       Green vState =1994:: Texas Court ofCriminal AppeaU Decisions •, Texas Case Law :,..Page 1ot z»
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/         1994>Green v. State                                                                          .._


           Green v. State
fROCEHB IM &OTH TRlRL AMD NffeLLATE CaufcT AS ^^t^Case
 UNteH r\LL IWUOflUE STKtvtES Am& ftuLE ZlVrecR-ftW. tW
           872 S.W.2d 717 (1994) \M\Ttt fSTFlrtftViT \M SU\°PoK-T TftEfcEOF
    T6 TH€    HgkIoRA&UE
         Clifton          \\05TICES,
                 Edmond GREEN,        Of v.The
                               Appellant, 5B\0STATE
                                               i^iJgJXl      ADDellee
                                                    oTTexas, Appeiiee.
         l\l&\M Cow&s (td^r- A?Pe)te,v\V ^n^ iwioVioms ae> VtA^-Ved
           No. 1388-91.
        .^bova 3nd/m SuPPor^/mcorfo^es here:»v\ fo\fe +H€. aWaded
            Court of Criminal Appeals of Texas, En Banc.

         Kv^^vir^d^A- mSbtor* <rf faufer reluct,
            *718 Kenneth W. Smith, Houston, for appellant.
            John B. Holmes, Jr., Dist. Atty., and Alan Curry &Natalie Fleming, Asst Dist. W*&&
            Houston, Robert Huttash, State's Atty., Austin, for the State.                    <% \% <? V *
            Before the Court en banc.
                                                                                                  \ \ X^ <&<? *%
            OPINION ON APPELLANTS AND STATE'S PETITIONS FOR D.SCRETIOnXrY%                                         I
            REVIEW

             PER CURIAM.

             Appellant was convicted of the offense of possession of cocaine in an amount less than
             28 grams, and his punishment, enhanced by two priorfelony commons, "•"»"£
             at confinement for 50 years. In an unpublished opinion the court of appeals affirm ita
             conviction, holding, inter alia, that although appellant was entitled to counsel unde the
             sL Amendment at his so-called preliminary initial appearance ("PIA"), he essen a„y
             waived that right by not requesting appointment of counsel at that time under Arficlo
             Tosi(c) VAC CP. Green v. State, No. 01-90-00662-CR, 1991 WL 189699 (Tex.
             App Houston [1st], delivered September 26,1991). In his petition for discretionary ,ev,ew
            The ^-techeti SU**wi) UB-trCwvaS 3«a "Nub Coov-V <*.                                                    t
              Cftiw^ ttWftvs now atvsu^ *>r *»* ^
                                                „   .   • ., _„..:.__.i„/ion/i/llO«^Q1.4. Vitml
                                                                                                  WY*v temnrf5/0/ZU13
Green v. State :: 1994 .Texas Court ofCriminal Appeals Decisions , Texas Case Law :. Page 2of28
on t»©S inteteftAence das- FT.<kfi/02 March.IW» Sni Oh!i
^Hor^t^c^^^
 counsel *th <F,A o,a inS tc :.. oke it. In across-petition for discretionarypreview fine          !
    State argues that in any event the court of appeals erred to hold appellant had aSuth
    Amendment right to counsel at the PIA. We granted both petitions pursuant to
    Tex.R.App.Pro., Rule 200(c)(2). jf
QSHaSvS^rafe ilofe. Stee& because utofievd has ™ucHinfi»mmmio*Gr«n.
     Appellant was arrested without awarrant on March 2,1900, for the offense of posssssion
     of cocaine. The next day, on March 3, afelony complaint was filed. The complain
     contains anotation that indicates bail in the amount of $10,000, but the record, slent as
     to whether bail was actually set at this amount on March 3, and, if so, by^whom.1] On
     March 4,1990, appellant appeared before amagistrate for what we.are told was, h,PIA.
     At this time the magistrate warned appellant pursuant to Article 15.17(a), VAC.U
     and according to the docket sheet, afinding of probable cause was then made. 2] The
     record does not demonstrate, and appellant does not contend, that the magistrate set
      bail at this time.[3] The -719 "case" was then reset, again, according to *•<**•*••*£
      for the next day March 5,1990. On that date appellant filed apauper's oath and counsel
      wsapStedto represent him. Appellantwas indicted on March 23,1990 and on June
      29,1990, he was re-indicted. On July 2,1990, appellant was convicted under the sacond
      indictment, and the original indictment was dismissed.
      Appellant contended in the court of appeals that his right to counsel under both the Sixth
      Amendment and Article I, §10 of the Texas Constitution was violated because he was
      not represented by counsel at the PIA. The court of appeals agreed that appellant had a
      right to counsel, citing Nehman v. State, 721 S.W.2d 319 (Tex.Cr.App.1986) for the
      proposition. But Nehman does not purport to address the right to counsel under Arficle I
      §10in fact, the holding in Nehman is expressly limited to the Sixth Amendment. Se 721
      SW2d at 320. Therefore, the court of appeals did not resolve the issue as to appe lants
      right to counsel under Article I, §10. Appellant does not specifically complain of tta
       defect however, in his petition for discretionary review. We limit our consideration,
       accordingly, to the Sixth Amendment issue that was addressed in the court of appeals.
       Having held that appellant did indeed enjoy aSixth Amendment right to counsel at lis
       PIA the court of appeals reasoned that he was not denied that right because he never
       requested the appointment of counsel for purposes of representation at that heann,,,
       under the terms of Article 1.051 (c), supra. That provision mandates that "the court
       "appoint counsel to represent the defendant as soon as possible^ Whe is "ind,£ent
       and requests appointed counsel!! Now in his petition for discretionary review appellant
     —IP—fT^6- OooHl-CV/ OSfisC/SDTex. rVoUStew DVi^oVA
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Green v. State :: 1994 :: Texas Court ofCriminal Appeals Decisions :: Texas Case Law ::... Page 4of28

