Weiner v. Dial

ONION, Presiding Judge,

concurring.1

The question presented by this proceeding is whether counsel, appointed for the purpose of an appeal of a felony conviction and who has been compensated for such appeal, is entitled to additional compensation for the purported appeal of an order refusing to issue a writ of habeas corpus to reduce bail (pending appeal of felony conviction). Petitioner contends there are two separate appeals for which he is entitled to separate fees.

I agree that the application for writ of mandamus should be denied, but I cannot agree that this court should do so on the basis that the order of appointment of appellate counsel was not broad enough to encompass the other proceeding.2 The appointment of appellate counsel squarely *789places upon counsel the awesome responsibility of taking all actions necessary on appeal to assure the indigent appellant his rights and to protect his interests. Counsel cannot be delimited by what is contained or not contained in the order of appointment. There are other reasons, however, to deny the mandamus application.

Robert David Williams was convicted of aggravated assault on a peace officer and assessed punishment of five years’ imprisonment. Notice of appeal was given. Apparently Williams was held without bail following conviction. Williams filed an application for writ of habeas corpus and as a result bail on appeal was set at $25,000.00. On January 21, Williams filed a second “application for writ of habeas corpus” alleging that the bail on appeal of $25,000.00 was excessive. The application was “Denied without hearing” on January 21, 1982, by the respondent. On January 27, 1982, Oliver C. Sutton, Jr., attorney of record for Williams, filed a motion to withdraw as counsel and suggested that the petitioner Weiner had consented to handle the appeal. On January 28, 1982, the respondent permitted Sutton to withdraw as counsel and petitioner Weiner was appointed to represent Williams on appeal. On February 2, 1982, Williams filed a written “Notice of Appeal (Habeas Corpus)” in which he gave notice of appeal to the Court of Appeals “on his application for writ of habeas corpus, which was filed January 21,1982 and which was denied without a hearing .... ” On the same date Williams and petitioner Weiner filed a motion for the appointment of counsel on appeal from the order denying the habeas corpus application without a hearing. Attorney Weiner volunteered to accept the appointment. On February 3, 1982, the respondent denied the motion requesting appointment of counsel.

It appears that petitioner Weiner was notified by the San Antonio Court of Appeals of oral argument and submission of the appeal relating to the habeas corpus application in Cause No. 04-82-00056-CR. He appeared and made oral argument. The Court of Appeals vacated the order entered by respondent and remanded the cause for a hearing on February 22, 1982. See Ex parte Williams, 630 S.W.2d 803 (Tex.App.-San Antonio 1982). Petition for Discretionary Review was refused on May 5, 1982.

The record is silent as to what then transpired as to the matter of bail pending appeal. It does appear that the appeal of the conviction for aggravated assault upon a peace officer is still pending in the San Antonio Court of Appeals. Petitioner has already been compensated $350.00 by Bexar County for his services in connection with this pending appeal upon approval of the respondent.

Subsequently, petitioner. Weiner sought additional payment for handling the appeal on the habeas corpus matter concerning bail. Being unsuccessful with the respondent, petitioner sought a writ of mandamus from the San Antonio Court of Appeals. Relief was denied in an unpublished per curiam panel opinion on December 8, 1982, on the ground that the court had only limited jurisdiction to issue a writ of mandamus to enforce its own jurisdiction. Petitioner has now filed an original application for a writ of mandamus in this court requesting that the respondent be ordered to pay him a fee of not less than $350.00 for the appeal of the habeas corpus proceeding seeking bail on appeal.

As is conceded throughout the record, the respondent refused the second application for writ of habeas corpus without a hearing. It is obvious that the respondent refused to issue or grant the writ of habeas corpus.3

There is no appeal from a refusal to issue or grant a writ of habeas corpus even after a hearing (to determine whether to grant the writ). Ex parte Clifford Noe, 646 S.W.2d 230 (Tex.Cr.App.1983); Ex parte Moorehouse, 614 S.W.2d 450 (Tex.Cr.App.1981); Ex parte Mayes, 538 S.W.2d 637 (Tex.Cr.App.1976); Ex parte Nichlos, 245 S.W.2d 704 (Tex.Cr.App.1952). See also Ex parte Hughes, 20 S.W.2d 1070 (Tex.Cr.App.*7901929); Ex parte Smith, 85 Tex.Cr.R. 649, 215 S.W. 299 (Tex.Cr.App.1919); Ex parte Blankenship, 57 S.W. 646 (Tex.Cr.App.1900); Article 44.34, Y.A.C.C.P., Note 5. The appellate courts do not have jurisdiction in such cases. Ex parte Nichlos, supra. See also Ex parte Wade, 147 Tex.Cr.R. 94, 178 S.W.2d 690 (Tex.Cr.App.1944); Ex parte Mayes, supra.

