Polk v. State

CLINTON, Judge,

concurring.

Though there was a great deal of viewing with alarm as the majority opinion was delivered in Ayala v. State, 633 S.W.2d 526 (Tex.Cr.App.1982), see Concurring Opinion by the writer and Concurring and Dissenting Opinion by Judge Teague, much of it was prospective, a harbinger of “mischief” to come. Now, however, the Court is presented with an opportunity to reexamine Ayala for its ramifications in a somewhat different context. Happily the Court seizes the moment, but in my judgment the majority opinion does not respond adequately to the dissenting opinion, nor does it treat fully enough the matter of statutory construction to reach the conclusion that this cause must be remanded for appointment of appellate counsel. Thus I write of those things.

Despite its “very high potential for much low mischief,” Ayala, supra, at 528, what the Court actually found and concluded is narrow in its impact. The findings are:

“The United States Constitution does not impose a duty on appointed counsel to file a petition for discretionary review by this Court.
State law imposes no such duty, either. See V.A.C.C.P., Articles 26.04 and 26.05.”

*412The conclusion is:

“This Appellant had no right to ‘demand’ that his appointed counsel file a petition for discretionary review, and counsel had no duty to file it.”1

In the case at bar appellant has prepared and presented pro se his petition for discretionary review, and the Court has granted it. Thus, the fine point made in Ayala is not in this case, and it need not further concern us here. Whether as a matter of State law Ayala correctly decided the point may be left for another day. Accordingly, I now treat the conclusion reached by the majority — “that it is appropriate to appoint an attorney at this stage of the proceedings.”

The first problem is to determine what authority enables this Court to cause the trial court to appoint an attorney to represent appellant after his petition for discretionary review has been granted. Following the lead of Justice Rehnquist in Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), the majority looks for and finds “a matter of legislative choice.”

However, essentially what it comes up with is Article 26.05, Y.A.C.C.P. and, standing alone, that seems to be a slender reed. Let us search elsewhere, as well.

From the Old Code through the 1925 code of criminal procedure, arraignment was held only in a capital case. Article 491 in the latter code. And since former article 494 provided that when an accused is before a court for arraignment without counsel and it appears he is too poor to hire one, the judge “shall appoint one or two practicing attorneys to defend him,” the Court uniformly held that only in a capital case must counsel be appointed. E.g., Pennington v. The State, 13 Tex.App. 44, 46 (Ct.App.1892); Mass v. State, 81 S.W. 45 (Tex.Cr.R.1904) and Mass v. State, 81 S.W. 46 (Tex.Cr.R.1904); Burden v. State, 70 Tex.Cr.R. 349, 156 S.W. 1196, 1197 (1913); Cummings v. State, 104 Tex.Cr.R. 117, 282 S.W. 227 (1926); Hill v. State, 166 Tex.Cr.R. 13, 310 S.W.2d 588 (1958); Martinez v. State, 167 Tex.Cr.R. 97, 318 S.W.2d 66, 73 (1958). While the usual practice was to appoint counsel for an indigent accused charged with an ordinary felony, the matter was one of judicial discretion, Mass v. State, supra, at 45; Pennington v. The State, supra; and whether to appoint counsel in other felony trials depended upon the facts of each given case, e.g., Ex parte Bushnell, 172 Tex.Cr.R. 60, 353 S.W.2d 438, 441 (1962); Ex parte Epperson, 153 Tex.Cr.R. 578, 223 S.W.2d 790 (1949); Parsons v. State, 153 Tex.Cr.R. 157, 218 S.W.2d 202 (1949).

Nevertheless, by Acts 1951, 32nd Leg., p. 25, ch. 19 (article 494a, C.C.P. 1925, as amended), the Legislature provided for payment of counsel “appointed pursuant to law” to defend an accused “in any felony case” at the discretion of the trial judge, and for the first time ever sanctioned fees for appellate counsel, viz:

“Provided, further, that in all cases wherein a bona fide appeal is actually prosecuted to a final conclusion, each appointed counsel may be paid Twenty-five Dollars ($25) for such appeal.”

