Green v. State

GREEN, Appellant, Edmond Clifton Texas, Appellee.

The STATE of

No. 1388-91. of Criminal

En Banc.

Jan. (Tex.

01-90-00662-CR, 1991 WL 189699 [1st], App. September delivered —Houston 1991). petition In his discretionary for appellant review now contends that the court appeals of erred to conclude he waived his by to counsel at PIA failing Smith, Houston, Kenneth appellant. W. for cross-petition invoke it. In a for discretion- Holmes, Jr., John B. Atty., Dist. and Alan ary argues review any the State that in event Curry Fleming, & Natalie Attys., Asst. Dist. appeals appellant court of erred to hold Houston, Huttash, Atty., Robert State’s Aus- had a Sixth Amendment tin, for the State. granted petitions the PIA. pursu- We both 200(c)(2). Tex.R.App.Pro.,

ant to Rule /. OPINION ON APPELLANT’S AND Appellant was arrested without a STATES PETITIONS FOR DISCRE- 2, 1990, warrant on March for the offense of TIONARY REVIEW possession day, of cocaine. The next on PER CURIAM. felony complaint March was filed. The Appellant complaint was convicted of the of offense contains a notation that indicates possession $10,000, of in cocaine an amount less than bail the amount of but the record grams, punishment, by actually his enhanced is silent as to whether bail was set at convictions, prior felony 3, and, two so, was assessed at this amount on March if years. unpublished confinement for In an whom.1 appellant ap On March opinion appeals the court peared of affirmed magistrate his before a for what we are conviction, alia, holding, inter although told was PIA. magis At this time the appellant was entitled to appellant pursuant counsel under the trate warned to Article 15.17(a), V.A.C.C.P., and, prelimi- Sixth Amendment at his according so-called to the nary (“PIA”), appearance sheet, initial probable he essential- finding docket of cause was ly right by requesting ap- waived that then made.2 The record does not demon strate, pointment contend, appellant of counsel at that time Arti- under does not 1.051(c), cle magistrate V.A.C.C.P. Green v. No. set bail at this time.3 The speculate might 3.Appellant equates 1. We that this notation on the the PIA with a so-called felony complaint represents no more than a rec- “Forty Eight Hearing.” parte Hour See Ex attorney Clear, ommendation from an assistant district (Tex.Cr.App.1978); Alberti in-take, printed “based on a form bail sched- Texas, County, F.Supp. Harris Sheriff of ule utilized in criminal cases.” Alberti v. (S.D.Tex.1975). Sheriff "principal pur- The stated County, F.Supp. Hands Clear, pose” hearing, of such a we said in is “to (S.D.Tex.1975). The record before us in this appoint attorneys review and set bonds and cause, however, affirmatively does not establish felony complaints.” case 573 S.W.2d at 226. this. Houston, City F.Supp. See also Sanders v. (S.D.Tex.1982), (C.A.5 741 F.2d aff'd appellant 2. Because was arrested without a war (Fourth 1984) requires after war- rant, finding his further detention without a presented rantless arrest that accused be before a probable cause violate would the Fourth Amend ment, no later than 24 hours after initial Pugh, Gerstein probable detention for cause determination and S.Ct. ty 43 L.Ed.2d 54 as well as Coun bail). odd, then, McLaughlin, setting It is that the record Riverside event, affirmatively does not reflect bail was set warrant, support PIA, even a anof arrest either on March 4 or on the reset on 15.04, V.A.C.C.P., justify Article will not contin March 5. ued detention absent second determination of appeals appellant In his brief in the court of cause, as a matter of state law. See Ex heavily upon relied Harris Alberti Garcia, Sheriff of parte (Tex.Cr.App.1977). County, supra, proposition he was entitled Why any probable cause determination was case, trial, to counsel at the PIA. Alberti was a civil made PIA than at a rather at an however, testing jail 16.01, V.A.C.C.P., constitutionality con- Article is a not raised text, County. party present ditions court, Harris federal district either in the cause. See alia, post. "Forty Eight Hour inter ordered the argument two-fold. reset, according again, then to the stance. The State’s “case” was sheet, 5,1990. First, at the day, March no to counsel inheres docket the next pauper’s that date filed oath the commencement precedes On because it Second, appointed represent him. proceedings. and counsel judicial adversarial Appellant was March indicted on proceedings had if even adversarial 29,1990, PIA, and on June he was re-indicted. On time of that at the the commenced July appellant was convicted under represent a “critical proceeding does not indictment, original the in- the second the stage” prosecution of so to invoke as dictment was dismissed. right to Sixth Amendment counsel. Appellant ap- contended in the court of

peals right that his to counsel under both the II. I, § Article Sixth of Oliver Texas violated he Constitution was because day), delivered this we decided (Tex.Cr.App., represented by at was not counsel the PIA. request preindict counsel that failure to at appeals appellant agreed court of that The 1.051(c), supra, hearing ment under Article counsel, right citing to had Nehman v. or of the does not effect a waiver forfeiture (Tex.Cr.App.1986) 721 S.W.2d 319 for counsel, right any. to if Sixth Amendment proposition. pur- that But Nehman does not ap Accordingly, we hold that the court of port right to address to counsel under I, peals lost fact, appellant § to conclude that holding 10—in erred Article Neh- right at his expressly Sixth Amendment to counsel man is limited to the Sixth Amend- However, Therefore, light PIA. of issues raised ment. See S.W.2d at 320. holding appeals cross-petition, of in the does the court did not resolve issue State’s this then, right proceed, appellant’s as to under Arti- not end here. We to matters I, § Appellant specifically cle does not address issues. those however, defect, complain peti- of this in his discretionary

tion for review. We limit our III. consideration, accordingly, to the Sixth Amendment issue that was addressed in the A. appeals. court of that

