concurring.
I believe the Court is correct in adopting the “critical stage” analysis for determining when an accused is entitled to counsel under the Sixth Amendment. However, I would further hold that the Preliminary Initial Appearance (PIA) hearing under Tex.Code Crim.Proc.Ann. art. 15.17 constitutes a “critical stage” at which the Sixth Amendment right to counsel has attached.
I.
The Supreme Court has held that the right to counsel under the Sixth Amendment attaches at or after the initiation of adversary judicial proceedings against the defendant. United States v. Gouveia, 467 U.S. 180, 187, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146 (1984); Estelle v. Smith, 451 U.S. 454, 469-470, 101 S.Ct. 1866, 1876, 68 L.Ed.2d 359 (1981); Kirby v. Illinois, 406 U.S. 682, 688-689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972). And the Court has acknowledged that certain pretrial “critical stages” may constitute such adversary judicial proceedings sufficient to trigger a defendant’s right to counsel. See, Gouveia, 467 U.S. at 189, 104 S.Ct. at 2298 (citing United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)). See also, Coleman v. Alabama, 399 U.S. 1, 7, 90 S.Ct. 1999, 2003, 26 L.Ed.2d 387 (1970). Whether a pre-trial proceeding constitutes an adversary judicial proceeding essentially depends upon “[whether] the accused [is] confronted with both the intricacies of the law and the advocacy of the public prosecutor.” Gouveia, 467 U.S. at 188-189, 104 S.Ct. at 2298 (quoting United States v. Ash, 413 U.S. 300, 309, 93 S.Ct. 2568, 2573, 37 L.Ed.2d 619 (1973)). However, the Supreme Court has declined to establish a “bright-line” rule for when adversary judicial proceedings begin and has instead left this decision to state courts. See, Gouveia, 467 U.S. at 187-189,104 S.Ct. at 2297-2298. See also, Moore v. Illinois, 434 U.S. 220, 228, 98 S.Ct. 458, 464, 54 L.Ed.2d 424 (1977), Fuller v. State, 829 S.W.2d 191, 205 (Tex.CrApp.1992); and, State v. Barnhill, 657 S.W.2d 131, 132 (Tex.Cr.App.1983). Consequently, it is incumbent upon this Court to determine what point in the proceedings constitutes a “critical stage.”
II.
Tex.Code Crim.Proc.Ann. art. 15.17 clearly provides for the right to counsel at a defendant’s PIA hearing. Art. 15.17(a) reads, in pertinent part:
*726In each case enumerated in this Code, the person making the arrest shall without unnecessary delay take the person arrested or have him taken before some magistrate of the county where the accused was arrested ... The magistrate shall inform in clear language the person arrested ... of the accusation against him and of any affidavit filed therewith, of his right to retain counsel, of his right to remain silent, of his right to have an attorney present during any interview with peace officers or attorneys representing the state, of his right to terminate the interview at any time, of his right to request the appointment of counsel if he is indigent and cannot afford counsel, and of his right to have an examining trial. He shall also inform the person arrested that he is not required to make a statement and that any statement made by him may be used against him. The magistrate shall allow the person arrested reasonable time and opportii-nity to consult counsel1 and shall admit the person arrested to bail if allowed by law.2
Art. 15.17 implicates both the Fifth and Sixth Amendments by requiring a magistrate to inform a defendant of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966), and allowing the defendant the opportunity to consult with counsel. Because a defendant’s Miranda rights stem from the Fifth Amendment’s prohibition against self-incrimination during custodial interrogation, see, Gouveia, 467 U.S. 188 n. 5, 104 S.Ct. 2297 n. 5; and Kirby, 406 U.S. at 688, 92 S.Ct. at 1881, it follows that a defendant’s right “to consult counsel” arises independently from the Fifth Amendment. Thus, as the Court of Appeals observed:
... The PIA hearing is merely a procedural bridge that spans the gulf between the right of a defendant to assistance of counsel and the actual appointment of counsel to represent the defendant. Though the hearing takes place after a defendant’s right to counsel has attached, the hearing serves the purpose of giving practical effect to an abstract protection....
