Rodriguez v. State

WOODLEY, Judge,

(dissenting).

I am in full accord with the proposition that in appointing counsel the court should act in such a way that both the defendant and the state will be impartially protected, and that the court should see that counsel assigned has sufficient ability and experience fairly to represent the defendant, to present his defense and to protect his rights.

I am also in full accord with the majority opinion which says that both the trial judge and appointed counsel acted in good faith and that no censure or blame is to be visited upon them.

Reversal is ordered upon the conclusion of the majority that the record shows that appointed counsel, who complied with his assignment to the best of his ability and in a manner that the majority find leaves him free of blame or censure, did not have sufficient ability and experience to represent his client, to present his defense and to protect his rights.

The majority opinion sets the qualifications of an attorney who performs the duty of representing an indigent accused for the meager fee paid by the county, or without fee, at a higher standard than those necessary for such attorney to possess in order to represent clients who may engage his services and pay him an adequate fee. It sets the qualifications of an attorney representing an indigent accused charged with violating the uniform narcotic drug act at a higher minimum than an attorney representing an indigent client charged with rape, robbery or murder. It appears to relieve from the duty of representing indigent defendants charged with narcotic law violations lawyers who have not previously seen fit to accept employment from such defendants.

Above all, the majority conclude that the lawyer appointed was without sufficient ability to accept appointment to represent a defendant though he had been a practicing lawyer for four years and, under the Constitution of Texas was qualified to be the district judge whose duty it is to make such appointments.

It is apparent to me that the facts set out in the opinion are not proof that appointed counsel was not competent to represent his client. All of the matters pointed out appear to me to be matters upon which lawyers of experience are called to exercise judgment, and to follow trial techniques that sometimes prove to be detrimental rather than beneficial to their clients.

Appellant had counsel of his choice before and after the trial. Who can say that either would have done him greater service? He could have taken 5 years, but appellant said he was not guilty. He could have insisted that his client not take the stand and omitted to call his wife, but had he done so his conviction would no doubt have been affirmed.

I respectfully dissent.