   (Tex Cr Arp 19^ "'re*,ri of an indictment signals" initiation of adversary judicial
   proceed* js »3T* ibi dg> vZate, 712 S.W.2d 499, at 502 (Tex.Cr.App. 1986) (in
   misdemeanor case, defendant's "Sixth Amendment right to counsel did not attach until
   the complaint and information were filed."). On the other hand, though we have made it
   clear that an arrest alone does not trigger adversarial judicial proceedings, with or v/.thout
   awarrant, Dunn v. State, 696 S.W.2d 561 (Tex.Cr.App.1985); Garcia v. State, 626
   SW2d 46 at 53 (Tex.Cr.App. 1981); see also McGee v. Estelle, 625 F.2d 1206 (C.A.5
   1980) nor does an Article 15.17 warning, Wyatt v. State, 566 S.W.2d 597, at 600
   (Tex Cr App 1978), atwo judge panel opinion has held that the filing of afelony
   complaint does. Barnhill v. State, 657 S.W.2d 131, at 132 (Tex.Cr.App.1983). Cf.
    Nehman v. State, supra, at 322 &323, n. 2(adversarial judicial proceedings had begun
    by the time of Article 15.17 warnings because by then unspecified "charges" had boen
    filed against defendant); Miffleton v. State, 777 S.W.2d 76, at 78 (Tex.Cr.App.1989.
    (adversary judicial proceedings commence in misdemeanor prosecution when "the
    complaint is filed."); Forte v. State, 707 S.W.2d 89, at 92 (Tex.Cr.App.1986) (same;. This
    latter view is at least consistent with, if not dictated by, precedent from the United States
    Supreme Court. See Moore v. Illinois, supra; Brewer v. Williams, 430 U.S. 387, at 299,
    97 S.Ct. 1232, at 1239-40, 51 LEd.2d 424, at 436 (1977); Michigan v. Jackson, 47o U.S.
    625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986).
    We need not here decide when adversary judicial proceedings commence. For even if
    the felony complaint was sufficient to mark the initiation of adversary judicial
     proceedings, we agree with the State that nothing occurred at appellant's PIA that would
     render it a"critical stage" of the prosecution against him. The court of appeals erred to
     hold he had any Sixth Amendment right to waive.

     B.