Oliver v. State, 813 S.W.2d 762, 764-765 (Tex.App.—Houston [1st Dist.] 1991), rev’d on other grounds, 872 S.W.2d 713 (Tex.Cr, App. delivered this day).
As the majority recognizes, our decisions on when adversary judicial proceedings begin have been inconsistent. Majority opinion, pp. 719-720. However, we acknowledged in Fuller v. State, 829 S.W.2d 191 (Tex.Cr.App.1992), that the PIA hearing may constitute just such a “critical stage” at which point a defendant’s right to counsel has attached. In Fuller, we recited when an adversary judicial proceeding begins:
... In Texas, a criminal prosecution is variously considered to be in progress after the accused has been formally arrested and taken before a magistrate, or when he has been indicted or charged by complaint and information with a criminal offense.
Id., 829 S.W.2d at 205. Consequently, we are not without a basis to conclude a PIA hearing is a sufficiently “critical stage” to constitute an adversary judicial proceeding, at which point the defendant is entitled to the assistance of counsel. See also, Lucas v. State, 791 S.W.2d 35, 45 (Tex.Cr.App.1989); Janecka v. State, 739 S.W.2d 813, 827 (Tex.Cr.App.1987); Nehman v. State, 721 S.W.2d 319 (Tex.Cr.App.1986); and, Barnhill v. State, 657 S.W.2d 131, 132 (Tex.Cr.App.1983) (panel op.). This is especially true where, as in the instant case, the PIA hearing is held after a formal complaint is filed.3 See, United States v. Wade, 388 U.S. at 226, 87 S.Ct. at 1932 (“critical stage” normally occurs after a criminal complaint is filed); and, Barnhill, 657 S.W.2d at 132.
III.
The Court of Appeals relied upon Nehman v. State, 721 S.W.2d 319 (Tex.Cr.App.1986), to hold appellant was entitled to counsel at the PIA hearing. I believe that holding was correct. In Nehman, the defendant was ar*727rested in Iowa as a suspect in a homicide in Amarillo, Texas. An arrest warrant was issued in Amarillo and two police officers trav-elled to Iowa to escort Nehman to Texas. Upon taking him into custody, the officers informed Nehman of his Miranda rights. Id. at 320. After returning to Amarillo, Nehman indicated that he wished to give a written statement concerning the homicide. Id., at 320-321. As the statement was being prepared, Nehman was taken for his PIA hearing, pursuant to art. 15.17, where the magistrate informed Nehman of his Miranda rights and of his right to have an attorney appointed to represent him. At the PIA hearing, Nehman requested that counsel be appointed. Id., at 321. After the hearing, but prior to receiving counsel, Nehman was returned to the police department where he signed his statement. Id.
On appeal, Nehman claimed the statement was obtained in violation of the Fifth and Sixth Amendments. We declined to address the Fifth Amendment claim and focused instead on Nehman’s Sixth Amendment claim, holding: “There is no question that adversarial proceedings had been initiated, and thus, that appellant’s Sixth Amendment right to counsel had attached.” Id., at 322. We held Nehman’s statement was obtained in violation of the Sixth Amendment. Id., at 323. Therefore, Nehman clearly stands for the proposition that a PIA hearing is a “critical stage” at which point a defendant’s right to counsel under the Sixth Amendment has attached.
In holding that the Court of Appeals erred in concluding appellant’s PIA hearing was a “critical stage,” the majority entirely disregards Nehman. As stated above, I believe the Court of Appeals correctly relied on Nehman. In the instant case, as in Nehman, appellant’s PIA hearing was conducted after the complaint was filed but before indictment. See, Nehman, 721 S.W.2d at 323 n. 2. Insofar as the majority fails to distinguish or overrule Nehman, I believe that Nehman is controlling. Moreover, at least three courts of appeals have relied upon Nehman to hold that a defendant’s PIA hearing constitutes a “critical stage” of the proceedings against the defendant. See, State v. Hernandez, 842 S.W.2d 306, 311 (Tex.App.—San Antonio 1992, pet. ref'd); Alford v. State, 788 S.W.2d 436, 439 (Tex.App.—Houston [1st Dist.] 1990); and, Higginbotham v. State, 769 S.W.2d 265, 268 (Tex.App—Houston [14th Dist.] 1989), rev’d on other grounds, 807 S.W.2d 732 (Tex.Cr.App.1991). Therefore, I would hold that a PIA hearing under art. 15.17 represents a “critical stage” at which point a defendant’s right to the assistance of counsel has attached.
