McCambridge v. State

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

DUNCAN, Judge.

The appellant was convicted of driving while intoxicated. Granting his first petition for discretionary review in McCambridge v. State, 712 S.W.2d 499 (Tex.Cr. App.1986), we affirmed the judgment of the First Court of Appeals holding inter alia, that under the Sixth Amendment to the United States Constitution the “[ajppel-lant’s right to counsel did not attach until the complaint and information were filed.” Id., at 502. Consequently, under the Sixth Amendment, the appellant was not entitled to consult with an attorney prior to taking the breath test.

This Court, observing that the court of appeals failed to address the appellant’s other constitutionally predicated claims for relief, remanded the case to the court of appeals. The appellant’s contentions that the court of appeals was to review upon remand were as follows: that the appellant had a right to consult with an attorney before providing the police with a breath sample for an intoxilyzer test under the right to counsel provision of Art. I, § 10 of the Texas Constitution; that he also had a right to counsel under the due process clause of the Fourteenth Amendment to the United States Constitution, and under the due course of law provision of Art. I, § 19 of the Texas Constitution. In its opinion following the remand, the court of appeals rejected the appellant’s contentions. McCambridge v. State, 725 S.W.2d 418 (Tex.App.—Houston [1st] 1987).

Relative to the appellant’s contention that he was entitled to counsel prior to the breath test under Art. I, § 10 of the Texas Constitution and Art. 1.05, V.A.C.C.P., the court of appeals stated: “the right to counsel provision of our state constitution does not provide any greater protection in this respect than is afforded by the United States Constitution.” McCambridge v. State, supra, at 420. Thus, one’s right to counsel under Art. I, § 10 of the Texas Constitution “attaches only upon formal initiation of judicial proceedings.” Id., at 420.

■ Apparently after this Court remanded this cause to the court of appeals, the appellant, for the first time, claimed that he was denied his right to counsel in violation of Articles 15.17 and 38.22, V.A.C.C.P. The court of appeals summarily disposed of these issues by declining to review the claims because of appellant’s unexplained procedural default.

Finally, the Court overruled appellant’s grounds of error dealing with being denied due process and due course of law under the provisions of the Federal and State Constitutions, and also under Article 1.04 of the Texas Code of Criminal Procedure. Finding that the due course of law provisions of the Texas Constitution and its statutory progeny provide no greater protection than that of its federal equivalent, the Court held that denial of counsel before-deciding whether to submit to a breath test under the circumstances of this case did not reflect a violation of the basic “decencies of civilized conduct,” id., at 421-422, and therefore there was no basis to conclude that appellant was denied either due process or due course of law under the respective constitutions.

This Court granted appellant’s petition for discretionary review in order to determine the correctness of the court of appeals opinion relative to the following grounds for review:

1.Whether the court of appeals erred in determining that appellant’s breath test result was obtained in violation of the right to counsel provision of Article 1, § 10 of the Texas Constitution.

2. Whether the appellant had a right to counsel under Articles 1.05, 15.17, and 38.22 of the Texas Code of Criminal procedure.

3.And, whether the court of appeals erred in determining that the due process and due course of law provisions of the Federal and State Constitutions respectively, as well as Article 1.04 of the Texas Code of Criminal Procedure did not require the assistance of counsel before appellant made a decision as to whether he should take the breath test.

We will affirm the judgment of the court of appeals. In Forte v. State, 759 S.W.2d 128 (Tex.Cr.App.1988), this Court held “[t]he time at which an accused is faced with decision of whether to submit to a breath test is not a ‘critical stage’ of the criminal process which necessitates either the prior consultation or presence of counsel under the right to counsel provision of Article I, § 10 of the Texas Constitution.” Id., at p. 139. We therefore reject the appellant’s claim made pursuant to Article I, § 10 of the Texas Constitution.

We also find that his assertions made under Articles 1.05, 15.17 and 38.22 of the Texas Code of Criminal Procedure, are likewise without merit. Rather than invoke the waiver doctrine, we will resolve these collateral issues as a matter of judicial economy. As to Article 1.05, supra, it is obvious that it is merely the codified statutory progeny of Article I, § 10 of the Texas Constitution and we can find no authority which would indicate that the Legislature intended an expansion of rights other than those set out in the constitutional provision.

