Neal v. State

TEAGUE, Judge,

dissenting.

Under the peculiar facts and circumstances that are presented in this case, I am unable to agree with that part of the majority opinion that holds that the State established that appellant affirmatively and knowingly waived his right to have the assistance of counsel at his trial. Therefore, I respectfully dissent.

I first point out that Jack G. Neal, appellant, was originally indicted and tried in another cause for allegedly committing the same offense as the one alleged against him in the indictment in this cause. A mistrial was declared in the first trial, during which appellant was represented by counsel of his choice. However, for reasons not reflected in the record, that attorney’s legal representation was terminated after the first trial had ended. Subsequent to the declaration of the mistrial, appellant was reindicted. I find that it is this rein-dictment that caused appellant to be in the predicament that he found himself in on the morning that he was forced to go to trial without counsel.

It is obvious from the record that one of the concerns the parties, and the trial judge, had at the first trial was whether the indictment in that cause was sufficient to sustain a conviction against the appellant. And I find that this is what caused the mistrial of the first trial, and in turn caused the State to reindict appellant. From the record, there also appears to have been a serious question whether the new indictment would also sustain a conviction against appellant. In light of this background, it is understandable why appellant challenged the validity of the rein-dictment, through a pro se motion to quash, without the assistance of counsel. In sum, as a licensed attorney who appears to have been just as competent as any other licensed attorney of this State to prepare and file a motion to quash the indictment, I find that until the trial judge overruled the motion to quash the indictment, there whs no need on appellant’s part to employ another attorney to represent him at his trial — especially when there might not be a trial if the trial judge sustained his pro se motion to quash. By implicitly holding to the contrary, I find that the majority is oblivious to the real world that exists beyond the summit where we sit.

The record reflects that appellant was not represented at trial by either retained or court appointed counsel. However, pri- or to the commencement of trial, and shortly after the trial judge denied his motion to quash the reindictment, appellant sought to secure the services of William F. Alexander, who was then a private practitioner in Dallas, to represent him for trial purposes. When appellant learned that Alexander was unable to represent him, he filed a pro se motion for continuance. The motion for *430 continuance was in all things denied by the trial judge.

Appellant presents for review twelve grounds of error. I would sustain appellant’s fifth ground of error, namely: “The Trial Court erred in allowing (or requiring) the defendant to go to trial without a lawyer or without a valid waiver of the right to counsel, in violation of the defendant’s rights under the State and Federal Constitutions.”

In pertinent part, the reindictment alleges that appellant,

“while a public servant, to-wit: District Attorney of the Eighth Judicial District of Texas, with intent to obtain a benefit for himself, intentionally and knowingly [took] and [misapplied] a thing of value belonging to the State of Texas, to-wit: a Texas State Treasury Warrant Number P088795 in the amount of $7,000.00, issued September 13, 1976, by the State Comptroller of Public Accounts pursuant to Item 14, Judiciary Section-Comptroller’s Department, Senate Bill 52, 64th Legislature, 1975, which came into the said Jack G. Neal’s custody and possession by virtue of his office and employment.”

This indictment attempted to allege a violation of V.T.C.A., Penal Code, Section 39.-01(a)(5). A jury found appellant guilty and assessed punishment at five years’ confinement in the penitentiary. A $5,000 fine was also assessed against appellant.

What is before this Court does not implicate the factual situation of an accused who requested, but was refused by the trial judge, the right to represent himself at trial. Cf. Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975).

The question that is before this Court is whether appellant voluntarily, knowingly and intelligently waived his constitutional right to have the assistance of counsel at his trial. I find he did not, and further find that the State did not establish that he did.

The Constitutional right to counsel at trial is guaranteed by the Sixth Amendment to the Federal Constitution, which is made applicable to the States by virtue of the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963). The following is axiomatic:

“Representation by counsel is crucial to the effectuation of all the other procedural protections which the legal system offers to the defendant. If those protections are to be meaningful and not merely a sham, it is essential, [unless affirmatively waived], that each defendant have legal assistance to realize their intended benefits.” American Bar Association Project on Minimum Standards for Criminal Justice. Providing Defense Services, p. 13 (1967).

In Johnson v. Zerbst, 304 U.S. 458, 462-463 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938), when the Supreme Court made the following statement, it implicitly held that the Sixth Amendment right to counsel may be waived: “The Sixth Amendment withholds from federal, [and now State courts], in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel.” [My Emphasis].

