McCambridge v. State

• Decision Date: 13 September 1989
• Docket Number: No. 297-87,297-87
• Parties: Dennis Michael McCAMBRIDGE, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 70

778 S.W.2d 70

Dennis Michael McCAMBRIDGE, v. The STATE of Texas, Appellee.

No. 297-87.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 13, 1989.

J. Gary Trichter, Brian Wice, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., William J. Delmore, III and Jon Munier, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

DUNCAN, Judge.

The appellant was convicted of driving while intoxicated. Granting his first petition for discretionary review in McCambridge v. State, 712 S.W.2d 499 (Tex.Cr.App.1986), we affirmed the judgment of the First Court of Appeals holding inter alia, that under the Sixth Amendment to the United States Constitution the "[a]ppellant's right to counsel did not attach until the complaint and information were filed." Id., at 502. Consequently, under the Sixth Amendment, the appellant was not entitled to consult with an attorney prior to taking the breath test.

This Court, observing that the court of appeals failed to address the appellant's other constitutionally predicated claims for relief, remanded the case to the court of appeals. The appellant's contentions that the court of appeals was to review upon remand were as follows: that the appellant had a right to consult with an attorney before providing the police with a breath sample for an intoxilyzer test under the right to counsel provision of Art. I, § 10 of the Texas Constitution; that he also had a right to counsel under the due process clause of the Fourteenth Amendment to the United States Constitution, and under the due course of law provision of Art. I, § 19 of the Texas Constitution. In its opinion following the remand, the court of appeals rejected the appellant's contentions. McCambridge v. State, 725 S.W.2d 418 (Tex.App.--Houston [1st] 1987).

Relative to the appellant's contention that he was entitled to counsel prior to the breath test under Art. I, § 10 of the Texas Constitution and Art. 1.05, V.A.C.C.P., the court of appeals stated: "the right to counsel provision of our state constitution does not provide any greater protection in this respect than is afforded by the United States Constitution." McCambridge v. State, supra, at 420. Thus, one's right to counsel under Art. I, § 10 of the Texas Constitution "attaches only upon formal initiation of judicial proceedings." Id., at 420.

Apparently after this Court remanded this cause to the court of appeals, the appellant, for the first time, claimed that he was denied his right to counsel in violation of Articles 15.17 and 38.22, V.A.C.C.P. The court of appeals summarily disposed of these issues by declining to review the claims because of appellant's unexplained procedural default.

Finally, the Court overruled appellant's grounds of error dealing with being denied due process and due course of law under the provisions of the Federal and State Constitutions, and also under Article 1.04 of the Texas Code of Criminal Procedure. Finding that the due course of law provisions of the Texas Constitution and its statutory progeny provide no greater protection than that of its federal equivalent, the Court held that denial of counsel before deciding whether to submit to a breath test under the circumstances of this case did not reflect a violation of the basic "decencies of civilized conduct," id., at 421-422, and therefore there was no basis to conclude that appellant was denied either due process or due course of law under the respective constitutions.

This Court granted appellant's petition for discretionary review in order to determine the correctness of the court of appeals opinion relative to the following grounds for review:

1. Whether the court of appeals erred in determining that appellant's breath test result was obtained in violation of the right to counsel provision of Article 1, § 10 of the Texas Constitution.

2. Whether the appellant had a right to counsel under Articles 1.05, 15.17, and 38.22 of the Texas Code of Criminal procedure.

3. And, whether the court of appeals erred in determining that the due process and due course of law provisions of the Federal and State Constitutions respectively, as well as Article 1.04 of the Texas Code of Criminal Procedure did not require the assistance of counsel before appellant made a decision as to whether he should take the breath test.

We will affirm the judgment of the court of appeals. In Forte v. State, 759 S.W.2d 128 (Tex.Cr.App.1988), this Court held "[t]he time at which an accused is faced with decision of whether to submit to a breath test is not a 'critical stage' of the criminal process which necessitates either the prior consultation or presence of counsel under the right to counsel provision of Article I, § 10 of the Texas Constitution." Id., at p. 139. We therefore reject the appellant's claim made pursuant to Article I, § 10 of the Texas Constitution.