Having appellant held did to the Unit indeed en- The Sixth Amendment guarantees joy a Sixth Amendment to at ed that “[i]n counsel States Constitution PIA, appeals the court shall prosecutions, reasoned that all criminal the accused enjoy he was not denied ... to have because he the Assistance requested right does appointment never of counsel Counsel for his defence.” This attach, however, representation prior purposes of at that not to initiation of for hear- “the 1.051(c), adversary ing, judicial proceedings!,]” terms of Article su- United Gouveia, 187, 180, pra. provision That that “the States v. 467 U.S. at mandates 2297, 146, 2292, at 153 “appoint represent court” de- S.Ct. at 81 L.Ed.2d by way charge, possible!,]” as soon as formal “[i]f” fendant he is “whether information, indictment, appointed preliminary hearing, ... and “indigent requests coun- Illinois, arraignment.” Kirby v. discretionary in his for petition Now sel!.]” at appellant at argues review court (1972) (Plurality opinion); see also thus hold that his at appeals erred Illinois, request. at contingent upon The Moore counsel was 424, at 433 cross-petition 54 L.Ed.2d counters its State argues of these appeals The that none erred to hold had a State court PIA. by the PIA in the in- events had occurred time right to counsel first Amendment, inapposite to Hearing,” presence to that extent to be in the of release of it conducted counsel, assuring quick a means inquiry. present Sanders is Fourth Amend- bond, jail eligible personal inmates those help case, speak question not ment and does However, overcrowding. Alberti did reduce right to counsel. require purport to counsel under the Sixth (adver (Tex.Cr.App.1989) at 78 Our caselaw is somewhat indetermi judicial may sary proceedings commence mis nate on the of what events complaint is proceed to initiate demeanor when “the serve filed.”); ings purposes. Forte v. (same). (Tex.Cr.App.1986) urges felony prose us to that in a This latter view State hold with, by, if adversary judicial proceedings do not is at least consistent not dictated cution filing precedent from the United States commence until the of an indictment. Illinois, supra; Brewer opinions from Court. See Moore There are indeed this Court Williams, support proposition. seem 1239-40, at 436 DeBlanc v. Jackson, (1977); Michigan “summarily” (Tex.Cr.App.1990), we dis missed a Amendment claim of light counsel “since to an attor [DeBlanc’s] We need not here decide when ney under that Amendment did not arise if judicial proceedings commence. For even Spence until after he indicted.” Cf. v. mark felony complaint was sufficient to (Tex.Cr. State, 743, at 795 S.W.2d 752-53 adversary judicial proceed- the initiation of (no App.1990) right ings, agree nothing we with State impressions taking counsel at of dental be appellant’s at PIA that would ren- occurred Spence formally charged cause “was not then stage” der it a “critical of the State, indicted”); Holloway or v. S.W.2d appeals erred to against him. The court of (“return 787, 791, (Tex.Cr.App.1989) at n. 3 any right to he had Amendment hold Sixth signals” an initiation of adver indictment waive. sary judicial proceedings); McCambridge v. B. State, 499, (Tex.Cr.App. at 502 S.W.2d (in 1986) ease, every following incep defendant’s misdemeanor Not event adversary judicial proceedings Amendment to counsel did not consti “Sixth tion of complaint stage” and information as to invoke the attach until the tutes a “critical so filed.”). hand, though Amendm the other we to counsel under were On Ash, E.g., States v. it clear that an arrest alone does ent.4 United have made (1973) 300, 2568, judicial proceedings, trigger not adversarial State, warrant, display used (post-indictment photographic or without a Dunn v. with prior to (Tex.Cr.App.1985); v. to test witness identification trial Garcia State, 46, assessing whether (Tex.Cr.App. stage”). at not a “critical 626 S.W.2d Estelle, 1981); particular stage pre-trial F.2d see also McGee v. (C.A.5 one, by the 1980), “the test utilized an Article 15.17 is a “critical” nor does 597, State, of the event for examination warning, Wyatt at Court has called v. the accused judge panel in order to determine whether (Tex.Cr.App.1978), a two coping legal problems in filing felony required aid with opinion that the has held Id., State, adversary.” meeting assistance Barnhill v. does. at 628. at at L.Ed.2d (Tex.Cr.App.1983). Cf. U.S. S.Ct. at 132 essence, State, any pre-trial must n. we scrutinize supra, at 322 & Nehman v. (adversarial ascertaining whether a view to begun event with proceedings had necessary to assure presence of counsel is warnings because by the time of Article 15.17 of coun and the effective assistance “charges” had been filed fairness unspecified then is, all, trial, “the core defendant); 777 sel at which Miffleton I, stage” only, can occur § § that no “critical purposes Article 10 of the Texas 4. For brought against Constitution, charges are sus "until formal held in Forte v. this Court 1988), today pect.” decide (Tex.Cr.App. We do not S.W.2d 128 I, § 10. stage,” a PIA under Article any to counsel at at “critical would inhtre counsel irrespective p. Amendment con adversary judicial pro ante. In the Sixth See of whether enough after the initi that even begun. text it is clear ceedings had Later the Court retreated adversary judicial declaring position, ation of from this somewhat (Tex. stage.” only at a "critical to counsel attaches McCambridge at 76 I, 1989), S.W.2d at 92. again purposes Forte v. Cr.App. of Article ..., promptly Amendment for the State purpose guarantee of the counsel when Fourth “as probable both the cause determination [is] the accused confronted with to obtain re- advocacy pretrial of the law and of the significant intricacies a condition of Id., public prosecutor.” liberty.” Pugh, at U.S. at straint of his Gerstein 868-69, States L.Ed.2d See also United at at Wade, at 71-72 We are L.Ed.2d probable apprised of the exact nature of the PIA, appellant’s cause determination made say that anything We cannot that occurred presume it was this Fourth but we to serve required appellant’s the aid of counsel purpose. probable cause cope any legal problem or assist Pugh contemplated finding Gerstein meeting prosecutorial adversary. All non-adversarial, or- usually therefore not the record reveals certain is that stage. dinarily considered to be a critical warned in with Ar- appellant was accordance 867-68, Id., 122-23, S.Ct. at 15.17(a), supra, ticle and that true that trial at 70. It is made, presumably cause determination was proceeding 'as an Texas serves adversarial satisfy the Fourth to the Amendment. As designed inquire probable cause into the former, hardly imagine we can a reason to justify of an accused of the State to detention present to be require counsel for the mere prosecution, and state law pending formal warnings dispensation rights examining appoint permits magistrate the pursuant Article accused Miranda5 and indigent the Article 38.22, counsel for accused. See warnings V.A.C.C.P. themselves 1.051(e), 16.01, & supra, and Articles 16.06 prophylaxis, a at a serve as to make sure 16.17, Moreover, examining V.A.C.C.P. an stage of the the ac- at which large measure accused the yet likely attorney trial affords an cused is not to have an present opportunity to the case that he is informed of discover State’s nevertheless character, rights against Fifth Amendment him. Given its adversarial to remain silent presence lawyer presents prepara- it potential and to obtain the of a as a and the for the defense, any questioning by examining of trial is condition submission to tion of a trial an arguably stage purposes authorities. It would indeed to re- critical of be odd quire presence analysis. of the counsel at this event. See Coleman requires Alabama, Article 15.17 also that the accused at 399 U.S. at 90 S.Ct. (1970); the him. 2003, be informed of accusation 26 L.Ed.2d Gerstein appellant 867-68, was the required 122-23, But neither Pugh, S.Ct. at statute, asked, apparently fact, nor was he to en- at 70-71. In the L.Ed.2d any plea respect ter a of kind. the barely an deciding avoided whether hearing the preliminary PIA is unlike examining stage in Pointer trial is critical 379-380, stage deemed to be critical in White v. 85 S.Ct. 380 U.S. Maryland, 10 1065, 83 S.Ct. 925-26 13 L.Ed.2d (1963), (1965). L.Ed.2d 193 where the defendant charges against of the him and informed an exam- appellant But does not claim that plea. required Compare to enter a Hamil- PIA. Nor ining trial was conducted at his Alabama, ton v. 82 S.Ct. he claim that the should does regard to the L.Ed.2d With examining an at that time. have held trial preservation fairness and the assurance probable even claim He does not trial, appel- assistance of counsel at effective magistrate made at determination the cause of, presence gain nothing by lant stood a later preclude PIA would somehow of, losing nothing in absence and risked short, examining does not appellant trial. attorney during Article an at his side having complain deprived now been warnings. 15.17 advantage examining trial would a full-blown Indeed, appointed for appellant have afforded. Because was arrested with warrant, easily day after PIA could necessary appellant it was under the out a Arizona, 5. Miranda v. trial, requested examining proceeding