If an accused is tried without counsel, and the prosecution claims on appeal that the accused waived counsel, it has a heavy burden to demonstrate on the record that a voluntary, intelligent, and knowing waiver of the right to counsel actually occurred. Johnson v. Zerbst, supra; Trevino v. State, 555 S.W.2d 750 (Tex.Cr.App.1977). Thus, before it can be stated that appellant affirmatively waived his right to assistance of counsel, the record must clearly reflect that he did so voluntarily, intentionally, and knowingly, Johnson v. Zerbst, supra; Ex parte Bird, 457 S.W.2d 559 (Tex.Cr.App.1970), and such will not be presumed from a silent record, Von Moltke v. Gillies, 332 U.S. 708 , 68 S.Ct. 316 , 92 L.Ed. 309 (1948); Carnley v. Cochran, 369 U.S. 506 , 82 S.Ct. 884 , 8 L.Ed.2d 70 (1962); Barker v. Wingo, 407 U.S. 514 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972). Furthermore, courts will indulge every reasonable presumption against the *431 validity of such a waiver. Johnson v. Zerbst, supra; Ex parte Bird, supra.

I have carefully reviewed the record of appeal for evidence that appellant expressly waived his right to counsel, but find nothing therein that reflects or indicates that this ever occurred. It is necessary therefore to make the determination whether appellant, by acts, words, or deeds, made manifest an intent to waive counsel.

The State makes a two-part argument in its brief to support its contention that appellant waived his right to the assistance of counsel. It first argues that “a defendant may not manipulate his right to counsel to thwart a trial,” thus implying that appellant’s motion for a continuance was merely a tool that he used in order to prevent the trial from commencing. The State next appears to argue that because appellant was a former district attorney, “of much experience,” this was sufficient to establish waiver on his part to the right to counsel.

In making the latter argument, I believe the State not only overlooks the age old adage, that a lawyer who represents himself at trial has a fool for a client, but also overlooks the fact that when it comes to the right to have counsel at one’s trial, the Constitutional guarantee of the right to counsel does not make any kind of distinction between accused persons. Constitutionally, all accused persons are entitled to have the assistance of counsel at trial, unless such is affirmatively waived. This is true regardless of what the accused’s former status in our society might have been. I believe that both the Federal and State Constitutions protect absolutely the right of an accused to be represented at trial in the fullest measure, either by counsel of choice or by court appointed counsel, if indigent, unless there is an affirmative waiver of the right to counsel. Thus, the fact appellant in the past might have been a criminal district attorney, “with much experience,” is irrelevant and immaterial when it comes to deciding the question, whether, as an accused, he affirmatively waived his right to counsel at his trial.

A corollary to the Constitutional right to counsel is that the accused is entitled to counsel of his own choice and he should be afforded a reasonable period of time, as well as a fair opportunity, to secure such counsel. Garrett v. State, 94 Tex.Cr.R. 556 , 252 S.W. 527 (Tex.Cr.App.1923); Henderson v. State, 137 Tex.Cr.R. 18 , 127 S.W.2d 902 , 127 S.W.2d 903 (1939). This Court has held a trial court’s refusal to afford the accused such reasonable time and fair opportunity to secure counsel of his choice may constitute reversible error. Stroebel v. State, 366 S.W.2d 575 (Tex.Cr.App.1963).

Of course, the right to have reasonable time and fair opportunity to obtain counsel of one’s choice must be exercised by using due diligence, which, if it is claimed on appeal by the State that the accused did not exercise due diligence, will be determined from the facts presented.

The State’s main argument that appellant, by his actions prior to trial, affirmatively waived counsel for trial purposes appears to rest upon the course of events that occurred in the trial court prior to the scheduled date of trial, which was April 3rd. As previously pointed out, the State also argues that appellant’s actions in seeking a continuance of his trial on April 3rd amounted to an attempt to “manipulate the right to counsel to thwart the trial.” In light of what the State contends, I find it necessary to review the events that occurred prior to and on the date of April 3, 1978, when trial commenced in this cause. Therefore, I will briefly summarize the facts that relate to or might have a bearing on appellant’s contention that he did not affirmatively waive his Constitutional right to have counsel at his trial to assist him, and the State’s response that appellant’s actions amounted to nothing more than an attempt to “manipulate the trial.”

The record reflects that on March 3, 1978, the trial judge, who was specially assigned to hear this cause, advised both the special prosecutor and appellant of the pre-trial and trial dates he had selected for the case. This was done by mail. He also *432 stated in his letter that it was his understanding that an attorney who had previously represented appellant in the former cause, at which appellant was tried but in which a mistrial was declared, see supra, was no longer representing appellant. The trial judge also stated the following in his letter: “It is my understanding that Mr. Neal, [appellant], is representing himself pro se ...”