Nor can we glean from Article 38.-22, supra, a Legislative intent that would statutorily provide a right to counsel prior to the administration of the chemical sobriety test. Just recently in Bass v. State, 723 S.W.2d 687 (Tex.Cr.App.1986), this Court held “[b]ecause ‘[i]n the context of an arrest for driving while intoxicated, a police inquiry of whether the suspect will take a blood-alcohol test is not an interrogation within the meaning of [the Fifth Amendment],’ McCambridge v. State, 712 S.W.2d 499 (Tex.Cr.App.1986), quoting South Dakota v. Neville, 459 U.S. [553] at 564, n. 15, 103 S.Ct. [916] at 923, n. 15 [74 L.Ed.2d 748 (1983) ], we do not think such inquiry constitutes an ‘interrogation’ for purposes of Article 38.22, supra.”. Id., at 691. This reasoning is equally applicable to appellant’s claim asserted under Article 15.17, supra, as the warnings made mandatory in that provision are but part of the predicate set forth in Article 38.22(2)(a), supra, which is necessary for the introduction of a written statement of an accused. Further, there is nothing in the record to suggest that a magistrate prevented the appellant from contacting counsel. Therefore, the appellant’s claims grounded upon the various statutory right to counsel provisions are therefore denied.

In three grounds for review the appellant claims that the due process clause of the Fourteenth Amendment and independently Art. I, § 19 of the Texas Constitution (due course of law) and its statutory equivalent, Article 1.04, V.A.C.C.P., create a “limited right to counsel to guarantee fairness ...” to the appellant. In other words, the appellant claims that the due process clause of the Federal Constitution and its state counterpart (due course of law provision in Art. I, § 19, Tex. Const.) are either jointly or independently the basis of a right to counsel under the Sixth Amendment of the United States Constitution or Art. I, § 10 of the Texas Constitution.

Relative to the appellant’s Fourteenth Amendment due process claim, in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the United States Supreme Court did ignore the Sixth Amendment’s right to counsel provision and instead concluded that the due process clause of the Fourteenth Amendment required the states to provide counsel to a defendant exposed to the death penalty. The philosophical basis for the Court’s decision was essentially that fundamental fairness demanded the appointment of counsel because without counsel the defendant would be deprived of a fair trial.

The practical basis of the Court’s utilization of the due process clause in its decision was not nearly so esoteric: in 1932, the Supreme Court had not yet begun to selectively apply the Bill of Rights to the states. Consequently, the fundamental fairness analysis was the prevailing analysis.

Nevertheless, through Powell and several cases decided after Powell: Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), the Court made it clear that a constitutional right to counsel could be derived from both the due process clause of the Fourteenth Amendment and the Sixth Amendment. However, in 1963 that, insofar as criminal prosecutions are concerned, changed. In Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the United States Supreme Court concluded that the Sixth Amendment was applicable to the states through the Fourteenth Amendment. Thus, at least in this context, it became unnecessary to employ the due process clause and a fundamental fairness analysis to determine if a state is obligated to provide counsel to an indigent defendant.

That, however, did not automatically eliminate the principle that due process is an independent source for a right to counsel. For example, in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), the Supreme Court concluded that because of the due process clause welfare recipients could not have their benefits terminated without an evidentiary hearing. In addition, the Court, citing Powell v. Alabama, supra, decided that the welfare recipient had a right to be represented by counsel at such evidentiary hearing. At the foundation of Goldberg v. Kelly, supra, was the observation that “ ‘[t]he fundamental requisite of due process of law is the opportunity to be heard.’ ” Id., at 267, 90 S.Ct. at 1020. So, the Court’s deriving a right to counsel guarantee from the due process clause was done simply to insure that “[t]he fundamental requisite of due process of law ...,” id., a fair hearing, was achieved.

Later, in In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), the Supreme Court held that due process imposes an obligation on the states to provide appointed counsel for indigent defendant’s in all juvenile delinquency proceedings “which may result in commitment to an institution in which the juvenile’s freedom is impaired.” Id., at 41, 87 S.Ct. at 1451.

Similarly, in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the Supreme Court concluded that due process required a state to provide appointed counsel in parole or probation revocation proceedings where the facts of a particular case are such that the appointment of counsel is necessary to ensure the fairness of the hearing.

The Supreme Court has also utilized the due process clause of the Fourteenth Amendment to compel the states to provide to indigent defendants not only counsel on appeal, Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), but effective counsel on appeal. Evitts v. Lucy, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985).