have an but did does not elevate that to the level was, stage. not. Absent a claim that critical been, trial, should have for all nothing We hold that the record shows to we can tell the cause determination appellant’s have occurred at PIA amounted nothing that was made there was more than stage invoking critical to a his Sixth Amend- type proceeding of non-adversarial held Thus, though ment to counsel. stage not to constitute a critical in Gerstein erroneously appeals appellant court of held Pugh, supra. any right waived to counsel under the Sixth Amendment, it erred to he had also hold such Finally, the record does establish begin Accordingly, with. we affirm Nevertheless, ap- PIA. bail was set judgment. its pellant argues appoint- that had counsel been PIA, prior ed to the he could have contested MILLER, J., in the concurs result. (apparently) previ- the bail that had been set MALONEY, J., dissents with note: Be- ously. Undoubtedly nn. 1 See & ante. hearing cause I believe that the PIA is a true, this is but it does not convert the PIA stage proceeding entitling critical stage. into a critical than its Article Other to counsel under the Sixth and PIA, se, aspect, per is not a re- Amendments, compare Fourteenth Brewer quirement of state law. While excessive bail Williams, 1232, 51 I, § violates Article 13 of the Texas Constitu- (1977) and Tex.Code Crim.Proc. tion, attacking ex- the traditional method of 15.17, respectfully I dissent. art. Ann. by application writ cessive bail is of habe- Braden, al, corpus. See 1 et The Consti- CLINTON, Judge, concurring. An tution of the State of Texas: Annotated join opinion I Judge Meyers, Like Comparative Analysis, Ap- response I add these remarks the Court. pellant deprived claim he was does not concurring opinion, in which he advo- to his represent any him in counsel to habeas cor- appellant right had no to coun- cates we hold Indeed, pus to coun- action contest his bail. “preliminary appearance” initial sel at his day appointed sel was for him the after the judicial pro- by that time adversarial because PIA; appel- yet the record does not reflect ceedings begun. had not sought by lant ever a reduction of bail event, any to the Constitution procedure. usual I, 10, § and Article of that a failure to reduce of the United States does demonstrate of, guar- of impacted the fairness or the Constitution State his bail somehow ” prosecutions effectively represent him that all criminal ability “[i]n to antee counsel’s Ash, at, of have “the Assistance trial. v. su- the accused shall See United States defence,” Wade, and “the of supra. for his pra; States v. Under Counsel United counsel, both[,]” or circumstances, being by himself or possibility the that a law- heard respectively.1 yer might have contested bail at the definition, lacking conceptual scope the Federal of a While similar 1. In Texas the traditional "govern pro- to prosecution,” in Rules of Criminal Procedure "criminal once memorialized statutes, any part proce- [in federal cedure in all criminal courts],” is "the whole or of id., 1, "provide are intended to for provides bringing Rule dure the law which for offenders proceed- just every criminal justice;" determination of “criminal action” and to the terms id., prescribed ing,” procedure Rule 2. The first are used in the same "criminal accusation” Eaves, 220, "bringing justice” swear out offenders to is to v. at sense. See State 223, complaint upon warrant or (Tex.Cr.App.1990), which an arrest and authorities cit- n. 11 may probable "if there is cause issuing for arrest summons issue ed therein. That a warrant committed that an offense has been upon complaint pursuant Articles 15.- to believe based id., it[,]” V.A.C.C.P., 01, 15.03, 15.05, Rules and that defendant has committed and and 4, by of the accused. The carrying imposed followed arrest out duties Article 3 and thereafter V.A.C.C.P., magis- 15.17, appearance including informing before the is an initial accused second trial, according vary during duties trate which the and to an are offense, any event but in procedure "bringing classification of the part offenders to of such counsel; proce- the third implicate the justice" self-evident. See Nehman examination, 319, preliminary unless (Tex.Cr.App.1986). dure is a Williams, Brewer sary proceedings,” On the of when the to coun- 401, 1232, 1239, 387, 399, at sel in the a “crimi- at 97 S.Ct. must be honored course of U.S. (1977) 436, 1240, 424, prosecution,” nal view L.Ed.2d at prevailing federal (initiated warrant, place by in from the down in one arrest on principle derived laid Alabama, “arraignment” Poivell v. booking thereon before a at and who advised him of Miranda rights judge at 77 L.Ed. at 170 jail transfer “requires guid- of crime committed to to await one accused and ing place);3 “adversary judicial in criminal every step hand of counsel another Illinois, Moore against him.”2 proceedings,” Thus the 464-465, accusatory proceedings when are L.Ed.2d “attaches” (1977) corpo- against indiscriminately (rejecting view that initiated de- at 433 him — “adversary judicial proceedings” real without counsel scribed as identification conducted indictment, proceedings,” Kirby only “judicial and criminal if be- excludable made Illinois, filing with “prosecution” cause commenced (1972) by “preliminary hearing followed (but ... Wade Gilbert right to counsel under cause to bind determine [to] grand inapplicable preindictment pre-charge jury and to or over set [accused] bail”).4 “judicial show-up); proceedings” “adver- Jackson, 5(b) (c); Michigan Rule and Rule waived. Rule 5.1 (1986) (passim). 58. Thereafter, jurisdiction during each con- are, particularly, prosecutions” 4.More for near unanimous Su- duct of "criminal course, there (two concurring opin- procedures justices pretrial required preme ions), with other available; names, though called Justice Powell wrote: similar purpose and function of which are not necessari- Kirby read "The Court ... ly the same. holding corporeal that evidence of identifica- emphasis throughout All is mine unless other- of defense coun- tion conducted the absence wise indicated. only sel must be excluded if the identification indicted, [em- is made after defendant is Rejecting notion that the constitutional original; phasis omitted]. record cites Such principle presence is limited to of counsel at itself, Kirby reading squared be cannot trial, explained: Court has rights held that accused’s which principle central "... 'It is and Gilbert attach to identifications con- Wade trial, presence counsel's ac- addition to ‘at or after ducted the initiation guaranteed that cused is he need not stand including pro- proceedings,’ any stage alone State at way charges ceedings 'by formal instituted of out, prosecution, informal, or in court or formal preliminary hearing.’ [or] [citations omitted]. might derogate where counsel’s absence from prosecution in The this case was commenced right to a the accused's fair trial.’ United Illinois law when the victims’ Wade, 226, supra, 388 States v. U.S. at court, pur- [citation The omitted]. was filed in at 1932.” hearing pose preliminary was to deter- Alabama, 1, 9, 399 S.Ct. Coleman v. U.S. at 90 whether there was cause to mine 387, at 26 L.Ed.2d at 396 jury petitioner grand and over the to bind “arraignment” jurisdiction,