Pursuant to the letter of the trial judge, that was dated March 3rd, a hearing on the pre-trial motions was set for and occurred on March 22, 1978. The record reflects that on that date, but prior to the commencement of the hearing, appellant filed an instrument entitled “Motion To Allow Pro Se Appearance.” The record does not reflect or indicate just what caused appellant to file this motion. Nevertheless, the trial judge granted the motion. A reading of the motion does not reflect any express statement that appellant would represent himself at his trial, which was scheduled to commence on April 3rd. On the other hand, there is also no express statement that he would not represent himself, pro se, at his trial. The trial court’s order, granting the motion, also does not expressly refer to the scheduled trial. If nothing else was present in the record, I believe that the motion itself would encompass the trial. See, however, post.

The pre-trial motions in the record, which relate to the March 22nd hearing, consisted of a motion to quash the reindictment that was filed on February 3rd, and a motion for discovery, which were prepared and filed by appellant himself. The hearing that was held on March 22nd primarily concerned appellant’s pre-trial motion to quash the indictment, which was denied by the trial judge after the hearing.

I next move to the date of the trial, April 3rd. By the uncontradicted statements of appellant, which were made in reference to his motion for continuance, appellant appears to have made it clear to the trial judge, prior to the hearing that was held on March 22nd, that in the event the trial judge denied the motion to quash the indictment he had filed, he had no intention of thereafter representing himself pro se.

Appellant stated into the record that after he had received the trial judge’s letter of March 3rd, he spoke by telephone with the trial judge, and advised the judge that he was going to represent himself, pro se, only through the March 22nd pre-trial hearing, if his motion to quash the indictment was not granted. He also stated into the record that in the event the motion to quash was denied he would then employ William F. Alexander of Dallas to represent him for trial purposes. Appellant’s statements were neither questioned, refuted, contradicted, nor disputed by anyone, including the trial judge.

In both Hicks v. State, 525 S.W.2d 177 (Tex.Cr.App.1975), and Canada v. State, 660 S.W.2d 528 (Tex.Cr.App.1983), this Court held that uncontroverted factual statements of counsel, though unsworn, may be considered by this Court for purposes of the decision making process.

Appellant stated into the record that on March 25th, he contacted Alexander. He also stated that on March 27th, Alexander had a telephone conversation with the trial judge, at which time Alexander made a plea to the judge to continue appellant’s trial to a later date, because of a conflict Alexander then had in trial settings. The judge rejected the plea that Alexander had made. Appellant thereafter, pro se, prepared and filed a sworn first motion for continuance, which was denied by the trial judge on April 3rd.

I believe that on April 3rd, after appellant appeared in court without counsel, and sought a continuance to obtain counsel of his choice, the trial judge should have been particularly careful to safeguard appellant’s Constitutional right to have the assistance of counsel for trial purposes. I further believe that before rejecting appellant’s uncontradicted explanation why he did not then have counsel, and denying his motion for continuance, and putting appellant to trial without counsel, the trial judge should have at least questioned appellant if he had any doubts with respect to the truth *433 or validity of the statements appellant had made as to why he was then present without counsel. However, the trial judge did not take issue with any of the oral statements appellant made in open court, or those contained in the sworn motion for continuance.

Of course, a motion for continuance that is made by the accused in order to obtain the services of an attorney is addressed to the discretion of the trial court. However, that discretion must be exercised in such a manner that it does not infringe upon any constitutional rights of the accused, such as the right to counsel. Where the trial court in a criminal case goes clearly beyond the proper bounds of discretion in denying an application for a continuance, such as denying a motion for continuance that is made to obtain the services of counsel, without any rational basis, and thereby prevents the accused from having the assistance of counsel at his trial, such has been held to cause the resulting conviction to be void. See Zasada v. State, 19 N.J.Super. 589 , 89 A.2d 45 (Appellate Division, 1952).

Notwithstanding that an accused is entitled to counsel of his own choice, and should be afforded reasonable time and fair opportunity to secure such counsel, he must use diligence, and may not use a motion for continuance to prevent the trial from occurring or justice from being administered. Thus, the mere fact that the accused appears in court without counsel, and requests a continuance until he can obtain an attorney of his choice, is insufficient, without more, to require the motion for continuance to be automatically granted. E.g., Stanfield v. State, 212 S.W.2d 516, 520 (1948).