The Supreme Court has not yet expressly reconciled the constitutional duality of the right to counsel guarantees as expressly provided in the Sixth Amendment and implicitly provided in the Fourteenth Amendment to guarantee a fair hearing, as initially recognized in Powell v. Alabama, supra. Despite their often combining, and therefore confusing, the two principles (see: Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)), it appears that at least since Gideon v. Wainright, supra, the due process guarantee of counsel has been restricted, to civil proceedings (Goldberg v. Kelly, supra), quasi-civil proceedings (Gagnon v. Scarpelli, supra; In Re Gault, supra), or appeals (Douglas v. California, supra). The Sixth Amendment’s guarantee of counsel on the other hand has been restricted to proceedings that are identified in the Sixth Amendment —“criminal prosecutions.” See: LaFave & Israel, Criminal Procedure § 11.1 (West Publishing Co.: St. Paul, Minn., 1984).

A driving while intoxicated prosecution is unquestionably a “criminal prosecution;” therefore, based upon thé foregoing analysis, there is no due process right to counsel guaranteed by the Fourteenth Amendment. One’s right to counsel in a DWI prosecution is guaranteed by the Sixth Amendment.

The appellant relies principally upon Sites v. State, 481 A.2d 192 (Md.1984) to support his due process claim. In Sites the Maryland Court of Appeals concluded that their implied consent statute did not statutorily grant to one a right to counsel. Furthermore, the court concluded that since the decision to take a breath test was not a critical stage of the criminal process there was no Sixth Amendment right to counsel. Conversely, however, the court concluded that the due process clause of the Fourteenth Amendment and their state constitution’s due process clause provided a DWI suspect with a limited right to counsel.

Ignoring the “critical stage” analysis, applicable to claims of right to counsel under the Sixth Amendment, the Maryland Court concluded that because of the mandatory driver’s license suspension, statutorily required of one who refuses the breath test, access to counsel is a constitutional imperative.

We reject the Maryland Court’s analysis and its conclusion for a number of reasons. First, the court concludes that the Fourteenth Amendment is an independent source for a right to counsel and cites principally Goldberg v. Kelly, supra. However, as we previously noted, Goldberg v. Kelly, supra, followed Gideon v. Wainright, supra, and the latter’s selective application of the Sixth Amendment to the states. Further, it is a civil proceeding. The other cases cited by the Maryland Court are similarly distinguishable.

Second, the court does not explain how deciding to take the breath test is not a critical stage of the criminal process and is yet a decision that offends fundamental fairness if made without the assistance of counsel. Thus, the opinion contains an internal contradiction.

Even if we were to conclude that the Fourteenth Amendment was an independent source of one’s right to counsel it would still be necessary to distinguish a time in the criminal process that the right would become effective. In Sixth Amendment cases that has been identified as the “critical stage” and is normally after a criminal complaint is filed. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), Forte v. State, supra. Consistency would therefore demand that the same critical stage analysis be applicable to a right to counsel under the Fourteenth Amendment. If we were to hold otherwise we would be engaging in the same erroneous analysis as the Maryland Court of Appeals: the determination whether to submit to a breath test demands the assistance of counsel if fundamental fairness is to be achieved, but such decision is not a critical stage of the investigative process. With due respect to the Maryland Court of Appeals, such a conclusion is illogical.

Therefore, we conclude that in the context of this proceeding the appellant did not have a right to counsel under the Fourteenth Amendment.

Relative to this “critical stage” analysis, in Forte v. State, supra, we agreed with the Oregon Supreme Court in State v. Spencer, 750 P.2d 147 (Or.1988), that the United States Supreme Court’s critical stage designation as being dependent upon the initiation of adversary criminal proceedings, as set forth in Kirby v. Illinois, 406 U.S. 682 (1972), was flawed, because it constituted a contrived departure from the standards established in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). Or, “[t]he line drawn by the [Supreme] Court in Kirby seems to be nothing but a ‘mere formalism.’ ” Miller, “Right to Counsel: State Courts on the Front Line,” Annual Survey of American Law, p. 179 (1984).

Having rejected as artificial the determination that a critical stage in the process occurs only after the filing of a complaint, we instead decided that the “critical stage” in the criminal process should be determined on a case by case basis and “must be judged on whether the pretrial confrontation presented necessitates counsels’ presence as to protect a known right or safeguard.” Forte v. State, supra, at 138.

Since making that determination, however, we have concluded that the classification of a period in the criminal process as “critical” on a case by case basis is ambiguous, vague, and thus unworkable. Consistency is the objective of any legal standard. If consistency can be achieved it benefits both law enforcement and the public. Consequently, although we do not depart from our conclusion that the reasoning in Kirby cannot be logically reconciled with the converse reasoning in Wade and Gilbert, we are nonetheless persuaded that by adopting a bright line rule establishing when the critical stage in the criminal process occurs the public will ultimately benefit.