3. An in there one right oppose bail. Petitioner had the the set Iowa, may type "proceeding” not be same of moving hearing by prosecution at that dis- another, example, in for in See Ham- Alabama. charges suppress the evidence miss the against and to Alabama, U.S. at n. 82 ilton v. 368 [citation omitted]. him. He faced 7 n. S.Ct. at n. at for the who elicited the victim’s counsel identification, (1961) (arraignment 4 conse- has different other summarized the State’s ev- quences jurisdictions); various also Fed. in see against petitioner, urged that idence and Rule 10 and 11. Crim.Pro. given marshal its evi- State be more time to plain government Accordingly, with ha[d] one must the cases dence. It is that 'the examine peti- likening prosecute,’ and that own committed itself some care before another our prosecuto- particularly pretrial “arraignment” re- with the tioner found 'himself faced focussed organized society, quired and immersed prescribed 26.01 and in Articles rial Article forces 26.02, "Forty Eight procedural compare and But in the intricacies substantive V.A.C.C.P. formerly prescribed Kirby, supra, at Hearing” law.’ in Harris criminal Hour Clear, S.Ct., candidly parte 1882. concedes County, 224, in Ex at The State described hearing (Tex.Cr.App.1978), preliminary marked the ‘initi- an Arti- that this at 226-227 adversary proceed- magistrate judicial criminal proceeding cle before a ation of —else- e.g., ings' against petitioner "arraignment,” references [record called an where sometimes recognized Kirby preme in Court added: or arrest on warrant Supreme As the Court Illinois, supra: arraignment and thereon5 Accord: Michi Jackson, gan at that, “... point But the while members 631, at at as to the exis- of the Court have differed (1985) (magisterial arraignment signals initi to counsel in the con- tence of the adversary judicial proceedings ation of and cases, texts of some of the above all of attachment of Sixth Amendment thus points have involved of time at those cases counsel).6 adversary judicial the initiation of or after by way Thus, considered, —whether things all resolution of charge, preliminary hearing, in- formal instant cause does not turn issue dictment, information, arraignment.” the kind of on whether “the State has filed Id., S.Ct., accusatory pleading upon which a conviction at at (first based[,]” L.Ed.2d, original). might lawfully Judge Meyers be emphasis Williams, Although supra, page would have it. 721. it is Later Breiver v. Su See omittcd], Supreme agreed hardly at Court with that and it could contend other- holding. The Court of therefore erred in wise. Ibid. case, holding petitioner's rights Michigan Supreme under Wade and In Jackson’s yet attached at the time of the Gilbert had not points out that since he was arrested for a Court preliminary hearing.” warrant, arresting felony without a officers Id., 228-229, S.Ct., 464-465, at 434 U.S. at Michigan bring required by were statute "to L.Ed.2d, at 433-434. arraignment before a without him unnecessary delay." 365 N.W.2d at 70. Bladel present 5. "There can be no doubt in the case that arrested, questioned and released with- was first judicial proceedings had been initiated being charged; investigating out when officers ... for his Williams arrest, A warrant had been issued tending evidence to incriminate later obtained him, arraigned he had on that warrant been ..., caused him to be arrested in judge officers and he had been committed before state, waiving extradition judge jail.” another to confinement in Id., 1239-1240, S.Ct., being brought questioned, back and Bladel 430 U.S. at L.Ed.2d, during arraigned magistrate, before a which Goveia, requested appointment In United States v. he of counsel. 0984), contexts, Supreme Supreme justified Court In those subsequent Court noted that cases had confirmed application to the Sixth its of Edwards v. Arizona that the attaches with the view least after the to counsel—"at proceedings,” citing, e.g., “initiation of charges," initiation viz: formal 226-227, Illinois, supra, Moore v. "Indeed, accusation has been formal L.Ed.2d, S.Ct., 463-464, at 432-434 and person previously who had been made—and ’ Williams, 398-399, supra, 430 U.S. at Brewer v. just 'suspect’ with- has become ‘accused S.Ct., 1239-1240, 51 L.Ed.2d at 435-437. meaning of the Sixth Amendment—the of counsel to the assistance constitutional actually opinion Supreme 6. The police may importance no is of such ultimately causes consolidated for decides two purposes eliciting techniques longer employ informa- appeal by Court of might defendant tion from an uncounseled Jackson, People People Michigan: v. Bladel stage entirely proper an earlier have been 421 Mich. 365 N.W.2d 56 investigation.” their respective homicide offenses arc not relat- S.Ct., 1409, Id., 632, at 89 106 475 U.S. at ed, presents question, a common but each cause L.Ed.2d, rejecting oppos- more at 639. And after to-wit: Supreme ing arguments subject, Court on the Arizona, of Edwards v. 451 "Whether the rule concluded and held: 1880, 378 101 S.Ct. U.S. right to [of that the assertion "... We conclude (1981) 'applies been to a defendant who has significant, need and the for is no less counsel] formally charged and who has with a crime clear, safeguards when the is no less additional requested appointment his ar- of counsel at ” arraignment request is made at an for counsel raignment.’ claim is the Sixth when the basis for the postarraignment con- The court below held that, police if initi- Amendment. We thus hold improperly in violation of were obtained fessions assertion, interrogation a defendant's ate both Bladel and the Sixth Amendment because proceeding, arraignment of his or similar at an arraign- "requested during their Jackson counsel, any the defendant’s waiver of ments, opportunity an but were not afforded police-initiated inter- for that to counsel police initiated with counsel before the consult Jackson, rogation is invalid.” interrogations.” Michigan su- v. further S.Ct., Id., 1406, L.Ed.2d, at 89 626, S.Ct., 106 475 U.S. at pra, at at at 67-68, N.W.2d, L.Ed.2d, Mich., at 642. quoting at 365 from enough Supreme re- at after the initiation of clear Court taches or gards charge” as a “formal com- sworn defendant. judicial proceedings plaint under its rules under our 180, 187, and would Gouveia, v. 467 U.S. States United rules, ante, own see note term is not a (1984); 2292, 2297, 81 L.Ed.2d 146 104 S.Ct. invoking rights. talisman constitutional 469-470, Smith, v. U.S. Estelle (1981); 1866, 1876, Kir- 68 L.Ed.2d 359 S.Ct.

