Empy v. State

¶1dissenting.

¶2I wholly concur in the reasoning and conclusion of Brother T. Davis’s dissent, but further explication of constitutional and statutory construction principles is called for.

¶3It has never been determined, as a matter of federal constitutional law binding upon this Court, whether a criminal defendant’s right to counsel via the due process clause of the Fourteenth Amendment is applicable to criminal defendants who do not suffer the pains of actual imprisonment. That particular question has been left open and anything appearing to the contrary in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), is dicta. The Sixth Amendment right to counsel has been considered a fundamental right essential to a fair trial which the states are required to accord criminal defendants under the Fourteenth Amendment. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The Supreme Court in Gideon overruled Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), a case in which it was decided that the right to counsel in capital cases as set forth in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), was not applicable across the board to non-capital prosecutions. The court in Betts, supra, concluded that the right to appointed counsel was not a fundamental right essential to a fair trial, but rather a matter of legislative policy. (As a tangential matter it is interesting to note that the Texas Legislature decided as a matter of legislative policy in 1965, two years after the decision in Gideon, supra, to place upon the courts in this State the mandatory duty of appointing a practicing attorney to defend any criminal defendant charged with a “misdemeanor punishable by imprisonment” when indigent. See Article 26.04, V.A.C.C.P.)

¶4The cases dealing with the right to appointed counsel were concerned with the inherent disadvantage of pitting a layman, untrained in the law, against prosecutors who have the benefit of a legal training and the resources of the government on their side. This imbalance of advantage would exist regardless of the nature of the penalty assessed. Of some relevance to this consideration is the fact that even convicted mis-demeanants have -the right to appeal to this Court, provided their fine is at least in excess of $100.00 when imposed by a county court, a county criminal court, or a county court at law. See Articles 44.02 and 4.03, V.A.C.C.P. Yet, of what use is such a right when any errors the misdemeanants seek to have this Court review must be properly preserved? See Zillender v. State, Tex.Cr.App., 557 S.W.2d 515; Article 28.01(6), V.A.C.C.P.; McCall v. State, Tex.Cr.App., 540 S.W.2d 717; Milton v. State, Tex.Cr.App., 549 S.W.2d 190; Reynolds v. State, Tex.Cr.App., 506 S.W.2d 864; Writt v. State, Tex.Cr.App., 541 S.W.2d 424 (preserving illegal search and seizure errors); Articles 27.02(1), 27.08, 27.09, V.A.C.C.P.; American Plant Food Corporation v. State, Tex.Cr.App., 508 S.W.2d 598 (preserving error in charging instruments); Article 40.09(6), V.A.C.C.P.; Toler v. State, Tex.Cr.App., 546 S.W.2d 290 (creating a Bill of Exception); Duncantell v. State, Tex.Cr.App., 563 S.W.2d 252; Bouchillon v. State, Tex.Cr.App., 540 S.W.2d 319 (variance between trial objection and ground of error alleged on appeal fails to preserve error); Cowan v. State, Tex.Cr.App., 562 S.W.2d 236 (general trial objections preserve nothing for appeal); Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); and Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (contemporaneous objection rule vis-a-vis federal post-conviction remedies). The foregoing citations are not an exhaustive survey of statutes and cases which set up rules for preserving error for purposes of appeal, but are indicative of the complex procedural matrix any criminal defendant faces, regardless of the ultimate punishment assessed. There has been no indication that these rules apply differently to pro se misdemeanor appellants. Thus, to deny criminal defendants charged with misdemeanors the assistance of appointed counsel when indigent effectively denies *535them their right to a meaningful appeal, not to mention the myriad benefits counsel can provide in the trial context itself.

¶5An additional consideration which is specifically applicable to the case at hand is the collateral consequence that flows from appellant’s plea of guilty in this case, notwithstanding the penalty assessed. Under Y.T. C.A., Penal Code, § 31.03(d)(4)(C), the conviction of appellant upon his plea of guilty could be used subsequently for enhancement purposes. Without the presence of counsel to advise appellant of the law relating to his case and the consequences of his plea, his plea of guilty could not be knowingly and intelligently entered. Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976).

¶6I would hold, therefore, that as a constitutional principle any criminal defendant faced with a possible term of imprisonment, regardless of the charge’s classification, is entitled to the appointment of counsel when indigent. The penalty ultimately assessed would be immaterial.

¶7Yet, we need not predicate our decision in this case upon a constitutional foundation in light of the expressed legislative position found in Article 26.04, V.A.C.C.P.1 No authority is cited for the unusual procedure by which the majority interprets a 1965 Texas mandatory statute by the dicta of a U.S. Supreme Court case occurring seven years after the enactment of the statute. It is even more difficult to understand why the majority would, by way of this unique method of statutory construction, substitute a subjective for an objective test for determining when a criminally accused indigent is entitled to the appointment of counsel. The pitfalls of this new “subjective” test are addressed by Judge T. Davis’s dissent, supra at 532.

¶8Further, the majority’s novel method of statutory construction ignores the commonly accepted meaning of the word “punishable” in Article 26.04, V.A.C.C.P. Webster’s New International Dictionary, 2nd Edition, defines “punishable” as the “[Djeserving of, or liable to, punishment; capable of being punished by law or right; . . . .” Id. at 2013. We can readily assume that the Texas Legislature realized the difference between the words “punishable ” and “punish ed.”

¶9Finally, using the decision of the United States Supreme Court in Argersinger v. Hamlin, supra, to decide the appropriate statutory construction of Article 26.04, V.A. C.C.P., ignores a rudimentary distinction between the decision-making process of the United States Supreme Court and the Texas Legislature. When developing constitutional doctrine, the United States Supreme Court must be cognizant that its rulings will be binding on all state courts pursuant to the Supremacy Clause of the United States Constitution. As a result, that Court’s constitutional decisions are carefully circumscribed to address only the issue before them on the available record. On the other hand, each state legislature is entitled to experiment with its rules of criminal procedure within the boundaries of the Bill of Rights. See Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) (Goldberg, J., concurring opinion); Friendly, The Bill of Rights of the Code of Criminal Procedure, 53 Calif.L.Rev. 929 (1965). Article 26.04, V.A.C.C.P., reflects what this state’s legislature deemed to be the appropriate scope of a criminal defendant’s entitlement to the assistance of counsel. If the burden imposed by this statute is so great that the administration of justice in Texas is jeopardized, it is the responsibility of the legislature to take the appropriate actions to correct that evil. However, *536no showing has been made that the administration of justice in Texas is somehow jeopardized by Article 26.04, V.A.C.C.P. It should therefore apply as written.

¶10In conclusion, I pose this question to the majority: If, as the majority holds, the rule is simply that in the event counsel is not afforded an indigent charged with an offense carrying possible imprisonment, the sentence cannot include imprisonment, then, who is to advise the indigent defendant of this critically important point of law in the event imprisonment is nevertheless imposed?

¶11In light of the foregoing, I respectfully dissent.