*1 four dif for a consolidation moved alleged in the four counts ferent robberies FOSTER, Appellant, Ronnie Lavarra single The trial. of the indictment day On the granted the motion. trial court The STATE began, appellant waived the trial by the tried by jury and elected No. 913-86. trial moved day, the State the same court. On Appeals Criminal II robbery alleged Count to dismiss indictment, grant court and the trial 1990. convicted The trial court the motion. ed remaining three robberies appellant on V.T. pled in the indictment. which were 29.02(a)(2). C.A., At the Penal Code Sec. stage, appellant pled not true penalty paragraphs. The enhancement both final appellant previously, court found offenses, felony V.T. ly convicted of two 12.42(d), C.A., and as Penal Code at three concurrent sessed his fifty year sentences. convictions. Foster v.
affirmed the Dist.1986). 713 S.W.2d . —1st appellant ar- Appeals, unconstitutionally denied gued that he was which took his to counsel at place he was a sentence charges. Appellant relied other unrelated 10 of the Texas Consti- both and on the Sixth Amendment tution re- The State United States Constitution. pro- adversary judicial sponded that formal com- ceedings robbery cases had not against appellant at the time menced rendering merit. lineup, his claim without agreed The Court appellant incarcerated Because State. (court ap- appointed on Neil C. McCabe his matter at the time of on an unrelated Houston, peal), for Appeals decided formal lineup, the Court of proceedings had not judicial Holmes, Jr., Dist. and Roe John B. against appellant the rob- commenced Brannon, Dist. At- Morris and Maria Asst. cases, Illinois, upon Kirby bery relying Houston, appellee. tys., 92 S.Ct. Austin, and Forte v. for the State. Foster, (Tex.Cr.App.1986). supra, at reason, appellant found to For this enjoyed no Sixth Amendment have lineup. As for APPELLANT’S PETITION ON Constitution, the claim FOR DISCRETIONARY I,Art. Sec. 10 Appeals stated that WHITE, Judge. delineate when specifically does not Foster, supra, counsel attaches. for rob from convictions Appeal is taken Seeing no a defen- trial, bery, enhanced. Prior to *2 386 CLINTON, protection Judge, dissenting. dant more the Texas Con- under enjoy than stitution he would considering Here to we are Constitution, Federal the Court of I, by Bill guaranteed Article § appellant’s “right held to counsel based of of Tex- Constitution State upon the Texas Constitution ... was not as. lineup.” Foster,
violated at the time of the
that
10 nor
granted
at 791. This
Content to note
Court
review
§
the issue
15.17,V.A.C.C.P.,
on
of
to counsel
“specif
Articles 1.05 and
lineup
Texas
under
law.
attaches,”
ically
this
delineates when
de
Houston
[1st]
In
McCambridge v.
S.W.2d
any
clared
to find
it was “unable
(Tex.Cr.App.1989),
held
this Court
that “un-
I,
upon
interpret
which to
der Art.
Sec. 10 of the Texas Constitu-
[§ 10]
tion,
stage
a critical
in the
process
greater
criminal
any
criminal defendant
charges
brought
does not occur
until
is given by
than
the United
Constitu
States
suspect.” McCambridge,
su-
tion,”
accordingly
then introduced
pra,
Only
“necessity
at 76.
at that time is
imposed
compelled.
of counsel” for a defendant
rule
to
denying the
counsel before
McCambridge, supra.
judicial proceedings
“formal
case,
undisputed
In
it is
the instant
had
commenced.” Foster v.
when the
conducted the
of
. —Hous
robbery suspects
is the
which
basis of this
1986).1
ton [1st]
appeal, appellant
two misde-
However,
in Forte v.
jail
meanor
sentences for
in-
(Tex.Cr.App.1988),
“re-
this Court
possession
toxicated
marihuana.
Illinois,”
ject[ed]
of Kirby
the fiction
These
misdemeanors were unrelated to
id.,
opted
stage”
for a “critical
the time of
instant robberies. At
the line-
analysis
pretrial
to determine
“whether
arrested,
up, appellant
not been
had
presented
confrontation
necessitates coun-
charged,
of the instant
indicted
presence
sel’s
so as to
a known
enjoyed
no
robberies.
to
Id.,
safeguard.”
at 138. Suffice
I,
counsel at this
under Art.
say
peculiarly
for reasons
McCambridge,
of the Texas Constitution.
statute,
“the time at
decided
Appellant’s
to a
fair
I,
an
is faced
the decision
accused
under
10 was not denied.
to a
test is not
of whether to submit
breath
appellant’s ground for
is
review
stage’
process
a ‘critical
of the criminal
judgment
overruled. The
Court
[prior
consultation with
necessitates
Appeals is affirmed.
suddenly
at 139.2 Then
counsel].”
TEAGUE, J.,
it recanted.
