Trevino v. State

565 S.W.2d 938

Tex. Crim. App.

1978

Check Treatment

Jose Leonel TREVINO, Appellant, v. The STATE of Texas, Appellee.

No. 56424.

Court of Criminal Appeals of Texas, En Banc.

May 24, 1978.

567 S.W.2d 518

trial she had seen that photograph of the appellant and identified him as one of the men who had robbed her.

A witness who has identified a defendant at trial may testify that prior to trial hе identified a photograph of the defendant, or the witness may testify that prior to trial he identified the defendant while the defendant was in custody. E. g.

Lyons v. State, 388 S.W.2d 950 (Tex.Cr.App. 1965); ; ; . The pretrial identification procedure must, of course, meet constitutional standards. ; ; ; ; ; .

The appellant says that cases such as

Lyons v. State, supra, and , are not supported by precedent, are unsound, and should be overruled. The appellant‘s contentions are not in accord with the views expressed by Wigmore:

“Ordinarily, when a witness is asked to identify the assailant, or thief, or other person who is the subject of his testimony, the witness’ act of pointing out the accused (or other person), then and there in the courtroom, is of little testimonial force. After all that has intervened, it would seldom happen that the witness would not have come to believe in the persоn‘s identity. The failure to recognize would tell for the accused; but the affirmative recognition might mean little against him. (Footnote omitted.)

“The psychology of the situation is practically the same as when recent contrivance is alleged. To corroborate the witness, therefore, it is entirely proper to prove that at a former time, when the suggestions of others could not have intervened to create a fancied recognition in the witness’ mind, he recognized and declared the present accused to be the person. If, moreover (as sometimes is done) the person was then so placed among others that all probability of suggestion (by seeing him handcuffed, for example) is still further removed, the evidence becomes stronger. The typical illustration is that of the identification of an accused person at the time of arrest

“This is a simple dictate of common sense, and was never doubted in orthodox practice. That some modern courts are on record for rejecting such evidence is a telling illustration of the power of a technical rule of thumb to paralyze the judicial nerves of natural reasoning. (Footnote omitted.)” (Emphasis in original.) 4 Wigmore, Evidence, Sec. 1130 (Chadbourn rev. 1972).

It is apparent that the rule of

Lyons v. State, supra, which allows а witness to testify that prior to trial he identified a defendant, but which does not allow extraneous evidence—such as the testimony ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of a police officer—that prior to trial the witness identified a defendant, is more restrictive than the view expressed in Wigmore.

The trial court did not err in admitting the photograph and the complainant‘s testimony that prior to trial she had seen that photograph and had identified the appellant as one of the men who robbed her.

The judgment is affirmed.

Paul Banner and Cornel Walker, Greenville, for appellant.

Felipe Reyna, Dist. Atty. and Rodney Gоble, Asst. Dist. Atty., Waco, for the State.

OPINION

ODOM, Judge.

This is an appeal from a felony conviction for possession of marihuana. On his guilty plea to a jury appellant was assessed a punishment of ten years’ confinement and a five thousand dollar fine.

In one of his grounds of error appellant contends he was deprived of his right to counsel at the hearing on his motion for new trial. Judgment was entered on November 2, 1976. Ten days later, on November 12, appellant filed his motion for new trial, alleging, inter alia, error in the separation of the jury without his consent after the court gave its charge, in violation of Art. 35.23, V.A.C.C.P. The hearing on the motion for new trial was set for December 1, the nineteenth day after the motion was filed.

The record clearly reflects appellаnt was denied counsel at the hearing on his motion for new trial. After the first witness called by the State testified, appellant was asked if he desired to ask any questions, and replied, “No, because I don‘t know what this is about. I don‘t know anything about my case. I don‘t know аnything about nothing. All I know is that I have to have my attorney to be here. That‘s all I‘m saying, my attorney have to be here.” When asked if he had any questions for the next witness, appellant replied, “Well, I don‘t know what to say, Your Honor. Like I say, I think my attorney has to be herе.” On numerous other occasions appellant reiterated his need for his attorney.

The record reflects appellant‘s counsel, whose office was in Greenville, received notice of the hearing and replied on November 23 by letter that he had a scheduling conflict. He informed the district clerk, “I will attempt to rearrange the same and according (sic) advise the court immediately if it is necessary to file a motion to continue this hearing.” The record does not contain a motion for continuance, nor does it reflect why counsel was not present at the hearing.

The right to counsel is fundamental ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in our system of justice. Amendment VI, United States Constitution; Art. I, Sec. 10, Texas Constitution. “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsеl.”

Powell v. Alabama, 287 U.S. 45, 68, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932). Just as “... appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected,” , so, too, does the right to retained counsel exist at every critical stаge of the proceeding. The fact that absent counsel was retained rather than appointed does not authorize the court to proceed in his absence. See, ; ; . Alternatives are available to the trial court when counsеl fails to appear without adequate excuse. See ; ; .

Without doubt the hearing on a motion for new trial is a critical stage of the proceedings. It is the only opportunity to present to the trial court certain matters that may warrant a nеw trial, and to make a record on those matters for appellate review. See, Art. 40.03, V.A.C.C.P.; Special Commentary to Art. 40.09, 5 Vernon‘s Ann. C.C.P. 154, at 156. From the record it is clear that appellant did not waive counsel, and was denied counsel at this critical stage of the proceеdings.

