*1 the ser- closely it resembles placed system, faith Legislature breach the Book. panel, Holy him in voir intervention mentioned in the diring jury pent which is past a trial court not now Genesis, has 3. As we all Chapter fact, author of the ma- permitted. know, commit caused Eve to serpent jority opinion following: has stated eyes Appel- Her error in reversible prolonging “But when is not Barrett, likewise, has caused late Court. bounds, beyond examination reasonable he reversi- of this State to commit trial courts may pose any proper question desires.” eyes error, in the ble albeit State, Hernandez v. State, v. See Clark court. J. (Tex.Cr.App.1974) (Odom, Concurring Rosa, e.g., De La (Tex.Cr.App.1980); opinion). reasons, the decision For the above just attorneys I believe that as no affirmed, and should be Court of defend a prosecute will ever criminal State, v. and Barrett reversed, supra, no two will way, attorneys case the same the fail- overruled. To should be jury way. voir dire a the same panel Some things, to do these majority ure of the may spend five minutes with dissent. jury panel to determine which strike; others, prospective jurors will they J., MILLER, joins. spend are not and must gifted prospective deal of with the great time beliefs,
jurors, ferreting thoughts, their out ideas, etc., law as regarding the well
making backgrounds known their publicly subject. concerning particular
and beliefs following: This Court has also stated for a always “It is commendable trial promptness dispatch business WEINER, Petitioner, R. must salutary but result expedition, v. the risk of never be attained at Car- right.” party a substantial Respondent. DIAL, Judge, Preston State, ter 272 S.W. 100 Tex.Cr.R. No. Can ar- (Tex.Cr.App.1925). anyone jury to voir dire the gue Texas, Appeals of right? is not a panel substantial En Banc. its only puts approval 29, 1983. June reversing judgment on arbitrariness by goes but father Appeals, Court of the error the and makes the perfection game, sort of
equivalent playing some which, played correctly if unquestionably, commencement of unduly prolong the
will this. There is no need all of the trial. nor the prosecu- Neither arbitrary with an cope have to tion should limitation their in which conduct time voir dire examinations. respective State, ex- Barrett should be supra, I find that with all pressly overruled. destruction Barrett may eventually justice system cause State, citizenry our and the of faith loss
OPINION
CAMPBELL, Judge. is an for writ of This 5, Texas Constitu- mandamus. Art. Sec. cause “to tion. Petitioner has filed this Respondent payment to authorize compel for services Petition- Petitioner rendered er counsel.” court-appointed appellate
Petitioner, attorney, appointed by respondent, judge, represent a district Robert Williams on convic- tion in cause 81-CR-2029 in the 175th Judi- cial District compen- Court. Petitioner was sated for his Williams in of that conviction. Petitioner represented also Williams in the of a of bail pending appeal denial reduction compensation of the conviction. He seeks for representing Williams in that habeas corpus appeal.
Respondent by brief this Court first contends not with jurisdiction. in our mandamus Constitution, Sec. Texas restricts mandamus of this Court Respondent “criminal law matters.” ar gues nature, essentially case “is civil in because it is a claim for Petitioner, however, services.” asserts en titlement a matter compensation right under Article 26.05 of the Code of Procedure, provides “counsel de fend a or a accused punishable by misdemeanor imprisonment, Stevens, Mark K. Chapman, San represent or to Antonio, petitioner. provides schedule of hearing,” Millsap, Jr., Sam D. Dist. Car- Atty., and minimum compensation. amounts Schubert, roll George Hernandez, B. Jr. and provision compensa Davis, Michael L. Asst. Dist. San Attys., represent indigents Antonio, Huttash, Robert Atty., certainly State’s criminal law matters is itself a Walker, Alfred Austin, Asst. State’s Atty., criminal law matter.1 The first ar for the State. gument is merit. pursuant Chapter We are aware of the decisions in Ex ords V.A.C.C.P. Paprskar, Henson, opinions and State v. held the matters were not criminal attempted appellate jurisdiction Those cases were cases within the appeals petitions expunge dissent, Although urged rec- arrest to do Court. merits, petitioner matters, although
On an order ancillary contends all he is separate single entitled to fees for the encompass more than matter. and the conviction case, appointing peti- The order appeal. Respondent points out that Wil speci- tioner does liams’ was also fy him in the bail habeas *3 represent him in the bail habeas appeal was expressly by respondent. denied petitioner fact that appeal, and from the We also that that notice motion for a motion such additional requesting filed appointment signed by Williams and petitioner it that did appointment appears petitioner in the stated of “court- capacity appointment to not consider the appointed on direct of conviction corpus. the bail include habeas only.” added.) (Emphasis of this We conclude that under facts petitioner, that not the order did appointing mandamus, considered and represent an to Wil- appointment constitute and habeas prosecution the bail and corpus appeal, liams in the bail habeas corpus proceeding separate as causes re- de- accordingly the writ of mandamus is quiring separate counsel. appointing orders nied. Instead of challenging denial of in the appointment counsel It