IV.
In Oliver v. State, 872 S.W.2d 713 (Tex.Cr.App. delivered this day), we held that a defendant does not waive his right to counsel at a pre-indictment hearing merely by failing to affirmatively request counsel. Id., 872 S.W.2d at 715 (citing Swenson v. Bosler, 386 U.S. 258, 260, 87 S.Ct. 996, 998, 18 L.Ed.2d 33 (1967); and Ex parte Rains, 555 S.W.2d 478, 482 (Tex.Cr.App.1977)). See also, Barker v. Wingo, 407 U.S. 514, 525, 92 S.Ct. 2182, 2189, 33 L.Ed.2d 101 (1972) (no presumption of waiver of constitutional right from inaction). Instead, for there to be a valid waiver of counsel, the record must show a defendant affirmatively declined counsel. See, Oliver, 872 S.W.2d at 715. See also, Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962). It follows then, in the instant case, that appellant did not waive his right to counsel simply by failing to request counsel at the PIA hearing.
Since appellant was entitled to counsel at the PIA hearing it is necessary to determine whether he was harmed by the failure to provide counsel. Violations of the Sixth Amendment are subject to a “harmless error” analysis. Satterwhite v. Texas, 486 U.S. 249, 257, 108 S.Ct. 1792, 1798, 100 L.Ed.2d 284 (1988); and, Sterling v. State, 830 S.W.2d 114, 121 (Tex.Cr.App.1992). In conducting such an analysis, we look to see whether the failure to provide appellant with counsel at his PIA hearing contributed to either his conviction or punishment. Tex. R.App.P. Rule 81(b)(2).4 Compare, Hernan*728dez v. State, 808 S.W.2d 536, 539 (Tex.App.—Waco 1991); and, Whittington v. State, 781 S.W.2d 338, 341 (Tex.App.—Houston [14th Dist.] 1989, pet. ref'd). The record indicates that the magistrate made a probable cause determination at the PIA hearing. While it is possible that counsel could have persuaded the magistrate that probable cause was lacking, the grand jury’s subsequent indictment of appellant would have preempted the magistrate’s findings. See, Whittington, 781 S.W.2d at 341. Moreover, the record indicates appellant received counsel the day after the PIA hearing.5 We find that appellant’s failure to receive counsel at his PIA hearing did not contribute to either appellant’s conviction or punishment. The error, therefore, was harmless.6
With these comments, I join only the judgment of the Court.
. All emphasis is supplied unless otherwise indicated.
. A PIA hearing pursuant to art. 15.17 is distinct from an examining trial under art. 16.01.
.The complaint in the instant case was filed March 3, 1990, the PIA hearing was held on March 4, and counsel was appointed to represent appellant on March 5.
. In Mallory v. State, 752 S.W.2d 566, 569-570 (Tex.Cr.App.1988), we recognized that Tex. R.App.P. 81(b)(2) is essentially the codification of the federal "harmless error” standard.
. See, n. 3, supra.
. Appellant contends harm invariably results from the failure to appoint counsel at the PIA hearing because unrepresented indigent defendants "lose their time, jobs, housing ... [and] ... all those essentials that non-indigents with lawyers pursue as a matter of survival....” Appellant’s Supplemental Brief and Response, pg. 33.
Initially, I note that the record does not indicate that appellant suffered these grievances. However, even if the record supported appellant’s claims, the harm of which appellant complains is not the type of "harm” contemplated by the "harmless error” rule. The loss of one’s employment, etc, while most unfortunate, makes no contribution to a defendant’s conviction or punishment. See, Rule 81(b)(2). Consequently, the failure to appoint counsel in the instant case was harmless in a Rule 81(B)(2) context because the error made no contribution either to appellant’s conviction or punishment.