McCambridge
dissents.
one,
contrary in
"that the
counsel auto-
1. The
Forte v.
another
(Tex.Cr.App.1988)
matically
upon
suspects
over-
[sic]
Not until Wade
Supreme
tion.
Part
did the
This
never so
stage” as
the notion of a “critical
formalize
vouch-
to counsel
determining
circumscribed the
whether
a benchmark
ensured
presence
safed
Article
requires
Amendment
Ellis v.
by penal statute.
against violation
particular pretrial
at a
confronta-
bill,”
today’s
creating
purposes
decision
"police
and for
enactment of an infamous
*3
exclusively upon
rely
state law.”
placing
police force and
under direct
a state
440,
chief,
n. 1.
a minion of the
control of the state
in Hamilton
Court found as much
So also the
governor,
officers
all local law enforcement
Contrary
expressed
to a belief
v.
citizenry
throughout the state. The
reacted with
actually
"the Court was
concerned
in Forte that
opposition that the bill was re-
such vehement
right against
rather
the
self-incrimination
with
McKay, Making
pealed
Tex-
in 1873. See S.
the
counsel,”
reading
right
a closer
than the
epi-
24-40. That
as Constitution pertaining to Annie
of the matter
the facts
Wood,
the "attitude” of
sode no doubt contributed to
along
defendant Hamilton
arrested
with
framers, and there is evidence that it did:
the
counsel,
represented
153 S.W.
same
and
they
nature
restored the
to "demand the
1,
through
pages
335 to headnote
from
appeared
and cause
accusation”
the concern of the Court was with
shows that
deliberate,
along
with the
of her
affirmative denials
Republic,
see Declaration of
testify
she
forced to
to the
Sixth,
only to be abandoned in later
grand jury
intercourse with
that Hamilton had
constitutions;
added,
they
for the first time
also
mince
In that context the Court did not
her.
ever,
copy
Texans
"to have a
thereof.”
words, vis
sought
thus
themselves from
from these recitations of
"The conclusion
they
practices
be
to their
well knew to
inimical
beyond
to be
cavil that [law-
the record seems
rights.
yer]
attorney
of this wom-
Matthews was
Furthermore,
they
uniquely
adhered
an;
her,
employed by
that he had been
“right
provision
phrased
that de-
to counsel”
well,
they
when
were first
this defendant
monstrably
Sixth
was not drawn from the
jail;
prepared
placed in
that he
arrested and
Forte,
135,
pointed
As
out in
Amendment.
them,
prepare
and undertook to
bond for
heeded other
framers of the 1876 constitution
defense[.]_
answering
Before
[to
including
state constitutions
our own former
grand jury],
had the
to confer with
she
1845,
they
but the fact is that
constitution of
matters,
attorney about these
whether she
her
language
retained verbatim the
of Declaration
defendant,
Instead
was a witness or
or both.
appellant con-
Sixth as formulated in 1836. As
right guaranteed by
her this
demonstrates,
vincingly
did not
state,
they
of this
Constitution and laws
Amendment, but a
come from the federal Sixth
jail, strictly
placed her in
incommunicado ...
constitution,
sister state
they
to let her communicate or
refused
phrasing apparently
“... The 1836 counsel
legal
attorney
with her
about her
advise
Mississippi
was borrowed from the
Constitu-
premises,
rights, or what she should do in the
1832,
(‘right
tion of
Article Section 10
to be
or whatever
she desired to ascertain.
counsel,
heard,
both').
******
by himself or
or
When the framers of the 1836 Texas counsel
Only then did the Court
S.W.
Hamilton 68 Tex.Cr.R. (1913). at 335-336 S.W. stage” analysis
In opting for a “critical majority departed princi- from
ples representation by counsel that our preserve
first framers undertook to
posterity. McCambridge renounces them, rule, brightline today the
preferring a apply that
majority causes the Court *4 deny
rule to to counsel under of this State. dangers the innumerable and vari-
Given confrontation, a
able factors important lawyer
criminal defense has perform protect interests of
functions to
the client. See 1932-1936, Accordingly, making
1936-1939. without using “brightline analysis or such
rule,” relying on the Constitution and but I hold failure
law of this State would request assistance
to honor at the violated his
counsel under Article respectfully I dissent. Valdez, Stevens and Robert A. San
Mark Antonio, Atty., SOLIS, Rodriguez, Dist. Martin Fred G. Appellant, Vela Johnnie Jr., Barrera, Hardy, Edward F. Raymond J. III, Shaughnessy, Attys., Asst. Dist. San STATE Antonio, 117-88. No. Dally, Sp. E.F. Asst. State’s Carl Austin, for the State. Appeals of of Criminal PETITION FOR ON STATE’S
DISCRETIONARY CAMPBELL, Judge. convicted of was as-
while intoxicated Code, Penal 39.02. oppression” V.T.C.A. "official denounced