is so ordered. matter, habeas undertook Williams, represent contends his now ONION, Judge, concurring.1 Presiding appointment conviction also question proceed- presented The required habeas the bail counsel, appointed whether for the ing is felony an conviction purpose of of Y.A.C.C.P., Art. appoint- requires for such and who has been of represent ment counsel to an compensa- is entitled to additional appeal, “charged felony or with a a misdemeanor an order for the of purported article punishable by imprisonment.” The to issue a writ of habeas “the dictates that in such circumstances of con- (pending appeal bail reduce court shall one or practicing more viction). there are Petitioner contends him.” add- (Emphasis to defend he is for which entitled separate appeals ed.) provision compensat- Similarly, fees. separate counsel,
ing appointed Art. Sec. of that agree supra, speaks in terms of appointed counsel denied, be but I cannot mandamus should defend, rep- and counsel do that this court should agree resent an in a hear- ap- appointment that of of ing. require The basis appear statute does enough not broad pellate counsel was of counsel to ap- The proceeding.2 necessarily encompass in a criminal case be other squarely counsel pointment permits previous of rec- counsel in those cases declined to address 2. “Order” withdraw, the issue be con- of whether matters could states: ord matters manda- criminal law sidered within the that David Weiner “It is further ordered mus of the Court. To the extent De- of record for the parte Paprskar any conflict, we overrule Ex Williams, fendant, in his stead.” Robert Henson, State response to a motion order was in Such asking previous and stat- to withdraw judicial This take that the court should notice “agreed ing Weiner Chavarria, Jr., Judge Honorable Phil is now Defendant’s, Robert consented assume County. the 175th District Court Bexar Williams, appeal.” style changed. The of this cause should be Dial, Honorable Preston now an Associ- Justice ate of the Fourth Court of San Antonio. places upon responsi- argument. He appeared awesome made oral bility all vacated the order entered taking actions and remanded the cause for indigent appellant by respondent to assure 22, 1982. rights hearing February Counsel See Ex protect and to his interests. (Tex.App.- cannot be delimited what is contained or 1982). Petition for Discretion San Antonio appointment. contained in order of ary May Review reasons, There are to deny other application. the mandamus what The record is silent as to then tran- spired pending to the matter bail Robert Williams was convicted appear It does aggravated peace assault on a officer and assault aggravated the conviction punishment years’ impris- assessed of five officer in the peace pending is still San onment. given. Ap- Notice Antonio Court of Petitioner has parently was held without bail *4 by Bexar already $350.00 following Williams an ap- conviction. filed for his services in connection with County plication for writ of habeas corpus and as a appeal upon approval pending $25,000.00. result bail on was set appeal at respondent. 21, On January Williams filed a “ap- second plication of for writ habeas corpus” alleging petitioner. sought Weiner Subsequently, appeal $25,000.00 bail on of was handling the payment additional application excessive. The was “Denied corpus concerning on the habeas 1982, on hearing” 21, without January by Being respon- unsuccessful with the bail. 1982, On respondent. January 27, Oli- dent, of petitioner sought a writ mandamus Sutton, ver C. of record from Antonio the San Court Williams, filed motion to withdraw unpublished per denied in Relief was suggested petitioner 8, 1982, on panel opinion curiam December Weiner had appeal. consented handle the only that the limit- ground court 1982, 28, On January per- the respondent ed to issue a writ mandamus mitted Sutton to withdraw as jurisdiction. its own Petitioner enforce application Weiner was rep- has now filed for a 2, requesting resent mandamus in appeal. February writ of On him a respondent pay that the be ordered Williams filed a written “Notice fee not less than Appeal (Habeas Corpus)” gave $350.00 which corpus of the habeas proceeding notice of appeal to the Court of “on Appeals bail on his application writ corpus, of habeas 21,1982 which was January filed record, throughout As is conceded ” was denied a hearing without .... On application refused the second respondent
the same date Williams and hearing. habeas Weiner filed a motion for It is refused to obvious from the order the writ habeas grant corpus.3 issue or the habeas corpus application without a refusal is no from a to issue There hearing. Attorney Weiner volunteered to even after grant writ of habeas accept the appointment. February On hearing (to grant whether to determine 1982, the respondent denied the motion re- Noe, writ). 646 parte Ex Clifford questing appointment of counsel. parte 230 Ex (Tex.Cr.App.1983); S.W.2d was Moorehouse, Weiner (Tex.Cr.App. 614 450 S.W.2d Ap notified San Antonio Court 538 637 1981); parte Mayes, Ex S.W.2d peals Nichlos, argument of oral 245 (Tex.Cr.App.1976); parte submission Ex the appeal relating to the See also Ex (Tex.Cr.App.1952). habeas 704 S.W.2d (Tex.Cr.App. 20 1070 parte Hughes, Cause No. 04-82-00056-CR. S.W.2d court, corpus, 3. This is not a case where after the trial the writ of habeas and after issues filing grants application, hearing, grants of a habeas or denies relief. 790 action Smith, 649, which then filed. Such
1929);