For purposes Su- 688-689, Illinois, preme 92 S.Ct. made 406 U.S. Court has clear that an arrest (Breiver Williams) 1877, 1882, a warrant And the L.Ed.2d 411 Jackson) (Michigan pre- without a warrant acknowledged that certain has Court arraignment an initiates followed thereon such stages” may “critical constitute trial judicial “adversary proceedings.” adversary judicial proceedings sufficient ques- is But that “distinct from the See, counsel. trigger a defendant’s arraignment a criti- tion whether the itself is Gouveia, at at 2298 467 U.S. 104 S.Ct. counsel, stage requiring presence cal Wade, U.S. (citing States United Michigan waiver.” absent valid v. Jack- (1967)). See 18 L.Ed.2d 1149 son, S.Ct., 629, 3, supra, 475 at at U.S. n. 1, 7, also, Alabama, Coleman L.Ed.2d, n. After a at n. 3.7 1999, 2003, 26 L.Ed.2d 387 S.Ct. arraignment magisterial “government efforts proceeding constitutes pre-trial Whether accused, includ- to elicit information from the essentially adversary judicial proceeding interrogation, represent stages’ ing ‘critical [is] the accused depends “[whether] applies, [ci- at which the Sixth Amendment both intricacies of confronted with Id., 630, 106 omitted].” tations U.S. advocacy public prosecu- and the law S.Ct., L.Ed.2d, Gouveia, 188-189, 104 tor.” agree Because I the PIA not constitute did Ash, (quoting States v. United S.Ct. stage present- in the a critical circumstances 2568, 2573, here, join per majority opin- ed I curiam (1973)). However, L.Ed.2d 619 Judge Meyers, cause. ion Unlike “bright- has declined establish however, majority I believe the well to does adversary judicial pro- rule for when line” any holding Amend- eschew that the Sixth begin deci- ceedings and has instead left this at a ment to counsel not inhere does See, Gouveia, state courts. sion to PIA because adversarial also, 187-189,104 See 2297-2298. begun yet have not that time. Illinois, Moore v. Fuller v. BAIRD, Judge, concurring. (Tex.CrApp.1992); adopting I believe the Court correct Barnhill, and, 131, State v. determining stage” analysis “critical in- (Tex.Cr.App.1983). Consequently, it is when an accused entitled to counsel upon this Court to determine what cumbent However, Amendment. I would the Sixth a “criti- point in the constitutes Ap- Preliminary Initial further hold stage.” cal (PIA) hearing pearance under Tex.Code a “criti- art. 15.17constitutes Crim.Proc.Ann. stage” at which the cal II.

right to counsel has attached. clearly Tex.Code Crim.Proc.Ann. art. 15.17 I. provides for the at a defen- 15.17(a) reads, hearing. right PIA that the dant’s Art. Court has held part: at- pertinent under the Sixth Amendment to counsel Jackson, supra, adversary judicial pro- Michigan initiation of U.S. at n. 7. "[A]fter right S.Ct., L.Ed.2d, ceedings, provides a the Sixth Amendment n. n. 5. stage' is at a 'critical even where there Furthermore, to counsel no cability. 218, right at a “critical appli- interrogation and no Fifth Amendment depend stage” request by does not a on Wade, See United States Id., at n. 6. defendant. (1967)....” 87 S.Ct. L.Ed.2d 1149 Code, In each purpose giving practical case enumerated serves the ef- person making protection.... the arrest shall fect an without abstract unnecessary delay person take the arrest- State, Oliver 813 S.W.2d 764-765 ed or have him taken magis- before some 1991), (Tex.App. rev’d [1st Dist.] — Houston county trate of the where the accused was (Tex.Cr, grounds, on other 872 S.W.2d 713 magistrate arrested ... The shall inform day). App. delivered this language in clear person arrested ... majority recognizes, As the our decisions against any him accusation and of judicial adversary proceedings begin on when therewith, right affidavit filed of his opinion, Majority have been inconsistent. counsel, silent, right retain of his to remain However, pp. acknowledged in 719-720. we right attorney present of his to have an State, (Tex.Cr.App. Fuller v. 829 S.W.2d during any peace interview with officers or 1992), hearing may PIA constitute state, attorneys representing the of his just stage” point such a “critical at which a right any to terminate the interview at defendant’s to counsel has attached. In time, request appoint- of his Fuller, judicial adversary an we recited when indigent ment of counsel if he is and can- proceeding begins: counsel, not afford and of his to have ... a criminal examining an trial. He shall also inform variously progress considered to be person required that he arrested is not af- formally ter the accused has been arrested to make a and that statement state- magistrate, when and taken a he by may ment made him be used before charged complaint has been indicted or per- him. The shall allow the and with a criminal offense. information opportii- son arrested reasonable time and nity to consult counsel1 and shall admit Id., Consequently, we 829 S.W.2d at 205. person to bail if allowed arrested a PIA are not without a basis to conclude law.2 hearing sufficiently stage” “critical is a proceeding, constitute an implicates Art. 15.17 both the Fifth and point at which the defendant is entitled to by requiring magistrate Amendments a also, Lucas v. the assistance of counsel. See rights under to inform a defendant of his (Tex.Cr.App.1989); Arizona, Miranda v. (Tex. 739 S.W.2d Janecka 1602,16 allowing L.Ed.2d 694 State, 721 Cr.App.1987); Nehman v. opportunity to consult with defendant and, (Tex.Cr.App.1986); Barnhill v. a defendant’s Miranda counsel. Because (Tex.Cr.App.1983) 657 S.W.2d pro- rights stem from the Fifth Amendment’s where, true (panel op.). especially This is during cus- against self-incrimination hibition case, hearing the PIA is held in the instant Gouveia, see, interrogation, todial See, complaint is filed.3 Unit after a formal 5; Kirby, n. 188 n. 104 S.Ct. 2297 Wade, ed States it follows that (“critical normally occurs after stage” counsel” arises “to consult defendant’s and, Barnhill, filed); Amendment. independently the Fifth from Thus, Appeals observed: as the Court merely procedur- hearing is ... The PIA III. spans gulf between bridge that al relied Nehman The Court of of coun- to assistance of defendant (Tex.Cr.App.1986), counsel v. appointment of the actual sel and to counsel at appellant was entitled hold Though the represent the defendant. holding was hearing. I believe that hearing place takes defendant’s Nehman, ar attached, the defendant hearing correct. right to counsel has case was filed complaint in the instant indi- 3.The supplied otherwise emphasis is unless 1. All hearing was held on the PIA cated. March represent appointed to counsel was March hearing pursuant art. 15.17 is distinct A PIA 2. on March art. 16.01. trial under from