     Not every event following the inception of adversary judicial proceedings constitutes a
     "critical stage" so as to invoke the right to counsel under the Sixth Amendments ELg.,
     United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 LEd.2d 619 (1973) (post-
     indictment photographic display used to test witness identification prior to trial is no: a
     "critical stage"). In assessing whether aparticular stage of the pre-trial proceedings is a
     "critical" one, "the test utilized by the Court has called for examination of the event in
     order to determine whether the accused required aid in coping with legal problems or
     assistance in meeting his adversary." Id., U.S. at 313, S.Ct. at 2575, L.Ed.2d at 628. In
     essence, we must scrutinize any pre-trial event with aview to ascertaining whether
     presence of counsel is necessary to assure fairness and the effective assistance oi
      counsel at trial, which is, after all, "the core *721 purpose of the counsel guarantee ....

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Green v. State :: 1994 :: Texas Court ofCriminal Appeals Decisions :: Texas Case Law::... Page 6of28

   to appoint counsel *%r*^» indigent accused. See Article 1.051(c), supra, and Articles
   16.01,1*5 J6 1 6i/,VV(.C,r. Moreover, an examining trial in large measure aflords
   an accused the opportunity to discover the State's case against him. Given its adversarial
   character, and the potential it presents for the preparation of a trial defense, an
   examining trial is arguably a critical stage for purposes of Sixth Amendment analysis.
   See Coleman v. Alabama, 399 U.S. 1, at 9, 90 S.Ct. 1999, at 2003, 26 L.Ed.2d 387, at
   397 (1970); Gerstein v. Pugh, U.S. at 122-23, S.Ct. at 867-68, 43 L.Ed.2d at 70-71. In
   fact, the Supreme Court barely avoided deciding whether an examining trial is a criical
   stage in Pointer v. Texas, 380 U.S. 400, at 379-380, 85 S.Ct. 1065, at 1067,13 LEd.2d
   923, at 925-26 (1965).

   But appellant does not claim that an examining trial was conducted at his PIA. Nor does
   he claim that the magistrate should have held an examining trial at that time. He does not
   even claim that the probable cause determination the magistrate made atthe PIA would
   somehow preclude a later examining trial. In short, appellant does not now complain of
   having been deprived of any advantage a full-blown examining trial would have afforded.
   Indeed, counsel appointed for appellant the day after the PIA could easily *722 have
   requested an examining trial, but did not. Absent a claim that the PIA was, or should
   have been, an examining trial, for all we can tell the probable cause determination lhat
   was made there was nothing more than the type of non-adversarial proceeding held not
    to constitute a critical stage in Gerstein v. Pugh, supra.

    Finally, the record does not establish that bail was set at the PIA. Nevertheless, appellant
    argues that had counsel been appointed prior to the PIA, he could have contested ihe
    bail that had (apparently) been set previously. See nn. 1 &3, ante. Undoubtedly this is
    true, but it does not convert the PIA into a critical stage. Other than its Article 15.17
    aspect, the PIA, per se, is not a requirement of state law. While excessive bail violates
    Article I, § 13 of the Texas Constitution, the traditional method of attacking excessive bail
    is by application for writ ofhabeas corpus. See 1 Braden, et al, The Constitution ofthe
    State of Texas: An Annotated and Comparative Analysis, (1977), at 46. Appellant does
    not claim he was deprived ofcounsel to represent him in any habeas corpus action to
    contest his bail. Indeed, counsel was appointed for him the day after the PIA; yet the
    record does not reflect appellant ever sought a reduction ofbail by this usual procedure.
    In any event, appellant does not demonstrate that a failure to reduce his bail somehow
    impacted the fairness of, or counsel's ability effectively to represent him at, his trial. See
    United States v. Ash, supra; United States v. Wade, supra. Under the circumstances, the
    possibility that a lawyer might have contested bail at the PIA does not elevate that
    proceeding to the level of a critical stage.



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Green v. State :: 1994 :: Texas Court ofCriminal Appeals Decisions :: Texas Case Law ::... Page 7 of28


   We hold that no+hFC th* re"ord shows to have occurred at appellant's PIA amountod to a
   critical s+a je !ro jk<n. hi .S ctr ,\ nendment right to counsel. Thus, though the cour: of
   appeals erroneously held appellant waived any right to counsel under the Sixth
   Amendment, it also erred to hold he had such a right to begin with. Accordingly, we affirm
   its judgment.