In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Supreme Court, giving substance to what it said in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), held that an accused person in custody who has “expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, supra, at 484-485. Three years later the Supreme Court emphasized the decisive nature of their holding in Edwards, by declaring that “Edwards established a bright line rule to safeguard pre-existing rights.” Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984).

The intent of the Supreme Court in Edwards was to create a conclusive rule that would be immune from the vagaries that invariably accompany diverse factual encounters. By establishing a hard and fast rule in Edwards, the Court was striving to not only insure a suspect’s Fifth Amendment rights, but also give to law enforcement authorities a distinct and definable boundary beyond which they cannot legitimately venture.

In Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), again emphasizing the bright line nature of the Edwards holding, the Court extended Edwards to violations of one’s right to counsel under the Sixth Amendment. In doing so, the Court confirmed that a suspect’s right to counsel under the Sixth Amendment does not arise until the criminal process has progressed to a “critical stage.” Citing United States v. Gouveia, 467 U.S. 180, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984), the Court noted that a “critical stage” emerges only after the initiation of adversary proceedings. In reaching its decision, the Court again emphasized the “ ‘bright line’ quality ...,” Michigan v. Jackson, supra, at 634, of the Edwards decision.

More recently, in Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988), the Supreme Court was requested “to craft an exception to that rule for cases in which the police want to interrogate a suspect about an offense that is unrelated to the subject of their initial interrogation.” Id., 108 S.Ct. at 2096. The Court refused to create such an exception and as they did in Michigan v. Jackson, supra, stressed the “virtues of a bright line rule_” Arizona v. Roberson, supra, at 2098. The Court observed that Edward’s bright' line rule, as a relatively rigid requirement, “has the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible.” Id., at 2098.

Establishing a bright line rule relative to when a “critical stage” of the criminal process arises under Art. I, § 10 of the Texas Constitution will have similar beneficial consequences. Further, the creation of a bright line rule results in predictability. In addition, judicial review can be more precise, but, most important, it gives law enforcement authorities the parameters within which they can legally operate. At the present time law enforcement has to speculate whether a stage in the process is critical so as to compel the necessity of counsel. Speculation about one’s legal right is a burden law enforcement should not have to carry.

Therefore, we now hold in the context of this case that under Art. I, § 10 of the Texas Constitution, a critical stage in the criminal process does not occur until formal charges are brought against a suspect. The language in Forte v. State, supra, to the contrary is overruled.

Relative to the appellant’s remaining grounds for review, we also conclude that Art. I, § 19 (due course of law) and Art. 1.05, V.A.C.C.P., do not confer a right to counsel independent of that guaranteed by Art. I, § 10 of the Texas Constitution. There is absolutely no reason to engraft upon either Art. I, § 19 or Art. 1.05, V.A.C. C.P., a substantive right to counsel when that same right is expressly provided in Art. I, § 10 of the Texas Constitution.

Accordingly, the judgment of the court of appeals is affirmed.

. Article 1.05, supra, reads as follows:

In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and have a copy thereof. He shall not be compelled to give evidence against himself. He shall have the right of being heard by himself, or counsel, or both; shall be confronted with witnesses against him, and shall have compulsory process for obtaining witnesses in his favor." No person shall be held to answer for a felony unless on indictment of a grand jury.

The pertinent portion of Article 15.17, supra, states:

(a) In each case enumerated in this Code, the person making the arrest shall without unnecessary delay take the person arrested or have him taken before some magistrate of the county where the accused was arrested or, if necessary to provide more expeditiously to the person arrested the warnings described by this article, before a magistrate in a county bordering the county in which the arrest was made. The magistrate shall inform in clear language the person arrested of the accusation against him and of any affidavit filed therewith, of his right to retain counsel, of his right to remain silent, of his right to have an attorney present during any interview with peace officers or attorneys representing the state, of his right to terminate the interview at any time, of his right to request the appointment of counsel if he is indigent and cannot afford counsel, and of his right to have an examining trial. He shall also inform the person arrested that he is not required to make a statement and that any statement made by him may be used against him. The magistrate shall allow the person arrested reasonable time and opportunity to consult counsel and shall admit the person arrested to bail if allowed by law.

The applicable portion of Article 38.22(2)(a), supra, reads:

(a) the accused, prior to making the statement, either received from a magistrate the warnings provided in Article 15.17 of this code or received from the person to whom the statement is made a warning that:

(1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial;

(2) any statement he makes may be used as evidence against him in court;

(3) he has the right to have a lawyer present to advise him prior to and during any questioning;

(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and

(5) he has the right to terminate the interview at any time; and ******

. See Forte v. State, supra, n. 17, p. 138 for a more a thorough discussion of Powell v. Alabama, supra.