The State argues that failure to hold a hearing on the Art. 35.23, supra, separation of the jury issue would have resulted in a record reflecting reversible error, and that time limitations required that the hearing not be delayed.

As to the first argument, the record of the trial does reflect that the jury was allowed to separаte over appellant‘s objection after the court gave ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍its charge. The State is correct that this would present reversible error in the absence of a showing that the separation did not harm appellant.

Skillern v. State, 559 S.W.2d 826 (1977). The burden is on the State to show no harm. .

It is also true that a motiоn for new trial generally must be determined within twenty days or it will be deemed overruled by operation of law and that the time for conducting the hearing may not be extended by the trial court.

Chappell v. State, Tex. Cr.App., 519 S.W.2d 453; Art. 40.05, V.A.C.C.P. A hearing conducted after a motion for new trial has been overruled by operation of law is not authorized and will not be considered on appeal. . Nevertheless, it is also true that evidence heard after twenty days from the filing of the motion for new trial will occasionally be considered. In , the defendant filed a motion for new trial supported by a juror‘s affidavit and alleging jury misconduct. On appeal the defendant contended the motion was overruled by operation of law prior to the hearing at which the State produced witnesses contradicting the defendant‘s affidavit. The Court on appeal stated the trial court had granted the State a continuance of the hearing in order that it could have more time to secure evidence on the issue of jury misconduct. The Court held, “In the interest of justice, the action of the court was proper in order to show that the affidavit attached to appellants’ motion for new trial did not reflect the true facts.” See also, . Thus, in this case whеn the motion for new trial came on for hearing and appellant‘s counsel was not present, the hearing could have been continued or recessed in the interest of justice to some date after the twenty day limit (the hearing was apparently on the nineteenth day) at which time appellant‘s right to counsel would have been protected.

The course of action taken here, however, of proceeding with the hearing when appellant did not have counsel and had not effectively waived that right, was not a permissible alternative. We hold appellant was denied his right to counsel at a critical stage of the proceedings against him. We now address ourselves to how this case should be disposed of in light of this error.

The error complained of occurred at the hearing on the motion for new trial. This event is fundamentally a part of the post-trial review process, and not a part of the trial itself, or of the procedures prerequisite to commеncement of the trial. Although the motion for new trial must be filed and disposed of before the sentence may properly be pronounced,

Carpenter v. State, Tex. Cr.App., 541 S.W.2d 446; ; , it is nevertheless a post-trial proceeding in that the time for filing the motion does not commence until thе ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍judgment is entered, including assessment of punishment and disposition of any application for probation. Art. 40.05, supra; ; . Thus, all trial issues have been decided by the time for the motion for new trial. That the hearing on such a motion is for the purpose of deciding whether the cause shall be retried (see Arts. 40.01, 40.07, 40.08, V.A.C.C.P.) and to prepare a record for presenting issues on appeal in the event the motion is denied (see Special Commentary to Art. 40.09 as cited above) demonstrates that it is part of the post-trial rеview process.

In cases where a defendant was denied counsel during the post-trial review proceedings under Article 40.09, V.A.C.C.P., we have abated the appeal for recommendation of proceedings at that stage at which the defendant was without the assistance of counsel.

Martinez v. State, Tex.Cr.App., 534 S.W.2d 693; ; ; . Because in the instant case appellant was denied counsel at a stage of the review process prior to sentence and notice of appeal, we set aside the sentence and notice of appeal and return the cause for a hearing on the motion for new trial and an orderly course of subsequent events. In the event appellant‘s motion for new trial is denied, sentence should then be pronounced and notice of appeal may be given. Thereafter the provisions of Art. 40.09, supra, should be followed, and the parties may waive such time provisions thereunder to which they are entitled as they may desire.

The sentence and notice of appeal are set aside and the cause is remanded to the trial court for a hearing on the motion for new trial and for the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍orderly conduct of subsequent post-trial proceedings.

DOUGLAS, J., dissents.

DALLY, Judge, dissenting.

The majority‘s grave concern, anxiety, and solicitude for what it says was the denial of appellant‘s constitutional right to counsel on the hearing of his motion for new trial, it appears to me, is a red herring. Without being granted rule-making power, the majority on its own muscle is now promulgating historically unprecedented new rules оf criminal procedure granting the State the right to a motion for new trial. This is without regard for long-established practice and is contrary to the spirit of Chapter 40 of the Code of Criminal Procedure. It is clear the appellant‘s counsel intended to and did abandon the motion for new trial so that it wоuld be overruled by operation of law. This is often done, and appellant‘s counsel had a perfect right to abandon that motion. In my opinion, appellant‘s counsel should continue to urge that the motion for new trial was abandoned so thаt he will not be considered ineffective in the representation of his client.

Since the majority of this Court has already found that this record presents reversible error, it is absurd to think the appellant wants his motion for new trial heard for that error to be сured. What need is there for the appellant to have his motion for new trial heard?

The majority is permitting the State to adopt the appellant‘s abandoned motion for a new trial and force a hearing of that abandoned motion; the rеsult is that the majority is granting the State a motion for new trial. I see no distinction between this and allowing the State to file its own motion for new trial. This appeal should be decided on the record now before this Court, and let the chips fall where they may. I vigorously dissent to the amendment of the Code of Criminal Procedure by the promulgation of these new rules of criminal procedure granting the State a motion for new trial.

ROBERTS, J., joins this dissent.