   MILLER, J., concurs in the result.

   MALONEY, J., dissents with note: Because Ibelieve that the PIA hearing is a critic;al
   stage of the proceeding entitling the appellant to counsel under the Sixth and Fourtsenth
   Amendments, compare Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424
   (1977) and TEX.CODE CRIM.PROC. ANN. art. 15.17,1 respectfully dissent.

   CLINTON, Judge, concurring.

   Like Judge Meyers, Ijoin the opinion of the Court. Iadd these remarks in response to his
   concurring opinion, in which he advocates we hold appellant had no right to counse Iat
   his "preliminary initial appearance" because by that time adversarial judicial proceedings
    had not begun.

   The Sixth Amendment to the Constitution of the United States and Article I, § 10, of the
    Constitution ofthe State ofTexas, guarantee that "[i]n all criminal prosecutions" the
    accused shall have "the Assistance of Counsel for his defence," and "the right of boing
    heard by himself or counsel, or both[,]" respectively.[1]

    *723 On the question of when the right to counsel must be honored in the course o*' a
    "criminal prosecution," the prevailing federal view is derived from the principle laid down
    in Powell v. Alabama, 287 U.S. 45, at 69, 53 S.Ct. 55, at 64, 77 L.Ed. 158, at 170 (1932),
    that one accused of crime "requires the guiding hand of counsel at every step in tho
    proceedings against him."[2] Thus the right "attaches" when accusatory proceedings are
    initiated against himindiscriminately described as "adversary judicial proceedings" stnd
    "judicial criminal proceedings," Kirby v. Illinois, 406 U.S. 682, at 688, 92 S.Ct. 1877 at
    1882, 1883, 32 LEd.2d 411, at 417 (1972) (but right to counsel under Wade and Gilbert
    inapplicable to preindictment or pre-charge show-up); "judicial proceedings" and
    "adversary proceedings," Brewer v. Williams, 430 U.S. 387, at 399, 401, 97 S.Ct. 1232,
    at 1239,1240, 51 L.Ed.2d 424, at 436, 438 (1977) (initiated in one place by arrest on
    warrant, booking and "arraignment" thereon before a judge who advised him of Mimnda
    rights and committed to jail to await transfer to another place);[3] "adversary judicial
    criminal proceedings," Moore v. Illinois, 434 U.S. 220, at 228, 98 S.Ct. 458, at 464-465,
    54 L.Ed.2d 424, at 433 (1977) (rejecting view that corporeal identification conducted

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Green v. State :: 1994 :: Texas Court of Criminal Appeals Decisions :: Texas Case Law ::... Page 8 of 28


   without ccinsel ex^'id^'e only if made after indictment, because "prosecution"
   commenc d vtf ifun j c cc r\>;». it followed by "preliminary hearing [to] determine ...
   probable cause to bind [accused] over to grand jury and to set bail").[4]

   *724 As the Supreme Court recognized in Kirby v. Illinois, supra:

   "... But the point is that, while members ofthe Court have differed as to the existence of
   the right to counsel in the contexts ofsome ofthe above cases, all ofthose cases rave
   involved points oftime at or after the initiation ofadversary judicial criminal
   proceedingswhether by way offormal charge, preliminary hearing, indictment,
   information, or arraignment."
   Id., 406 U.S. at 689, 92 S.Ct., at 1882, 32 LEd.2d, at 417 (first emphasis in original).
   Later in Brewer v. Williams, supra, the Supreme Court added: or arrest on warrant ;and
   arraignment thereon.[5]Accord: Michigan v. Jackson, 475 U.S. 625, at 629,106 S.Ct.
   1404, at 1407, 89 L.Ed.2d 631, at 638 (1985) (magisterial arraignment signals initiation of
   adversary judicial proceedings and thus attachment of Sixth Amendment right to
   counsel).[6]

   Thus, all things considered, resolution of the issue in the instantcause does not turn on
   whether "the State has filed the kind of accusatory pleading upon which a conviction
   might lawfully be based[,]" as Judge Meyers would have it. See page 721. Although it is
   *725 clear enough that the Supreme Court regards as a "formal charge" a sworn
   complaint under its rules and would under ourown rules, see note 1, ante, that term is
   not a talisman for invoking constitutional rights.