The pleadings were designated “application for writ of habeas corpus.” The application was denied “without a hearing.” “Notice of Appeal (Habeas Corpus)” was given from the denial of the “application for habeas corpus.” 4 In Ex parte Williams, 630 S.W.2d 803 (Tex.App.-San Antonio 1982), the Court of Appeals stated: “Applicant appeals from the denial of habeas corpus relief from allegedly excessive bail pending appeal. Tex.Code Crim.Pro.Ann. art. 44.34 (Vernon Supp.1982).”5 Despite the foregoing, the Court of Appeals ignored the well-established rule discussed above. In its panel opinion the court stated: “In this State the right to reasonable bail pending appeal is found in Tex.Code Crim.Pro. Ann. art. 44.04 (Vernon Supp.1982). We hold that to deny a hearing upon a convicted defendant’s motion for reduction of allegedly excessive bail constitutes an arbitrary and unreasonable action as does the denial of habeas corpus relief without a hearing.”

The court then recognized the two methods to obtain bail on appeal — by writ of habeas corpus and by Article 44.04, V.A.C. C.P., but made no distinction between the two in its ruling of vacating the trial court’s order and remanding the matter for a hearing.

It appears the Court of Appeals was in error and it appears that this court should have granted rather than refused the State’s petition for discretionary review which was then filed. Such action only heightened the confusion.

Some of the confusion arose in Ex parte Fowler, 573 S.W.2d 241 (Tex.Cr.App.1978), when this court held that the Court of Criminal Appeals would no longer review matters pertaining to bail pending appeal by habeas corpus since a specific right of appeal is provided by applicable statute (Article 44.04, §§ c, d and g, V.A.C.C.P., as amended Acts 1977, 65th Leg., p. 636, ch. 234). Ex parte Spaulding, 612 S.W.2d 509 (Tex.Cr.App.1981), adopted the concurring opinion in Ex parte Byers, 612 S.W.2d 534, 537 (Tex.Cr.App.1980), and held that review of matters pertaining to bail on appeal from criminal convictions will be considered by both habeas corpus proceedings and by the statutory method provided in Article 44.04, V.A.C.C.P.6

In response to the aforementioned State’s petition for discretionary review, the petitioner in his response thereto as attorney for Williams recognized his precarious position. He acknowledged that if the proceedings were considered as a habeas corpus appeal then Nichlos and Mayes, holding there is no appeal from the refusal to issue or grant a writ of habeas corpus, would carry great weight, but urged the court to consider the “appeal” as an appeal from a statutory motion for reduction of bail rather than a “writ” citing Basaldua v. State, 558 S.W.2d 2 (Tex.Cr.App.1977), where a purported appeal was considered an application for writ of habeas corpus.

In my opinion, the proceedings in question were habeas corpus proceedings. The respondent denied the habeas corpus application seeking a reduction in bail on appeal without a hearing. He refused to grant or issue the writ of habeas corpus. This action was not appealable. The respondent did not thereafter err in refusing to appoint *791petitioner to represent Williams on appeal of a matter that was not appealable. Respondent did not later err in refusing to order compensation to petitioner for said “appeal” after he had already been compensated for the appeal on the aggravated assault on a peace officer conviction. Clearly mandamus would not lie under these circumstances.

Even if the second “application for writ of habeas corpus” could be considered a motion to reduce bail on appeal under Article 44.04, supra, and that an appeal could be taken even if the court refused without a hearing to entertain the same, petitioner still would not be entitled to the relief sought. Mandamus is an extraordinary remedy. It will not issue unless it is reasonably necessary to the enforcement or establishment of the right that is sought to be secured. See 37 Tex.Jur.2d, Mandamus, §§ 2 and 7. Mandamus does not lie where the relator has another plain, effective and adequate remedy to obtain the relief sought. 37 Tex.Jur.2d, Mandamus, § 12, p. 599. Petitioner has not demonstrated that he does not have another plain and effective remedy to obtain the relief requested.