“The fact that there is no law providing for the payment of counsel appointed to defend persons too poor to employ counsel in criminal cases” was acknowledged and given as the reason for an emergency and an imperative public necessity. Id., § 3.

Even so, the Court still held that former article 494 was not applicable to trial of a felony case less than capital. Hill v. State, 166 Tex.Cr.R. 13, 310 S.W.2d 588 (1958). Nor even in a capital case was appointed counsel obliged to take an appeal. Savage v. State, 155 Tex.Cr.R. 576, 237 S.W.2d 315 *413(1951); Spalding v. State, 137 Tex.Cr.R. 329, 127 S.W.2d 457 (1939).

Directly at odds with such decisions of the Court as Hill v. State, supra, in 1959 the Legislature amended both article 494, and article 494a, id. The former, Acts 1959, 56th Leg., p. 1061, ch. 229, provided that when made known to the court “at an arraignment or any other time that an accused charged with a felony is too poor to employ a counsel, the court shall appoint one (1) or more attorneys to defend him.” The emergency clause made the legislative concern clear: “The fact that Article 494 only applied to capital cases and does not apply to ordinary felonies creates an emergency ...” Contemporaneously, the latter was amended by Acts 1959, 56th Leg., 2d C.S., p. 147, ch. 81, to increase fees for counsel appointed “to defend ... in any felony case” and “in all cases wherein a bona fide appeal is actually prosecuted to a final conclusion ...;” and, again, the emergency clause declares that “present laws regarding fees for attorneys 'representing indigents who are accused of felony offenses are inadequate ...”

Of legislative intent, there can be no doubt. It insisted that an indigent accused be represented by appointed counsel at trial and on appeal. The notion that counsel be appointed “to defend” contemplated an appeal, if need be, for which counsel was to be paid an additional fee to prosecute it “to a final conclusion.” The year was 1959. How the Court reacted to such a clear expression of legislative intent has not been determined, for there does not appear to be any case construing the amended statutes in the relevant period of time before the matter was resolved under the Constitution.

Constitutionally, the Supreme Court of the United States held in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), that an indigent accused had the right to an attorney at trial for a felony offense, and in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), that an indigent appellant is entitled to assistance of appointed counsel on appeal — if an appeal is a matter of right. Promptly, the Court got Gideon’s message. See, e.g., Ex parte Bushnell, 375 S.W.2d 720 (Tex.Cr.App.1964); Ex parte Davis, 379 S.W.2d 922 (Tex.Cr.App.1964) and cases collected therein.

Soon thereafter, with reference to appointed trial counsel continuing to represent his client on appeal, the late Presiding Judge Woodley made the following pronouncement for the Court:

“We are in accord with the view ... that trial counsel, having participated in the trial itself, is best qualified to prosecute an appeal and should not be permitted to withdraw from the case before the record on appeal has been perfected, if then.”

Dyches v. State, 382 S.W.2d 928, 929 (Tex.Cr.App.1964). He made no reference to Douglas v. California, supra.

In the wake of Gideon and Douglas and admittedly influenced by those decisions, among others, the Special Committee of the State Bar of Texas for the Revision of the Code of Criminal Procedure refined an earlier product and submitted its recommended changes to the 59th Legislature. Introduction to 1965 Revision Texas Code of Criminal Procedure, 1 Vernon’s Code of Criminal Procedure xv, at xix-xx; Interpretative Commentary and Special Commentary to Article 26.04. To ensure constitutional guarantees were implemented, Article 26.01 was amended to require an arraignment in all cases of felony and misdemean- or punishable by imprisonment. Special Commentary to Article 26.01 and Interpretative Commentary, supra. Former article 494 was modified to have the court make a determination of indigency at arraignment “or at any time prior to arraignment;” old article 494a was strengthened by increasing fees for appointed counsel and making payment mandatory.