In this instance, however, I find that appellant established that he diligently attempted to carry into execution what he had previously informed the trial judge over the telephone what he was going to do in the event his motion to quash the indictment was denied or overruled, and that was to employ Alexander. However, he was unable to obtain Alexander’s legal services because Alexander had a previously scheduled trial commitment for April 3rd, which was the date appellant’s trial was scheduled to commence. Thus, Alexander was in no position to represent appellant. Alexander himself contacted the trial judge, to no avail. I find that appellant filed his motion for continuance at the next and most opportune time.

It has long been the law of this State that an accused should be afforded a fair opportunity and a reasonable period of time in which to employ counsel of his choice, Henderson v. State, 137 Tex.Cr.R. 18 , 127 S.W.2d 902 , 127 S.W.2d 903 (1939), and failure to afford the accused such opportunity and reasonable time in which to obtain counsel of his choice may constitute reversible error. Stroebel v. State, supra. Compare Ex parte Clear, 573 S.W.2d 224 (Tex.Cr.App.1978), and Ex parte Masching, 41 Cal.2d 530 , 261 P.2d 251 (1953).

This, however, does not mean that an accused’s right to select his own counsel can be insisted upon so as to obstruct the orderly and fair administration of justice, because such must never occur. Brown v. State, 464 S.W.2d 134 (Tex.Cr.App.1971). Thus, if a defendant does not give the trial judge timely notice that counsel of his choice will not be able to attend the trial, the trial judge may, in the exercise of his sound discretion, do what is reasonably necessary to meet the situation, provided that whatever he does is done in accordance with the law. United States v. Bentvena, 319 F.2d 916 (2nd Cir.1963).

I quickly point out that in this instance appellant did not delay until the day of trial to inform the trial judge of the scheduling conflict Alexander, his counsel of choice, had. The uncontroverted statements of appellant reflect that within a reasonable period of time after the trial judge had denied his motion to quash the indictment, appellant did what he had earlier told the trial judge he was going to do, and that was to contact and employ Alexander for trial purposes. Unfortunately, Alexander was unable to accommodate appellant because had he undertaken to represent appellant this would have created a conflict with another *434 trial setting that Alexander then had. Alexander himself telephoned the trial judge and related to the judge his scheduling problem, but to no avail. I find that appellant did not show a lack of diligence in attempting to secure counsel of his choice within a reasonable period of time after the pre-trial hearing was held on March 22nd, and before April 3rd.

I also observe that there is not anything in the record which reflects or indicates that had the trial judge.granted appellant’s sworn first motion for continuance, and continued the cause for a reasonable period of time in order for appellant to obtain the legal services of Alexander or some other attorney, such would have caused a disruption of the court’s business or affected the administration of justice. I further observe that the case was neither complicated, involved, or intricate; thus, effective counsel would not have needed a great deal of time to prepare for trial.

The State did not establish that appellant affirmatively waived his right to have the assistance of counsel at his trial. Appellant’s fifth ground of error should be sustained. The majority, however, disagrees.

The main thing that I find wrong with the majority opinion is that it has misplaced the burden of proof that must be met before it can be said that the appellant has voluntarily, intelligently, and knowingly waived his right to counsel at trial. As previously pointed out, the cases hold that this is a burden that the State, and not the defendant, has. The single argument that the majority uses in order to deny appellant relief is its conclusion that appellant was “manipulating the commencement of his trial to suit his convenience and pleasure,” when he filed his motion for continuance. In light of what is before this Court, I strongly disagree with this conclusion because it is simply not so; appellant did not try to “manipulate” the commencement of the trial by filing the motion for continuance; instead, he was trying to show the trial judge that he did not want to be tried without counsel.

Probably the greatest weakness of the majority opinion actually lies in the one single authority it cites in support of its conclusion; White v. State, 496 S.W.2d 642 (Tex.Cr.App.1973). However, if one will take the time to read White v. State, supra, he will easily see that it does not support the majority’s conclusion that appellant attempted to “manipulate” the trial through the filing of his motion for continuance. In White , the defendant did not claim that she was forced to trial without counsel, as here; instead, the defendant in White v. State, supra, claimed on appeal that she needed a continuance because her trial counsel had not had enough time to prepare for the trial. Under the facts of that case, this Court correctly held that the trial court did not err in denying the motion for continuance.

For all of the above reasons, the majority errs in not sustaining appellant’s fifth ground of error. I respectfully dissent.