727 suspect stage” the in Iowa as a in homicide “critical rested Hernandez, See, Amarillo, 842 An was is State v. Texas. arrest warrant defendant. police (Tex.App. sued in Amarillo and two trav- officers 311 Antonio S.W.2d — San ref'd); State, elled to escort Texas. 788 pet. to Iowa Nehman to S.W.2d Alford Upon taking custody, (Tex.App. him into officers the [1st Dist.] 439 — Houston 1990); and, rights. Higginbotham of his informed Nehman Miranda 769 Amarillo, Neh returning (Tex.App [14th Id. at 320. After to S.W.2d — Houston 1989), give grounds, man that he a writ indicated wished to rev’d on other Dist.] Id., Therefore, concerning ten I (Tex.Cr.App.1991). statement the homicide. S.W.2d being hearing 320-321. As the statement was under art. hold that PIA would PIA prepared, stage” Nehman was for his represents taken a “critical which 15.17, to art. where the hearing, pursuant right to the assistance of point a defendant’s magistrate informed Nehman of his Miranda counsel has attached.

rights right attorney to and of his have an

appointed represent PIA to him. At the IV. hearing, requested Nehman that counsel be (Tex.Cr. In Oliver S.W.2d Id., appointed. hearing, at 321. the After App. day), we held that a delivered counsel, receiving prior but was Nehman to counsel defendant does waive his police department where he returned to by hearing merely failing pre-indictment at a signed statement. Id. Id., affirmatively request counsel. Bosler, (citing at 715 Swenson v. S.W.2d appeal,

On Nehman claimed the statement U.S. 258, 260, 996, 998, 18 87 S.Ct. was in violation obtained of the Fifth Rains, (1967); parte and Ex Sixth We Amendments. declined to address also, (Tex.Cr.App.1977)). Bark See in- Fifth Amendment claim and focused 514, 525, claim, Wingo, 407 U.S. 92 S.Ct. er v. stead on Nehman’s Sixth Amendment (no (1972) presumption 33 L.Ed.2d holding: no “There is that adver- initiated, of waiver of constitutional from inac sarial had been tion). Instead, thus, for there to be a valid waiver appellant’s counsel, the record a defendant Id., must show to counsel had attached.” at 322. We See, Oliver, affirmatively declined counsel. held Nehman’s statement was obtained also, Carnley Id., See violation of Sixth Amendment. Cochran, Therefore, clearly 323. Nehman stands for then, in L.Ed.2d 70 It follows proposition hearing that a PIA a “criti- case, appellant did not waive his instant point cal stage” at which a defendant’s simply failing request the Sixth has counsel under Amendment hearing. at the PIA counsel attached. holding

In erred was entitled to Court of Since necessary concluding appellant’s hearing hearing was a PIA it is to determine PIA entirely failure stage,” majority disre he harmed “critical whether was above, gards provide I believe counsel. Violations of Nehman. As stated subject Appeals correctly Neh are to a “harmless er relied on Nehman, case, analysis. In the instant ror” Satterwhite v. man. hearing appellant’s PIA conducted and, (1988); Sterling v. was filed before indict but Nehman, See, (Tex.Cr.App.1992). n. 2. con S.W.2d

ment. majority distinguish ducting analysis, we look see such Insofar as fails Nehman, provide appellant failure to I Nehman is overrule believe that whether Moreover, hearing PIA contributed to three courts counsel at his controlling. least punishment. hold conviction or Tex. have relied Nehman to either his appeals 81(b)(2).4 R.App.P. Compare, Rule Hernan hearing constitutes a defendant’s 81(b)(2) essentially R.App.P. the codification of Mallory 569-570 (Tex.Cr.App.1988), recognized we that Tex. federal "harmless error” standard. State, question adversarial (Tex.App.— that is no that “[t]here dez v. and, State, 1991); Whittington been initiated” for Sixth ha[ve] Waco v. purposes by the time of an “Art. (Tex.App. Amendment [14th S.W.2d — Houston ref'd). hearing.” 721 pet. warning S.W.2d Dist.] The record indicates (internal omitted). Thus, quotation marks magistrate probable made a cause opinion it which we here review does hearing. determination at the PIA While on possible persuaded expressly implicitly or include decision is that counsel could have question probable that was lack of criticalness. cause ing, jury’s subsequent grand indictment Moreover, mainly argues in its the State appellant mag preempted would have Appeals position, petition that the Court See, findings. Whittington, 781 istrate’s Nehman, holding in also the and therefore Moreover, S.W.2d at 341. the record indi adversary judicial pro- untenable because day appellant cates received counsel felony really initiated in ceedings are not hearing.5 appellant’s the PIA We find that Jury an indict- cases until the Grand returns hearing failure to receive counsel at his (emphasis omit- ment. PDR at 5-7 State’s appellant’s did not contribute to either con ted). Although “note[] does State error, therefore, punishment. viction or The not a ... cause determination is [a] was harmless.6 prece- stage” critical Court comments, join only judg- With these I dent, argu- really the crux of its this is not (internal ment of the Court. quotation ment. PDR at 5 State’s omitted). clear to marks It therefore seems MEYERS, Judge, concurring. actually presented me whether, under Texas review this case is join opinion I I the Court’s because sub- law, the Houston PIA occurred after fully stage” analysis scribe to its “critical prosecution inception of a formal criminal willing I am to concede that because against Appellant. We need not decide purposes criticalness for “critical “preliminary appearance” initial whether the PIA was so-called a so-called (PIA) peti- stage” prosecution unless we first con- is here contested the State’s of the begun. in fact discretionary But it is not that a had tion for review. clude McCambridge my impression, papers do the in this case nor conclusion, (Tex.Crim.App.1986); fairly support a that review was n. 11 Forte (Tex.Crim.App.1986). I actually granted decide whether the PIA 707 S.W.2d my stage” separately write to elaborate own views was a “critical question. on against Appellant. Appeals, relying only on Neh- The Sixth Amendment to the United (Tex.Crim. that, broadly States Constitution assures

