule 52(a) is not an act of the Legislature, and it may not "abridge, enlarge, or modify the substantive rights of a litigant" or conflict with the Code of Criminal Procedure. Tex.Gov.Code Ann. § 22.108(a); Tex.Code Crim.Proc.Ann. art. 44.33(a). Because the Legislature has expressly conferred a broad right of appeal in criminal cases without excluding appellate review of all complaints unless first made to the trial judge, Rule 52(a) should not be construed independently to curtail the rights of appeal given by statutes such as articles 44.02 and 44.07 of the Code of Criminal Procedure.

Perhaps for this reason, the Court of Appeals held that Rule 52(a) "is plainly a rule of procedure and does not affect the substantive rights of a criminal defendant." Id. But, if construed as a procedural rule of general application, Rule 52(a) also conflicts with article 1.051(e) insofar as the latter governs procedure for relinquishing the substantive right to trial preparation time provided by statute. Accordingly, we think it far more consistent with the overall structure of our adversary system that litigants not be required by Rule 52(a) to do more for the preservation of their complaints on appeal than they must do at trial to secure benefits of the law to which they are entitled.

The system of adjudication at work in Texas, and generally throughout the United States, is chiefly characterized by an array of rules which are optional with the litigants. Lankston v. State, 827 S.W.2d 907, 908 (Tex.Crim.App.1992). This is consistent with an adversarial process in which the trial judge, as institutional referee, enforces rules of contention only when asked to do so by a litigant for whose benefit the rule exists. For example, evidence of a certain kind, such as hearsay, might be excluded upon the request of a party to the lawsuit. The trial judge has no duty to exclude it on his own, and would probably fall into error if he did. Once admitted without objection, such evidence enjoys a status equal to that of all other admissible evidence. In particular it has probative value and will support a judgment in favor of the party offering it. Chambers v. State, 711 S.W.2d 240, 245-247 (Tex.Crim.App.1986).

A cursory examination of the myriad evidentiary and procedural rules comprising our system reveals that most of them are of this type. Unless a litigant exercises his option to exclude evidence it is to be admitted. See Tex.R.Crim.Evid. 103(a). Unless he moves to avail himself of a procedural benefit, such as a jury shuffle or a peremptory challenge, no such benefit inures, and the panel will not be shuffled, nor will the juror be excluded. Because the judge has no independent duty in this regard, his failure to shuffle the panel or to excuse the veniremember isn't error about which complaint might later be made on appeal. In short, the rights of litigants in our system of adjudication are usually forfeited by a failure to exercise them. See also Art. 1.14(b), V.A.C.C.P.

That is not always the case, however. Some rights are widely considered so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection in the system. Tex.R.Crim.Evid. 103(d). A principle characteristic of these rights is that they cannot be forfeited. That is to say, they are not extinguished by inaction alone. Janecka v. State, 823 S.W.2d 232, 243 n. 2 (Tex.Crim.App.1990) (opinion on rehearing). Instead, if a defendant wants to relinquish one or more of them, he must do so expressly. See Art. 1.14(a), V.A.C.C.P. His rights to the assistance of counsel and to a jury trial are of this kind. Arts. 1.051(f), (g), (h), 1.13, V.A.C.C.P.; Holloway v. State, 780 S.W.2d 787, 793 (Tex.Crim.App.1989). See also Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977); Michigan v. Jackson, 475 U.S. 625, 633, 106 S.Ct. 1404, 1409, 89 L.Ed.2d 631 (1986). The State may not successfully put him to trial without counsel or jury merely because he voiced no objection to the procedure. See also 1.141, V.A.C.C.P. Rather, it must first obtain his permission by express waiver--waiver which is not sufficient in contemplation of the law unless it amounts to the "intentional relinquishment or abandonment of a known right or privilege." E.g., Janecka v. State, 739 S.W.2d 813, at 829 (Tex.Crim.App.1987), quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). See also Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963).

Rights belonging to litigants in our system of justice may be classified, and are almost invariably implemented, in this way. All but the most fundamental rights are thought to be forfeited if not insisted upon by the party to whom they belong. Many constitutional rights fall into this category. When we say "that even constitutional guarantees can be waived by failure to object properly at trial," we mean that some, not all, constitutional rights may be forfeited. Gibson v. State, 516 S.W.2d 406, 409 (Tex.Crim.App.1974). On the other hand, certain, relatively few, rights must be protected by the system's impartial representatives unless expressly waived by the party to whom they belong. Determining which category a right occupies will usually settle the question of...