We also find that his assertions made under Articles 1.05, 15.17 and 38.22 of the Texas Code of Criminal Procedure, are likewise without merit. Rather than invoke the waiver doctrine, we will resolve these collateral issues as a matter of judicial economy. As to Article 1.05, ¹ supra, it is obvious that it is merely the codified statutory progeny of Article I, § 10 of the Texas Constitution and we can find no authority which would indicate that the Legislature intended an expansion of rights other than those set out in the constitutional provision.

Nor can we glean from Article 38.22, supra, a Legislative intent that would statutorily provide a right to counsel prior to the administration of the chemical sobriety test. Just recently in Bass v. State, 723 S.W.2d 687 (Tex.Cr.App.1986), this Court held "[b]ecause '[i]n the context of an arrest for driving while intoxicated, a police inquiry of whether the suspect will take a blood-alcohol test is not an interrogation within the meaning of [the Fifth Amendment],' McCambridge v. State, 712 S.W.2d 499 (Tex.Cr.App.1986), quoting South Dakota v. Neville, 459 U.S. at 564, n. 15, 103 S.Ct. at 923, n. 15 [74 L.Ed.2d 748 (1983) ], we do not think such inquiry constitutes an 'interrogation' for purposes of Article 38.22, supra." Id., at 691. This reasoning is equally applicable to appellant's claim asserted under Article 15.17, supra, as the warnings made mandatory in that provision are but part of the predicate set forth in Article 38.22(2)(a), supra, which is necessary for the introduction of a written statement of an accused. Further, there is nothing in the record to suggest that a magistrate prevented the appellant from contacting counsel. Therefore, the appellant's claims grounded upon the various statutory right to counsel provisions are therefore denied.

In three grounds for review the appellant claims that the due process clause of the Fourteenth Amendment and independently Art. I, § 19 of the Texas Constitution (due course of law) and its statutory equivalent, Article 1.04, V.A.C.C.P., create a "limited right to counsel to guarantee fairness ..." to the appellant. In other words, the appellant claims that the due process clause of the Federal Constitution and its state counterpart (due course of law provision in Art. I, § 19, Tex. Const.) are either jointly or independently the basis of a right to counsel under the Sixth Amendment of the United States Constitution or Art. I, § 10 of the Texas Constitution.

Relative to the appellant's Fourteenth Amendment due process claim, in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), ² the United States Supreme Court did ignore the Sixth Amendment's right to counsel provision and instead concluded that the due process clause of the Fourteenth Amendment required the states to provide counsel to a defendant exposed to the death penalty. The philosophical basis for the Court's decision was essentially that fundamental fairness demanded the appointment of counsel because without counsel the defendant would be deprived of a fair trial.

The practical basis of the Court's utilization of the due process clause in its decision was not nearly so esoteric: in 1932, the Supreme Court had not yet begun to selectively apply the Bill of Rights to the states. Consequently, the fundamental fairness analysis was the prevailing analysis.

Nevertheless, through Powell and several cases decided after Powell: Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), the Court made it clear that a constitutional right to counsel could be derived from both the due process clause of the Fourteenth Amendment and the Sixth Amendment. However, in 1963 that, insofar as criminal prosecutions are concerned, changed. In Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the United States Supreme Court concluded that the Sixth Amendment was applicable to the states through the Fourteenth Amendment. Thus, at least in this context, it became unnecessary to employ the due process clause and a fundamental fairness analysis to determine if a state is obligated to provide counsel to an indigent defendant.

That, however, did not automatically eliminate the principle that due process is an independent source for a right to counsel. For example, in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), the Supreme Court concluded that because of the due process clause welfare recipients could not have their benefits terminated without an evidentiary hearing. In addition, the Court, citing Powell v. Alabama, supra, decided that the welfare recipient had a right to be represented by counsel at such evidentiary hearing. At the foundation of Goldberg v. Kelly, supra, was the observation that " '[t]he fundamental requisite of due process of law is the opportunity to be heard.' " Id., at 267, 90 S.Ct. at 1020. So, the Court's deriving a right to co...