man prosecutions, all criminal App.1986), simply “Appellant “[i]n held accused enjoy PIA.” ... to assistance of counsel at the shall to have the Assis- entitled 01-90-00662-CR, 1991 tance of Counsel for his defence.” This No. Green Sept. applicable prosecutions (Tex.App. state [1st] WL 189699 — Houston 1991) (unpublished), Slip Op. through at 5. Neh the Due Process Clause of the Four- Amendment, man, turn, Wainwright, only proposition teenth stands for the Gideon However, See, supported appel- supra. even if the record 5. n. claims, of which lant’s the harm com- invariably Appellant harm results 6. contends type plains contemplated is not the of "harm” appoint the PIA failure to counsel at from the the "harmless error” rule. The loss of one’s unrepresented indigent hearing defen- because etc, unfortunate, employment, while makes most time, jobs, housing [and] ... dants "lose their no contribution to a conviction defendant’s non-indigents with ... all those essentials that See, 81(b)(2). punishment. Consequently, Rule Ap- lawyers pursue a matter of survival....” appoint the failure to case counsel in the instant pg. Response, pellant’s Supplemental Brief and 81(B)(2) was harmless in a Rule context because appel- the error made no contribution either to Initially, does not indi- I note that the record punishment. lant’s conviction or grievances. appellant suffered these cate that of authori pointed 83 counsel. Without citation 9 L.Ed.2d 799 issue, “only ty at or the or further discussion of the we but is effective after that, judicial charges were filed adversary proceedings concluded “since initiation by against against appellant ... the time of Art. [his] the defendant.” United States v. Gouveia, hearing[,]” warning n. 2 15.17 Id. 323 (internal (1984). omitted), quotation marks “adver Whether ad- initiated, judicial proceedings had versary proceedings have been insti- sarial been is, course, appellant’s ... matter of law. Sixth Amendment tuted a state Illinois, Accord v. 434 98 counsel had attached.”1 Id. at 322. Moore say ingly, it that Nehman does is fair war proposition for that arrest stand the Unfortunately, precedents do our not charges criminal for rants constitute formal unambiguously inception mark the clearly or purposes implementing Amend the Sixth. of criminal in this State. We in ment Texas. See also usually insisted have that the Sixth Amend (Tex.Crim. State, Lucas v. 791 S.W.2d only ment to counsel be effectuated State, App.1989); Janecka filing or of a the an indictment (Tex.Crim.App.1987); Barnhill complaint and formal information. DeBlanc (Tex.Crim.App.1983) S.W.2d (Tex.Crim.App. opinion). (panel 1990); Spence v. S.W.2d (Tex.Crim.App.1990); But in this not well position our matter is Miffleton juris- (Tex.Crim.App.1989); supported by S.W.2d McCam federal Sixth Amendment 502; Forte, comport bridge, prudence, it the reali- S.W.2d S.W.2d nor does consistently But prosecution 91-92. we have not held ties of criminal under Texas law. n that Although language formal criminal must reminiscent neces Nehman is Indeed, sarily begin way. in this we have of that the United used States Williams,2 even held that execution of an arrest in a case similar warrant Court Brewer may sufficiently facts, significant in be formal accusation under on its the event Brewer trigger application Texas law to the not of arrest the circum- Sixth was the warrant but Nehman, Thus, protections. judicial arraignment in stance of a on the war- upon expressly authority regard which Court of rant. To Brewer as for the case, proposition facing in this formal relied the accused was arrested that Nehman was would, therefore, require in charges Iowa on murder warrant issued from criminal Texas, County, interpreting procedure contemplated Potter and then returned prosecution. arraign- Investigating Amarillo for article as tantamount to an offi him, cers 752-53 Spence, obtained written confession from ment. See completed warnings which ‘formal (“statutory after he had been taken are not ”). magistrate, charges’ Clearly holding in before warned the manner this was not our required Nehman, by article in formal crim- 15.17 of Code of which declared that Procedure, already “by Criminal ap charges pending and furnished with inal were Nehman, Relying mainly recently opined on we the kind authoritative as to of formal which, in Fuller v. State that who charges purposes an accused had been Amend for of the Sixth charged by ment, arrested and warrant with a criminal inception mark the "probably right offense was to insist that an Texas, in which it cases waiver of effective counsel under Sixth relied do. admissibility Amendment was essential to the ensuing statements.” 829 present case 2. "There can be no doubt (Tex.Crim.App.1992). finally did But we not re judicial proceedings had been initiated Instead, the issue in we solve that, that case. found Williams the start of the automobile ride before assuming appellant even was entitled to Davenport from to Des A warrant had Moines. Amendment, counsel under expressly he had arrest, arraigned he been issued for his had been right, waived that there was Davenport judge on courtroom, warrant before adequate "an basis the record for a conclusion by the and he had been committed constitutionally acceptable, that his waiver was jail.” Amendment, court to confinement only Fifth but 97 S.Ct purposes well.” as Id. Hence, although purport Fuller does not be warning satisfactory charging or other in time of Art. 15.17 hear- indictment [Nehman’s] ing.” strument has been returned. contrast, procedure according elsewhere, purpose of an provides taking which the state of Texas arraignment identify accused impartial persons under arrest before an plea charging instru hear his State’s opportunity the earliest 26.02; ment. Crim.Proc.Ann. art. Tex.Code way plainly designed, joining not as a of issue Alabama, 52, 4,n. Hamilton v. 368 U.S. 54 pleadings, on criminal but as a means of 157, (1961); 4,n. 7 114 82 S.Ct. 158 L.Ed.2d protecting rights suspect dur essential 433-442; §§ 21 22 Am.Jur.2d Criminal Law ing period following his arrest until the §§ Law 356-364. It is often C.J.S. Criminal justice system decides whether to initiate a the first adversarial confrontation between prosecution against him.3 formal Code Crim. government prosecuting an at accused and Proc. art. 15.17. The fact that a determina torneys filing after the of formal criminal part tion of cause is often made as a charges. procedure requires there to Texas procedure of this does not turn it into cases, arraignment felony “[i]n be an all any prosecution, criminal more than a deter indictment, pun and all misdemeanor cases by justice probable cause made mination of by imprisonment,” ishable Code Crim.Proc. issuing peace of the an arrest warrant 26.01, arraign provides art. and that “[n]o living grand jury investigation room or a place expiration until the ment shall take prosecution. conducted in secret is a criminal days day on at least two entire after the 103, 120, Pugh, 420 95 See Gerstein v. on copy which a of the indictment was served (1975) (“[A]d- 854, 866, 54 43 L.Ed.2d defendant, copy unless the to such versary safeguards are not essential for the waived, delay be or unless the or to such required by probable cause determination art. is on bail.” Crim.Proc. defendant Code Amendment”). the Fourth an Nothing could be clearer than that 26.03. variety in- felony system contemplates a arraignment in all cases of cannot Our indictment, obliged to public are prior of an stances which officials occur return there reason to believe expressly law forbids it and decide whether is both because the penal person laws charge upon that some has offended because there is no formal people are de- plead law until an of this state.4 Sometimes which to under Texas states, examining occasionally Among proceedings is the tri procedure in 4. these 3. In other al, "arraignment.” mandatory originally When it in all cases or is called an cludes considered is, arrest, sometimes the United States warrant. Texas law with or without inception conclusively mark the considers it to distinctly by procedure adversarial makes this Kirby adversary judicial proceedings v. because providing and cross examination for the direct Illinois, 406 U.S. witnesses, by parties representation of the their (1972) (plurality opinion) once 32 L.Ed.2d 411 repre attorneys, appointment of counsel to speculated judicial proceedings are often that defendants, indigent application of the sent "arraignment.” Michi of an initiated means gen evidence as in criminal trials same rules of 3, Jackson, gan 629 n. 106 S.Ct. v. 16.01, 16.06, 16.- erally. arts. Code Crim.Proc. Brewer, (1986); 1404, 1406 n. Compare Pugh, at 114 n. v. Gerstein In 430 U.S. at however, 97 S.Ct. n. 15. It at 863 n. 115 n. 95 S.Ct. magistrate appearance to re before examining contemplated trials be that was once warnings statutory after arrest is neither ceive in all cases the same held soon after arrest an it serve the function of denominated nor does brought suspect before whom arraignment, to mark the and it is not considered Code in order "to under article 15.17 adversary proceedings. inception Wyatt See of formal made,” accusation the truth of the examine into (Tex.Crim. 16.01, decide wheth art. and to Code Crim.Proc. Estelle, opinion); Tarpley App.1978) (panel jail, dis suspect committed to er the should be (5th Cir.1983) cert. denied 464 U.S. F.2d Crim.Proc. charged, to bail. Code or admitted 697; McGee Garcia, parte (5th art. 16.17. Ex Estelle, Cir.1980) cert. F.2d 1977); parte Wright, (Tex.Crim.App. 138 Tex. Ex denied deci Our Crim.R. 136 S.W.2d also Garcia v. 626 S.W.2d See however, held, an long since sional law has (Tex.Crim.App.1981); Thomas requested by only necessary if trial is (Tex.Crim.App.1980); Lane suspect, only indictment has and then if no (Tex.Crim.App. charging 1974). yet presented the same offense. been until the State has filed give appearance or made to bonds as a tained people accusatory upon result of such decisions. But these which a pleading kind of subjected un- are not lawfully In might be based.7 felo- conviction indictment, der the laws of Texas until an indictment, nies, unless it pleading is information, charging or other instrument punish- For misdemeanors has been waived. exception prose- With the of criminal filed. complaint and by imprisonment, it is a able courts, justice municipal cutions courts, justice municipal information. complaint warrant of arrest based on a show- my may alone. it be formal suspect ing probable cause to believe that a meaningless Texas law judgment, it is alleged, although committed the offense suffi- formally regard as adversarial events detention, cient to authorize his filing of such an transpire which before the which a conviction kind instrument they accusatory pleading. To the extent may be obtained.5 Nehman, otherwise, I overrule hold would begins prosecution Criminal in Texas when Lucas, Janecka, and Barnhill. officially announces that it will seek State many I realize that incidents the investi suspect violating convict the state’s process prior gative and administrative begin criminal laws. It does not when the inception adversarial af merely requires security State detains ways suspects important criminal fect appearance suspect pending comple- of a on such occa that the assistance counsel investigation tion of its and decision whether might genuinely helpful be to them. sions State, prosecute. See Dunn v. 696 S.W.2d suggested But “our cases have never (Tex.Crim.App.1985) opin- (plurality 565 provide a purpose of the to counsel is to (“The ion) subsequent ques- mere arrest and preindictment private inves defendant with a tioning person of a do not constitute a suffi- Gouveia, tigator!.]” U.S. trigger cient formalization of Burbine, 5.Ct. at 2299. See also Moran v. requirement of counsel under the Sixth 412, 431, 1135, 1146, Amendment.”)6 475 U.S. S.Ct. Accordingly, I would hold (1986). merely L.Ed.2d 410 Persons sus formal is not initiated in purposes pected simply Texas for are not covered of crimes (Tex. State, filing necessary, See Trussell v. 414 S.W.2d of an information if does Moreover, Crim.App.1967) progeny. adversary proceed- and its inception mark the of formal finding of no cause does not foreclose ings 623 S.W.2d 651 in Texas. Holland subsequent grand jury Compare indictment. (Tex.Crim.App.1981); Wellsv. Alabama, Coleman v. (Tex.Crim.App.1974); Bass v. (1970). 26 L.Ed.2d 387 To the extent that these (opinion (Tex.Crim.App.1968) cases, preliminary hearings are still held in some submission). original on governed by pertinent to counsel is statutes. But the trial is not itself plurality opinion be- 6. Dunn is denominated prosecution, nor does it ever result in joined by only judges. it four Its cause was formally charge an official decision the sus result was the reversal of a conviction ultimate pect Compare with a criminal offense. Moore v. grounds. Amendment Yet the three on Fifth Illinois, 434 U.S. at 98 S.Ct. at 464. judges opinion who without did not dissented they disagreed clear that with the Sixth make it 5.It is well to remember context that the in this analysis. judges Neither did the two "complaint" word has come to mean at least two opin- in the result with written who concurred First, things under different Texas law. it de- Consequently, impossible it to tell how ion. scribes a sworn affidavit the basis of which many actually agreed proposition judges with the magistrate may issue a warrant of arrest. Tex. is cited here. All that can be for which Dunn 15.04, 15.03(a)2, Code Crim.Proc.Ann. arts. 15.- gleaned is that at least from the official record sense, 05. In this it does not refer to a criminal nine, four, many possibly as did. pleading. Woolridge v. (Tex.Crim.App.1983). 814 n. 6 But the term is course, nothing says today the Court will 7. Of charging also used to describe the entire formal suspects implied affect the prosecutions instrument in Class C misdemeanor during and, confronta- under the Fifth Amendment similarly, part charging essential representatives in which with of the State tions instrument in other misdemeanor cases. Tex. 2.04, 2.05, 21.22, 45.01, may privilege against be their self-incrimination Code Crim.Proc. arts. Arizona, 45.16, sense, course, jeopardized. U.S. See Miranda v. 45.17. In this second filing complaint, contemporaneously of a S.Ct. Rather, the Sixth Amendment. applies only there

