Martinez v. State

¶1concurring.

¶2While agreeing with the majority that the conviction should be affirmed, I disassociate myself from that portion of the opinion that unnecessarily and incorrectly decides that appellant was not entitled to counsel until formal charges were filed under existing Texas case law.

¶3To be sure, the specific question has never been answered and so we have the remand to the Court of Appeals in Port Worth for consideration of the very question in the first instance. See Forte v. State, 707 S.W.2d 89 (Tex.Crim.App.1986) (en banc) affirming in part and reversing and remanding in part Forte v. State, 686 S.W.2d 744 (Tex.App. — Fort Worth 1985) (on rehearing).

¶4The majority opinion relies on Turner v. State, 486 S.W.2d 797 (Tex.Crim.App.1972) and Keys v. State, 486 S.W.2d 958 (Tex.Crim.App.1972). Neither case, however, stands for the proposition relied upon by the majority. In each instance the only consideration before the court was the applicability of the Sixth Amendment of the United States Constitution and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) to a challenged trial court ruling on right to counsel. In no instance has the question been addressed bearing on the applicability of Article I, section 10 of the Texas Constitution.1

¶5In the instant case appellant’s challenge on appeal as well as before the trial court, the right to counsel question is phrased in terms of United States v. Wade, supra. Miranda v. Arizona, 384 U.S. 436, 87 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) and the holding in Forte v. State, 686 S.W.2d 744 (Tex.App. — Fort Worth 1985). Appellant thus raises only the applicability of the federal constitution to a right to counsel situation.

¶6No challenge on state grounds is before this court. Thus, we should refrain from gratuitously offering an erroneous opinion.

¶7Otherwise believing that the result is correct, I concur with the majority opinion.