Pizzitola v. State

• Decision Date: 20 November 1963
• Docket Number: No. 36107,36107
• Citation: 374 S.W.2d 446
• Parties: George PIZZITOLA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 446

374 S.W.2d 446

George PIZZITOLA, Appellant, v. The STATE of Texas, Appellee.

No. 36107.

Court of Criminal Appeals of Texas.

Nov. 20, 1963.

Rehearing Denied Jan. 22, 1964.

William H. Scott, Sr., William H. Scott, Jr., Houston, for appellant.

Frank Briscoe, Dist. Atty., Carl E. F. Dally and James C. Brough, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., of Austin, for the State.

McDONALD, Judge.

Appellant was charged by separate complaint and information, with two misdemeanor offenses, and by agreement of the parties was tried before the court at one time. In Cause No. 36,107, the case under consideration at this time, he was convicted of aggravated assault, a misdemeanor, and assessed the punishment of 90 days confinement in jail.

The cause is before this court without a statement of facts of the evidence adduced on the trial, and consequently, the sufficiency of the evidence is not before this court.

There is no verified pleading to support proof of denial of counsel, and exception to overruling of an unverified motion for new trial cannot be considered on appeal even though the trial court heard evidence thereon. Thomas v. State, 166 Tex.Cr.R. 584, 316 S.W.2d 741; Barnett v. State, 160 Tex.Cr.R. 622, 273 S.W.2d 878.

Appellant was represented by counsel, as a matter of record, from March 4, 1963, when his first amended motion for new trial signed by his attorney, was filed. This was 32 days before notice of appeal was given on April 5, 1963. A formal bill of exception could have been filed within 90 days from the date notice of appeal was given. Article 760d, Vernon's Texas C.C.P.

This court is thus left with nothing to consider relative to the trial court's denial of appellant's motion for new trial.

Finding no reversible error, the judgment of the trial court is affirmed.

ON APPELLANT'S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

The appellant urges that we were in error in holding that his claim of fundamental error in deprivation of counsel was not before us for review. We do not agree.

It is true that a denial of due process may be raised and urged by collateral attack after final conviction, as was done in Alcorta v. State of Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9. This does not alter the fact that appeals from convictions are to be decided upon the record from the trial court under the procedure provided by the statutes of this state.

In addition to the statutes referred to in our original opinion, we direct attention to Arts. 753 and 754 Vernon's Ann.C.C.P., which read in part:

'New trials, in cases of felony, shall be granted for the following causes, and for no other:

'1. Where the defendant has been tried in his absence, or has been denied counsel.' (Art. 753)

'New trials in misdemeanor cases may be granted for any cause specified in the preceding article, except that contained in subdivision one of said article.' (Art. 754)

Under these statutes the trial court did not error in overruling the motion for new trial based upon lack of counsel, this being a misdemeanor case.

In the light of the serious contention that lack of counsel to represent an indigent defendant in a misdemeanor case is a denial of a fundamental right under the Fourteenth Amendment of the United States Constitution which may be raised after conviction, we will discuss the appellant's claim of denial of due process.

The appellant, on motion for new trial, testified that he had been on bond for three months preceding the date of trial; that his mother was his bondsman; that he never called an attorney while on bond, made no request to the trial court to appoint counsel, and did not inform the trial court that he was unable to employ counsel. In addition, the record reveals that appellant was represented by counsel of his own choice on his motion for new trial and on appeal in the case at bar.

The appellant urges that the recent case of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, is applicable to the instant case. We do not construe such case to embrace the misdemeanor case at bar. This is especially so in view of the foregoing facts and circumstances. Such being the case, no denial of a constitutional right to counsel is shown.

Appellant's motion for rehearing is overruled.

MORRISON, Judge (Dissenting).

Since the rendition of our original opinion, my attention has been called to serveral cases which hold that the failure to appoint counsel for an indigent accused charged with a misdemeanor (which provides as punishment confinement in jail) raises a constitutional question. I would favor following the reasoning of the Fifth Circuit Court of Appeals in Glenn v. United States, 303 F.2d 536, wherein they said, 'The public is not obliged to furnish free legal help for a defendant who is earning sufficient income to provide his own', but find that in the case at bar appellant testified that he was unable to employ counsel, that he had been unemployed from the time he made bond until the trial and that when he was able to gain employment, it was 'relief work' on 'the boats'. The State offered no evidence in rebuttal.

The Supreme Court of Indiana as early as 1951 in Bolkovac v. State, 229 Ind. 294, 98 N.E.2d 250, recognized such rule and reversed a misdemeanor conviction where the punishment had been assessed at 180...