It is not necessary to further discuss whether mandamus could be also refused because a discretionary act or duty was involved which was not ministerial in character. See 37 Tex.Jur.2d, Mandamus, § 18, pp. 617-618.

While I agree with the majority that the application for writ of mandamus should be denied, I cannot agree with the reason advanced. The majority would deny the mandamus application on the basis that “the order appointing petitioner did not constitute an appointment to represent Williams in the bail habeas corpus appeal .... ”

I must express my concern about the implications of the holding. An order appointing counsel on appeal for an indigent defendant should not be required to itemize the steps that counsel is authorized to undertake on appeal. An indigent defendant is entitled to the effective assistance of counsel on appeal. Such counsel should not be limited or restrained in his undertaking by the failure of the appointment order to list every step he is authorized to take on the defendant’s behalf while the case is on appeal.

Since the majority appears to rely in part upon Article 26.04, V.A.C.C.P., for its conclusion, the following from Curry v. State, 488 S.W.2d 100, 103 (Tex.Cr.App.1972), becomes pertinent:

“While Article 26.04, Vernon’s Ann.C. C.P., relates to the appointment of trial counsel for indigents in felony and certain misdemeanor cases, nowhere in our statutes is there a requirement that counsel be appointed on appeal for an indigent person convicted of either a felony or a misdemeanor. Article 26.05, Vernon’s Ann.C.C.P., relating to compensation of appointed counsel in felony cases or misdemeanor cases ‘punishable by imprisonment’ or habeas corpus matters does contain the following sections:
“ ‘(e) For the prosecution to a final conclusion of a bona fide appeal to the Court of Criminal Appeals, a reasonable fee to be set by the court but in no event to be less than $350;
a ( * * * t
“While the statutes thus provide for compensation, the right to counsel on appeal must necessarily be of a constitutional nature.
“Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) extended the Sixth Amendment right to counsel to state criminal proceedings by virtue of the Fourteenth Amendment. Gideon dealt with trial counsel for an indigent in a felony case. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), decided on the same day as Gideon, held that an indigent has a state (sic) constitutional right to assigned counsel on his first appeal without regard to the merits of the appeal and regardless of the seriousness of the appeal. The holding was based primarily upon the due process clause of the Fourteenth Amendment.”

It is clear that Article 26.04, supra, relates to the necessity of appointment of trial counsel. It does not address itself to *792the appointment of counsel on appeal. The matter of appointment of counsel on appeal is a federal constitutional right, Douglas v. California, supra, for which compensation is provided in Article 26.05, supra. Article 26.04, supra, should not be used in the analysis of the question before this court.

While I do not agree as to the basis for denying the application for writ of mandamus, I concur in the result for the reasons earlier stated.

McCORMICK and MILLER, JJ., join this opinion.

. This court should take judicial notice that the Honorable Phil Chavarria, Jr., is now Judge of the 175th District Court of Bexar County. The style of this cause should be changed. The Honorable Preston Dial, Jr., is now an Associate Justice of the Fourth Court of Appeals in San Antonio.

. The “Order” permits previous counsel of record to withdraw, and states:

“It is further ordered that David Weiner be appointed as attorney of record for the Defendant, Robert Williams, in his stead.”

Such order was in response to a motion by previous counsel asking to withdraw and stating that petitioner Weiner had “agreed and consented to assume the Defendant’s, Robert Williams, appeal.”

. This is not a case where the trial court, after the filing of a habeas corpus application, grants or issues the writ of habeas corpus, and after a hearing, grants or denies relief.

. It does not appear that the notice of appeal was timely given even if the subject matter was appealable. Cf. Ex parte Fowler, 573 S.W.2d 241 (Tex.Cr.App.1978).

. Article 44.34, supra, deals with the procedure of preparing the appellate record in an appeal from an habeas corpus order.

.Article 44.04, supra, was amended by Acts 1981, 67th Leg., p. 813, ch. 291, § 125. Right of appeal is expressly accorded now to the Court of Appeals.