   For Sixth Amendment purposes the Supreme Court has made clear that an arrest with a
   warrant (Brewer v. Williams) or without a warrant (Michigan v. Jackson) followed by an
   arraignment thereon initiates "adversary judicial criminal proceedings." But that question
   is "distinct from the question whether the arraignment itself is a critical stage requiring the
   presence of counsel, absent a valid waiver." Michigan v. Jackson, supra, 475 U.S. at
   629, n. 3, 106 S.Ct., at 1407, n. 3, 89 L.Ed.2d, at 638, n. 3.[7] After a magisterial
   arraignment "government efforts to elicit information from the accused, including
   interrogation, represent 'critical stages' at which the Sixth Amendment applies, [citations
   omitted]." Id., 475 U.S. at 630,106 S.Ct., at 1408, 89 L.Ed.2d, at 638.

   Because I agree the PIA did not constitute a critical stage in the circumstances presented
   here, Ijoin the per curiam majority opinion in this cause. Unlike Judge Meyers, however,
   I believe the majority does well to eschew any holding that the Sixth Amendment rkjht to




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Green v. State :: 1994 :: Texas Court of Criminal Appeals Decisions :•: Texas Case Law ::... Page 9of 28

   counsel d^er not in*er~ *♦. ° PI'V because judicial adversarial proceedings have not yet
   begun as rf i? timt.

   BAIRD, Judge, concurring.

   Ibelieve the Court is correct in adopting the "critical stage" analysis for determining when
   an accused is entitled to counsel under the Sixth Amendment. However, Iwould fuither
   hold that the Preliminary Initial Appearance (PIA) hearing under Tex.Code
   Crim.Proc.Ann. art. 15.17 constitutes a "critical stage" at which the Sixth Amendment
   right to counsel has attached.

   I.

   The Supreme Court has held that the right to counsel under the Sixth Amendment
   attaches at or after the initiation of adversary judicial proceedings against the defendant.
   United States v. Gouveia, 467 U.S. 180,187, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 14(5
    (1984); Estelle v. Smith, 451 U.S. 454, 469-470, 101 S.Ct. 1866, 1876, 68 LEd.2d 359
    (1981); Kirby v. Illinois, 406 U.S. 682, 688-689, 92 S.Ct. 1877, 1882, 32 L.Ed,2d 411
    (1972). And the Court has acknowledged that certain pre-trial "critical stages" may
    constitute such adversary judicial proceedings sufficient to trigger a defendant's right to
    counsel. See, Gouveia, 467 U.S. at 189,104 S.Ct. at 2298 (citing United States v. Wade,
    388 U.S. 218, 87 S.Ct. 1926,18 L.Ed.2d 1149 (1967)). See also, Coleman v. Alabama,
    399 U.S. 1, 7, 90 S.Ct. 1999, 2003, 26 L.Ed.2d 387 (1970). Whether a pre-trial
    proceeding constitutes an adversary judicial proceeding essentially depends upon
    "[whether] the accused [is] confronted with both the intricacies of the law and the
    advocacy of the public prosecutor." Gouveia, 467 U.S. at 188-189,104 S.Ct. at 22^8
    (quoting United States v. Ash, 413 U.S. 300, 309, 93 S.Ct. 2568, 2573, 37 LEd.2d 619
    (1973)). However, the Supreme Court has declined to establish a "bright-line" rule lor
    when adversary judicial proceedings begin and has instead left this decision to stats
    courts. See, Gouveia, 467 U.S. at 187-189, 104 S.Ct. at 2297-2298. See also, Moore v.
    Illinois, 434 U.S. 220, 228, 98 S.Ct. 458, 464, 54 L.Ed.2d 424 (1977), Fuller v. Stato, 829
    S.W.2d 191, 205 (Tex.Cr.App.1992); and, State v. Barnhill, 657 S.W.2d 131,132
    (Tex.Cr.App.1983). Consequently, it is incumbent upon this Court to determine whsit
    point in the proceedings constitutes a "critical stage."