parte
Ex
85 Tex.Cr.R.
heightened the confusion.
(Tex.Cr.App.1919);
parte
299
Ex
S.W.
(Tex.Cr.App.
Blankenship,
S.W.
parte
in Ex
the confusion arose
Some of
Y.A.C.C.P.,
44.34,
1900); Article
Note 5. Fowler,
(Tex.Cr.App.1978),
jurisdic
courts do not
held that
the Court
when this court
Nichlos, supra.
parte
such cases. Ex
longer
review
Wade,
parte
also Ex
147 Tex.Cr.R.
to bail pending
matters pertaining
Ex
(Tex.Cr.App.1944);
S.W.2d 690
right of
since a
specific
parte Mayes, supra.
statute
by applicable
provided
V.A.C.C.P., as
c, d and
(Article
g,
pleadings
designated “applica-
were
§§
636, ch.
Leg., p.
65th
Acts
corpus.”
appli-
tion for writ of habeas
amended
234).
Spaulding, 612
hearing.”
parte
“without a
Ex
S.W.2d
cation
denied
concurring
adopted the
Appeal (Habeas Corpus)”
(Tex.Cr.App.1981),
“Notice of
Byers, 612
opinion
parte
in Ex
given
“application
from the denial of the
review
and held that
(Tex.Cr.App.1980),
corpus.”
for habeas
In Ex
from
bail on
(Tex.App.-San
pertaining
Antonio
of matters
hearing.” State, citing er than “writ” Basaldua a a where (Tex.Cr.App.1977), meth- S.W.2d recognized The court then applica- was considered purported appeal appeal by to obtain bail on writ ods — 44.04, corpus. tion for writ of habeas Article V.A.C. C.P., but made no distinction between proceedings ques- in my opinion, ruling vacating the court’s two in its proceedings. tion were habeas hear- remanding the matter for a order appli- the habeas respondent denied ing. appeal a reduction in bail cation grant He to hearing. refused in without a appears
It the Court This action corpus. of habeas issue the writ that this court should and it error did was not appealable. than rather granted to refusing err discretionary review thereafter petition for 44.04, supra, Acts appeal was amended appear the notice 6.Article It does not Right subject timely given Leg., p. ch. matter was § even if 67th Fowler, appealable. appeal to Cf. Ex accorded now is App. 1978). (Tex.Cr. 44.34, supra, procedure deals with the 5. Article preparing record from an habeas order. order to Williams on the failure take on every step
of a matter that Re- list is authorized to appealable. is on spondent did not later err in behalf while defendant’s said “appeal” compen- after he had already part majority appears rely Since sated for the as- aggravated V.A.C.C.P., 26.04, its con- Article a peace Clearly sault on officer conviction. State, clusion, following Curry mandamus would not lie cir- under these (Tex.Cr.App.1972), be- cumstances. pertinent: comes hearing remedy. taken even if the court refused without a of habeas sought. be secured. sonably motion to reduce bail on establishment tive adequate cle still would not be entitled to the relief 599. Petitioner has not sought. he does not have §§ Even 44.04, supra, 2 and 7. Mandamus does not lie where relator has another remedy if It will not issue unless it is rea- Mandamus is an the second remedy corpus” could be considered Tex.Jur.2d, Mandamus, entertain the to obtain the the right another Tex.Jur.2d, Mandamus, “application plain, obtain demonstrated that is same, plain enforcement or extraordinary effective and under the relief and effec- requested. sought could § Arti- be p. tain misdemeanor tain the demeanor cases counsel for person convicted of to be less than fee ment’ misdemeanor. conclusion of a bona fide Ann.C.C.P., relating statutes is there C.P., sel Court of Criminal “ “While Article ‘(e) ( [*] relates to the or habeas be set [*] For the following [*] counsel in t indigents $350; ‘punishable by prosecution requirement sections: cases, Appeals, appointment of trial either a matters does Vernon’s Ann.C. felony nowhere but for an cases mis- felony in no event reasonable that coun- imprison- Vernon’s to the in our final or a con- cer- not necessary to further discuss provide “While the statutes thus *6 whether mandamus also could be right on ap- the to counsel compensation, a discretionary because or duty act peal necessarily be of constitution- must involved which was not ministerial in char- al nature. Tex.Jur.2d, 18, acter. Mandamus, 37 § Wainwright, v. U.S. “Gideon pp. 617-618. (1963) extend- L.Ed.2d 799 S.Ct. right to counsel I ed the Sixth Amendment agree