Article 26.04 continued to declare that an appointed counsel was “to defend” the accused, and the new format of Section 1 of Article 26.05 provided, inter alia:

*414“Sec. 1. A counsel appointed to defend a person ... shall be paid ... according to the following schedule:
(a) For each day in trial court representing the accused ...
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(d) For the prosecution to a final conclusion of a bona fide appeal to the Court of Criminal Appeals ...”

Again, within the scope of defending an accused the Legislature included prosecuting an appeal “to a final conclusion.”

Those legislative changes seem to have gone unnoticed by the bench and the bar— concentration focused on Douglas v. California and its progeny. See, e.g., Ex parte Engle, 418 S.W.2d 671, 675-676 (Tex.Cr.App.1967) and Ex parte Breen, 420 S.W.2d 932 (Tex.Cr.App.1967). By 1968 the lesson of Douglas had been learned well, and the Court routinely abated an appeal in which briefs had not been filed “[s]o that this indigent appellant not be deprived of aid of counsel on appeal and an adequate appellate review,” Garza v. State, 433 S.W.2d 428 (Tex.Cr.App.1968); Martin v. State, 441 S.W.2d 535 (Tex.Cr.App.1969); Jackson v. State, 447 S.W.2d 922 (Tex.Cr.App.1969); and many others thereafter so long as the Court had jurisdiction of direct appeal in all felony cases.

We may attribute to the Legislature a full awareness of the settled constitutional proposition “that appointment of counsel for an indigent defendant is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected,” Mempha v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 257, 19 L.Ed.2d 336 (1967), tempered by the holding under the Fourteenth Amendment in Ross v. Mof-fitt, supra, (a state is not required to provide services of counsel to seek discretionary review beyond an appeal of right, but is not precluded from making counsel available at all stages of judicial review), as well an understanding of all those developments in Texas regarding representation by appointed counsel at trial and on appeal chronicled ante, when it came to consider and then enact legislation to implement constitutional amendments establishing our present appellate hierarchy in the criminal system of this State. Allen Sales & Servicenter, Inc. v. Ryan, 525 S.W.2d 863, 866 (Tex.1975); Townsend v. State, 427 S.W.2d 55, 62 (Tex.Cr.App.1968).

Significant, I believe, is that the Legislature did not make any change in Article 26.04 — counsel was still to be appointed “to defend” an accused, without limitation. And the only addition to Article 26.05 of any consequence regarding the problem now confronting the Court is the insertion of “a court of appeals or” in subsection (e). Thus, is a minimum fee provided for “the prosecution to a final conclusion of a bona fide appeal to a court of appeals or the Court of Criminal Appeals ...”

Summing up what has been found and discussed, in 1951 the Legislature conceived the proposition that “to defend” an accused includes “a bona fide appeal ... actually prosecuted to a final conclusion,” and since then the Legislature has consistently persevered to effectuate that proposition by providing assistance of appointed and modestly paid counsel to defend every person accused of all but a petty offense, including taking an appeal if so advised— before and after such provision was held to be constitutionally mandated. When it restructured our appellate system in 1981, the Legislature held to the concept and retained statutory provisions that embodied that proposition.

Thus, under Article 26.04, “to defend” still contemplates an appeal and, now, also discretionary review by this Court; and, under Article 26.05, to prosecute one “to a final conclusion” extends to whatever action this Court takes in exercise of its discretionary review jurisdiction. Having already granted review in this cause pursuant to Article 44.45, V.A.C.C.P., we are fully empowered to “enter any other order, as the law and nature of the case may require,” Article 44.24(b), id., including an order abating further action in this Court and remanding the cause to the trial court for it to exercise that authority found in the statutes to appoint counsel to prepare *415and file a brief herein, and otherwise to provide aid and assistance in behalf of appellant in further prosecution of review by this Court of the decision of the court of appeals. Articles 44.45 and 44.33, Y.A.C. C.P., and Tex.Cr.App. Rule 306(a) and (d).

Accordingly, for the reasons given I join the order of the Court.

ONION, P.J., and CAMPBELL, J., join.

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