    Tex.Code Crim.Proc.Ann. art. 15.17 clearly provides for the right to counsel at a
    defendant's PIA hearing. Art. 15.17(a) reads, in pertinent part:




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Green v. State :: 1994 :: Texas Court ofCriminal Appeals Decisions :: Texas Case Law... Page 10 of28

   *726 In each ca^e ^nu-^'-a+ed :n this Code, the person making the arrest shall without
   unnecefs- ry dp ay \> ke he pf .-. narrested or have him taken before some magistrate
   of the county where the accused was arrested ... 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 thatany statement made by him may be used against him. The
   magistrate shall allow the person arrested reasonable time and opportunity to consjlt
   counsel[1] and shall admit the person arrested to bail if allowed by law.[2]
   Art. 15.17 implicates both the Fifth and Sixth Amendments by requiring a magistrate to
   inform a defendant of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1302,
   16 L,Ed.2d 694 (1966), and allowing the defendant the opportunity to consult with
   counsel. Because a defendant's Miranda rights stem from the Fifth Amendment's
   prohibition against self-incrimination during custodial interrogation, see, Gouveia, 437
   U.S. 188 n. 5,104 S.Ct. 2297 n. 5; and Kirby, 406 U.S. at 688, 92 S.Ct. at 1881, it lollows
   that a defendant's right "to consult counsel" arises independently from the Fifth
   Amendment. Thus, as the Court of Appeals observed:

    ... The PIA hearing is merely a procedural bridge that spans the gulf between the right of
    a defendant to assistance of counsel and the actual appointment of counsel to repfssent
    the defendant. Though the hearing takes place after a defendant's right to counsel las
    attached, the hearing serves the purpose ofgiving practical effect to an abstract
    protection....
    Oliver v. State, 813 S.W.2d 762, 764-765 (Tex.App.Houston [1st Dist.] 1991), rev'd on
    othergrounds, 872 S.W.2d 713 (Tex.Cr. App. delivered this day).

    As the majority recognizes, our decisions on when adversary judicial proceedings begin
    have been inconsistent. Majority opinion, pp. 719-720. However, we acknowledged in
    Fuller v. State, 829 S.W.2d 191 (Tex.Cr.App. 1992), that the PIA hearing may constitute
    just such a "critical stage" atwhich point a defendant's right to counsel has attached. In
    Fuller, we recited when an adversary judicial proceeding begins:

    ... In Texas, a criminal prosecution is variously considered to be in progress after the
    accused has been formally arrested and taken before a magistrate, or when he has been
    indicted or charged by complaint and information with a criminal offense.


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Green v. State :: 1994 :: Texas Court of Criminal Appeals Decisions :: Texas Case Law... Page 11 of28

   Id. 829 SW2d 3t or^5 ropsecv lently, we are not without a basis to conclude a PI/,
   hearing 's a;'if chr, ly' ait :a ~. ige" to constitute an adversary judicial proceedinc), at
   which point the defendant is entitled to the assistance of counsel. See also, Lucas v.
   State, 791 S.W.2d 35, 45 (Tex.Cr.App.1989); Janecka v. State, 739 S.W.2d 813, 827
   (Tex. Cr.App.1987); Nehman v. State, 721 S.W.2d 319 (Tex.Cr.App.1986); and, Barnhill
   v. State, 657 S.W.2d 131,132 (Tex.Cr.App.1983) (panel op.). This is especially true
   where, as in the instant case, the PIA hearing is held after aformal complaint is file ±[3]
   See, United States v. Wade, 388 U.S. at 226, 87 S.Ct. at 1932 ("critical stage" normally
   occurs after a criminal complaint is filed); and, Barnhill, 657 S.W.2d at 132.


