Oliver v. State

• Decision Date: 12 January 1994
• Docket Number: No. 1269-91,1269-91
• Citation: 872 S.W.2d 713
• Parties: William Robert OLIVER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 713

872 S.W.2d 713

William Robert OLIVER, Appellant, v. The STATE of Texas, Appellee.

No. 1269-91.

Court of Criminal Appeals of Texas,

En Banc.

Jan. 12, 1994.

Kenneth W. Smith, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. & Ernest Davila, Asst. Dist. Atty., Houston, 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 of unlawfully possessing methamphetamine, a controlled substance. His punishment, enhanced by a prior felony conviction, was assessed at ten years confinement in the penitentiary. On direct appeal he complained, among other things, that he was denied his right to the assistance of counsel at a preindictment hearing in violation of the Constitutions of Texas and the United States, and of article 1.051, Texas Code of Criminal Procedure. The Court of Appeals affirmed, holding that, although Appellant did have the right to an attorney at the proceeding in question, his failure to request appointment of counsel under article 1.051(c) effectively waived that right. Oliver v. State, 813 S.W.2d 762, 764-65 (Tex.App.--Houston [1st Dist.] 1991). We granted Appellant's petition for discretionary review to determine whether, at critical stages of the adversary criminal process, an accused may be subjected to judicial proceedings without the assistance of counsel unless he affirmatively requests the appointment of an attorney to represent him pursuant to article 1.051(c). Tex.R.App.P. 200(c)(2).

The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defence." This assurance has long been construed to require, absent an effective waiver, that an attorney be appointed by the court to represent a criminal defendant who is unable to procure the services of an attorney himself. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). And for more than fifty years, it has also been settled that the Sixth Amendment right to counsel is not forfeitable, but may only be waived by the conscious and intelligent decision of the person to whom it belongs. Id.

During most of our country's legal history, this important constitutional right was applicable only in trials before the federal courts. Criminal defendants in the state courts were, as a general rule, guaranteed legal representation by the United States Constitution only if, under the Due Process Clause of the Fourteenth Amendment, the trial would otherwise be "offensive to the common and fundamental ideas of fairness and right[.]" Betts v. Brady, 316 U.S. 455, 473, 62 S.Ct. 1252, 1262, 86 L.Ed. 1595 (1942). In capital cases, this meant that the Fourteenth Amendment guaranteed appointed counsel for virtually every defendant who could not afford one himself. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). In noncapital cases, however, the Due Process Clause was not construed to require quite so much protection. In such contexts, it usually assured the appointment of an attorney only for those who were unable to make an adequate defense by themselves because of some extreme incapacity, such as ignorance, mental deficiency, or illiteracy. See, e.g., Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957). But, in any case, the right to counsel under the Fourteenth Amendment was considered so important that its benefit, like that of its Sixth Amendment counterpart, could not be forfeited by inaction alone. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). Rather, it too was to be implemented at trial except in cases where the defendant had knowingly and voluntarily given it up.

Accordingly, when the Sixth Amendment right to counsel was eventually construed in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), fully to reach most state criminal trials through the Fourteenth Amendment, there existed no reason to suppose that the manner of its implementation had been affected at all. See Moore v. Michigan, 355 U.S. at 161, 78 S.Ct. at 195. Because the right to counsel under both the Sixth and the Fourteenth Amendments had always been subject to the same waiver rules before Gideon, it was apparent that those rules would also apply afterwards. Thus,

[t]he constitutional right of an accused to be represented by counsel invokes, of itself, the protection of the trial court, in which the accused--whose life or liberty is at stake--is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is a proper waiver by the accused.

Johnson v. Zerbst, 304 U.S. at 465, 58 S.Ct. at 1023.

We are not aware of any federal or state decisional law which has since compromised this rule or which might otherwise support a belief that the Sixth Amendment right to counsel is forfeited by a failure to request its implementation in the trial court. The United States Supreme Court has made it clear that the right to an attorney is a critical feature of the adversary system, not only guaranteed expressly by the Sixth Amendment, but also implicit in the Due Process Clause of the Fourteenth. Because it is a personal right of the accused, there is a concomitant right to waive it. But its fundamental place in our adjudicatory system has led to an insistence that its waiver not be lightly inferred. Boyd v. Dutton, 405 U.S. 1, 3, 92 S.Ct. 759, 760-61, 30 L.Ed.2d 755 (1972). Accordingly, while it is not indispensable that waivers be reduced to writing, or even that they be explicit, it is essential that no criminal defendant be subjected to formal adversarial judicial proceedings without a lawyer unless there is a basis for concluding that he knowingly, voluntarily, and intelligently relinquished or abandoned his right to the assistance of counsel. Cf. North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); Williams v. State, 566 S.W.2d 919, 923 (Tex.Crim.App.1978). Plainly, such a conclusion cannot rationally be reached on the basis only of a failure to request that a lawyer be appointed. Swenson v. Bosler, 386 U.S. 258, 260, 87 S.Ct. 996, 998, 18 L.Ed.2d 33 (1967); Ex parte Rains, 555 S.W.2d 478, 482 (Tex.Crim.App.1977).

Texas law is not to the contrary. The fact that trial courts are directed by statute in Texas to appoint attorneys at the request of indigent defendants does not mean that pending criminal charges may be litigated without the express or implied permission of defendants unrepresented by counsel. To so hold would violate not only the Sixth Amendment, but also the broad statutory scheme adopted for the implementation of our own constitutional and statutory rights to the assistance of counsel. See Tex. Const. art. I, § 10; Tex.Code Crim.P.Ann. arts. 1.05, 1.051. Rather, the evident purport of article 1.051(c) insofar as it directs the trial judge to appoint counsel "[i]f an indigent defendant is entitled to and requests appointed counsel" is twofold. It first means that an accused is not entitled to have counsel provided at government expense unless he can prove that he is indigent. See also Tex.Code Crim.P.Ann. art. 26.04. Cf. Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971). It also means that counsel will not be appointed to represent him in any case unless he wishes it. Burgess v. State, 816 S.W.2d 424 (Tex.Crim.App.1991). See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). ^* The Texas statutory scheme, consistent with Sixth Amendment requirements, thus plainly imposes upon trial judges the principle obligation to conduct such inquiry as may be necessary to determine whether an accused desires and is eligible for the appointment of an attorney.

The appearance of a criminal defendant in court without counsel,...