Polk v. State

OPINION GRANTING APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was convicted of attempted murder and punishment was assessed at 30 years confinement in the Texas Department of Corrections. On direct appeal, the Dallas Court of Appeals overruled appellant’s three grounds of error and affirmed the conviction in an unpublished opinion on January 12, 1984. We grant appellant’s petition for discretionary review on appellant’s third pro se ground of review and also remand to the trial court for, upon determination of appellant’s indigency, appointment of counsel.

Both at trial and on appeal, the incarcerated appellant was represented by an appointed attorney. In his pro se petition for discretionary review filed in this Court on February 21, 1984, appellant reiterates the original grounds of error and “advise[s] this Honorable Court that he is indigent without counsel.” After reviewing the opinion of the Court of Appeals, we hereby grant appellant’s petition for discretionary review on his third ground only. In addition, we abate this cause and remand it to the trial court so that an attorney may be appointed to represent appellant in filing a brief in this Court on his behalf.

In Ayala v. State, 633 S.W.2d 526 (Tex.Cr.App.1982), this Court adopted the holding in Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), that as a matter of federal constitutional law, an indigent defendant is not entitled to the appointment of counsel to assist him in filing a petition for discretionary review. We do not today question that holding. Our decision to remand is based instead on the facts of this case wherein a pro se petition for discretionary review has already been filed and we have agreed to review one of the grounds asserted in that petition. We find it unnecessary to discuss the constitutional ramifications of either Moffitt or Ayala in reaching our conclusion that it is appropriate to appoint an attorney at this stage of *410the proceedings. Instead, we rely solely on statutory authority.

In Moffitt, Justice Rehnquist concluded his majority opinion by noting, “We do not mean by this opinion to in any way discourage those states which have, as a matter of legislative choice, made counsel available to convicted defendants at all stages of judicial review.” Id., 417 U.S. at 618, 94 S.Ct. at 2447. We find that the Texas Legislature, as a matter of legislative choice, has provided for the appointment of counsel once a petition for discretionary review has been granted by this Court.

Although the Legislature has not specifically enacted legislation which requires that counsel be appointed at any stage of appellate proceedings,1 Art. 26.05 delineates those instances wherein the Legislature authorizes compensation of appointed counsel. Art. 26.05, in pertinent part, provides:

“Sec. 1. A counsel appointed to defend a person accused of a felony or a misdemeanor punishable by imprisonment, or to represent an indigent in a habeas corpus hearing, shall be paid from the general fund of the county in which the prosecution was instituted or habeas corpus hearing held, according to the following schedule:
“(e) For the prosecution to a final conclusion of a bona fide appeal to a court of appeals or the Court of Criminal Appeals, a reasonable fee to be set by the court but in no event to be less than $350;
“(f) For the prosecution to a final conclusion of a bona fide appeal to the Court of Criminal Appeals in a case where the death penalty has been assessed, a reasonable fee to be set by the Court but in no event to be less than $500.”2

Thus, Art. 26.05 specifically authorizes the compensation of appointed attorneys in the prosecution of bona fide appeals to their final conclusion before the Court of Criminal Appeals in two separate instances: in death penalty cases, Art. 26.05, Sec. 1(f), and perforce, in non-death penalty cases, Art. 26.05, Sec. 1(e).

Before 1981, when Texas adopted a two-tiered criminal appellate system, Art. 26.05, Sec. 1(e), did not, of course, mention “bona fide appeal[s] to a court of appeals.” When in coordination with the introduction of the new appellate system, the 67th Legislature amended Art. 26.05, Sec. 1(e), by Acts 1981, 67th Leg., p. 803, ch. 291, Sec. 106, eff. Sept. 1, 1981, the Legislature continued to provide compensation for appointed attorneys in prosecuting bona fide non-death penalty appeals to a final conclusion in the Court of Criminal Appeals. If the Legislature had intended that appointed attorneys were not to represent defendants before this Court except in death penalty appeals, then it would not have been necessary for Sec. 1(e) to retain the language authorizing the payment of appointed attorneys before the Court of Criminal Appeals. It could be argued that the language “or the Court of Criminal Appeals” was superfluous. Sound principles of statutory interpretation, however, require that a reviewing court presume that every word of the statute is used for a purpose. Ex parte Santellana, 606 S.W.2d 331 (Tex.Cr.App.1980). It is also presumed that language in the statute is used with a meaning and purpose. Alexander v. State, 84 Tex.Cr.R. 75, 204 S.W. 644 (1918).

Accordingly, we must assume that the Legislature by its actions foresaw three different types of appeals: bona fide death penalty appeals before the Court of Criminal Appeals; bona fide non-death penalty appeals before the appropriate court of appeals; and those bona fide non-death penalty appeals concluding before the Court of Criminal Appeals.

The determination then must focus on what constitutes a “bona fide” ap*411peal. Art. 37.071(f), V.A.C.C.P., in accordance with Tex Const. Art. V, Sec. 5, provides that a death penalty case will automatically be reviewed by this Court; consequently, Art. 26.05, Sec. 1(f) provides for the compensation of attorneys appointed to represent indigents in those appeals. Art. 44.08, V.A.C.C.P., in accordance with Tex. Const. Art. V, Sec. 6, provides that non-death penalty appeals are perfected to the appropriate court of appeals; hence, Art. 26.05, Sec. 1(e), provides for the compensation of attorneys appointed to represent indigents in those appeals. Art. 44.45, V.A.C.C.P., in accordance with Tex. Const., Art. V, Sec. 5, provides that the Court of Criminal Appeals, in its discretion, may review decisions of the courts of appeals. Once a petition for review has been granted, according to Art. 44.45, this Court can then “review the case.” Therefore, we interpret Art. 44.45 as providing that a “bona fide” non-death penalty appeal for purposes of Art. 26.05 is one in which this Court has exercised its discretion and granted review. Once review has been granted, whether on our own motion or that of the State or the appellant, our rules recognize that the issue is now contested and the parties are joined. Thus, Tex.Cr. App.R. 306 requires that both parties file briefs after the granting of review. As a matter of policy we have recognized that an organized, meaningful brief from both parties is essential to the thorough explication of the grounds to which we have granted review. Unquestionably, an attorney would be in a much better position to provide the kind of deliberate, studious attention that such a brief requires than would an indigent, incarcerated inmate. We interpret Art. 26.05 as the Legislature’s response to that need.

Accordingly, in conjunction with our decision today to grant appellant’s pro se petition for discretionary review on his third ground of review only, we hereby abate this appeal and remand this cause to the trial court3 to appoint an attorney to prosecute to a final conclusion the bona fide appeal in this case. Time limits imposed under Tex.Cr.App.R. 306(b) shall begin on the date of the appellate counsel’s appointment.4

McCORMICK, J., concurs in the result.

. Compare Art. 26.04, V.A.C.C.P., which requires the appointment of counsel at or before arraignment.

. All emphasis throughout this opinion is supplied by the author unless otherwise indicated.

. “It is not for this Court but for the trial court to appoint counsel on appeal to be paid under the provisions of Article 26.05, V.A.C.C.P.” Conrad v. State, 537 S.W.2d 755 (Tex.Cr.App.1976).

. We note that appellant was indigent at the time of appeal and is presently in the penitentiary. The trial court may make a finding of indigency on the record, as is. If on the basis of the record the trial court determines that the appellant is not indigent, then a hearing should be held to allow appellant the opportunity to establish his indigency.