While with majority the proceedings by criminal virtue application for writ of state mandamus should be Gideon denied, the Fourteenth Amendment. agree I cannot with the reason ad- indigent an in dealt with trial counsel for majority vanced. The man- deny California, Douglas application case. damus “the basis that S.Ct. L.Ed.2d order U.S. appointing did not consti- (1963), day same as Gide- tute decided appointment an ” on, (sic) indigent that an has state held corpus appeal in .... assigned constitutional I express my must concern about regard to the on his first implications the holding. ap- An order regardless of the of the merits indigent an pointing for appeal. holding of the seriousness required defendant should not be to itemize process the due primarily was based steps that counsel is authorized to un- Amendment.” clause of the Fourteenth on appeal. dertake An defendant 26.04, supra, re- clear that Article is entitled to the effective is assistance necessity appointment of counsel on counsel should not lates to Such itself to trial It does address undertaking be limited restrained his counsel. at- appointed court because Weiner, matter of R. went torney, counsel on Hon. David is a Douglas federal constitutional right, his client. unfor- Today, extra distance for California, supra, for which is Mr. he tunately, we must tell Weiner that provided in Article part for of the compensated will not 26.04, supra, anal- should be used performed for his work he has ysis question before this court. nothing law because there is in our client handling, for providing I agree While do not basis calling order express without an court for writ of manda- case, such, corpus appeal even a bail habeas mus, I in the result reasons concur for the he was though appointed earlier stated. purposes. trial indigent defendant for JJ., MILLER, join McCORMICK If, hope exception. I that such is opinion. treat- trial courts of State are TEAGUE, desire to a deni- Judge, concurring. ing defendants who I differently, then fear it will al of bail I I am reluctantly concur because long this Court some Fed- not be anything unable find the law which timely complaint by receives a eral Court provides appointed rep that counsel he is being dis- an pur resent indigent defendant for of his against, simply because criminated poses what perform Judge must Clinton “ safely I believe can indigent. status as refers to ‘an dissenting opinion in his that such will receive predict of, cillary matters’ that are the interest then, bring- Perhaps, from our courts. of, rebound to the benefit Court, causing this cause ing client,” handling a such as bail habeas cor exception displayed for the such to be pus appeal expectation case. Without see, Bar made Bench and to Mr. Weiner has being per work to be contribution to the a vital and formed, a appointed attorney should of this State. jurisprudence never be required to do more than what for, him calls appointing although “going beyond duty” call of is CLINTON, dissenting. Judge, certainly Simply to be lauded. because lan- reads defend an has V.A. in Articles 26.04 and guage § indigent defendant does not mean that counsel, C.C.P., An literally. too adopted has such client for all purposes attorney, charged a retained like perform any ancillary must matters” that are handling “ancillary such may be related to the case which he has *7 of, redound to in the interest appointed. been of, Inhibiting full, robust benefit client. However, find fault the action I do the in- and conscientious judge as the appellant, as well digent de- counsel to handle the accused, legal profession ill serves fendant’s because appeal, justice system. the criminal fo- unquestionably brings such action into I dissent. spectre past of crimi- history cus jurisprudence; nal invidious and unneces- through failure to treat
sary discrimination words, In had the equally. all citizens other sufficiently cause in this endowed, he would materialistically a bail problem pursuing instance, tolerably fair defendant received a