counsel assured formally prose has “committed itself to

State Kirby, 406

cute.” 92 S.Ct. at U.S. mean, course,

This does not altogether inapplicable

Sixth Amendment is every nonjudicial or nonadversarial en agents of

counter between the accused and Alabama, government. Powell v. 77 L.Ed. 158 may Clearly, be in circumstances which are neither

effective adversarial, formally as line nor such interrogations,

ups, police psychiatric ex Texas, 492

aminations. See Powell v. (1989); L.Ed.2d 551 S.Ct. Moulton, 159, 106

Maine v. Smith, (1985); L.Ed.2d 481 Estelle v. L.Ed.2d 359 Wade,

(1981); United States v. 1926, 18 But L.Ed.2d 1149 ap counsel

the Sixth Amendment instances, at all other criti

plies such stages prosecution, of the criminal wheth

cal investigative, only when the

er adversarial proceed

encounter occurs after adversarial formally in a court of law.8

ings begun are remarks, join I these

With additional

opinion of Court. LYON, Jr., Appellant,

Edward B. Texas, Appellee. STATE

No. 225-89. of Criminal

En Banc.

Jan. (Vernon added). (emphasis Supp.1991) provides art. Code of Criminal Procedure 8. Our own that, protection on its face affords less is entitled It therefore in a criminal matter "a defendant Amendment, during at least than does the represented in an adversarial to be stages process. postindictment proceeding.” Proc.Ann. Tex.Crim.Code

Case Details

Case Name: Green v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jan 12, 1994

Citation: 872 S.W.2d 717

Docket Number: 1388-91

Court Abbreviation: Tex. Crim. App.