   The Court of Appeals relied upon Nehman v. State, 721 S.W.2d 319 (Tex.Cr.App.1986),
   to hold appellant was entitled to counsel at the PIA hearing. Ibelieve that holding was
    correct. In Nehman, the defendant was arrested *727 in Iowa as a suspect in a homicide
    in Amarillo, Texas. An arrest warrant was issued in Amarillo and two police officers
    travelled to Iowa to escort Nehman to Texas. Upon taking him into custody, the officers
    informed Nehman of his Miranda rights. Id. at 320. After returning to Amarillo, Nehnan
    indicated that he wished to give awritten statement concerning the homicide. Id., a: 320-
    321. As the statement was being prepared, Nehman was taken for his PIA hearing,
    pursuant to art. 15.17, where the magistrate informed Nehman of his Miranda rights and
    of his right to have an attorney appointed to represent him. At the PIA hearing, Nehman
    requested that counsel be appointed. Id., at 321. After the hearing, but prior to receiving
    counsel, Nehman was returned to the police department where he signed his statement.
    Id.

    On appeal, Nehman claimed the statement was obtained in violation of the Fifth and
    Sixth Amendments. We declined to address the Fifth Amendment claim and focused
    instead on Nehman's Sixth Amendment claim, holding: "There is no question that
    adversarial proceedings had been initiated, and thus, that appellant's Sixth Amendment
     right to counsel had attached." Id., at 322. We held Nehman's statement was obtained in
     violation of the Sixth Amendment. Id., at 323. Therefore, Nehman clearly stands for the
     proposition that a PIA hearing is a"critical stage" at which point adefendant's right to
     counsel under the Sixth Amendment has attached.

     In holding that the Court of Appeals erred in concluding appellant's PIA hearing was a
     "critical stage," the majority entirely disregards Nehman. As stated above, Ibelieve the
     Court of Appeals correctly relied on Nehman, In the instant case, as in Nehman,
     appellant's PIA hearing was conducted after the complaint was filed but before


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   indictment See N^rr^ 721 c.W.2d at 323 n. 2. Insofar as the majority fails to
   distinguis. o o* enu 3Is *hi ia .,. believe that Nehman is controlling. Moreover, at least
   three courts ofappeals have relied upon Nehman to hold that a defendant's PIA hearing
   constitutes a "critical stage" ofthe proceedings against the defendant. See, State v
   Hernandez, 842 S.W.2d 306, 311 (Tex.App.San Antonio 1992, pet. refd); Alford v. State,
   788 S.W.2d 436, 439 (Tex.App.Houston [1st Dist.] 1990); and, Higginbotham v. State,
   769 S.W.2d 265, 268 (Tex.App.Houston [14th Dist,] 1989), rev'd on other grounds, 807
   S.W.2d 732 (Tex.Cr.App.1991). Therefore, Iwould hold that a PIA hearing under ait.
   15.17 represents a "critical stage" at which point a defendant's right to the assistance of
   counsel has attached.


   IV.

   In Oliver v. State, 872 S.W.2d 713 (Tex.Cr. App. delivered this day), we held that a
   defendant does notwaive his right to counsel at a pre-indictment hearing merely by
   failing to affirmatively request counsel. Id., 872 S.W.2d at 715 (citing Swenson v. Bosler,
   386 U.S. 258, 260, 87 S.Ct. 996, 998, 18 L.Ed.2d 33 (1967); and Ex parte Rains, 555
   S.W.2d 478, 482 (Tex.Cr.App.1977)). See also, Barker v. Wingo, 407 U.S. 514, 52i5, 92
   S.Ct. 2182, 2189, 33 L.Ed.2d 101 (1972) (no presumption ofwaiver of constitutionc Iright
   from inaction). Instead, for there to be a valid waiver ofcounsel, the record must show a
   defendant affirmatively declined counsel. See, Oliver, 872 S.W.2d at 715. See also,
   Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 LEd.2d 70 (1962). It follows
   then, in the instant case, that appellant did not waive his right to counsel simply by failing
    to request counsel at the PIA hearing.

    Since appellant was entitled to counsel at the PIA hearing it is necessary to determine
    whether he was harmed by the failure to provide counsel. Violations of the Sixth
    Amendment are subject to a "harmless error" analysis. Satterwhite v. Texas, 486 U.S.
    249, 257, 108 S.Ct. 1792,1798, 100 L.Ed.2d 284 (1988); and, Sterling v. State, 830
    S.W.2d 114,121 (Tex.Cr.App.1992). In conducting such an analysis, we look to see
    whether the failure to provide appellant with counsel at his PIA hearing contributed to
    either his conviction or punishment. Tex. R.App.P. Rule 81(b)(2).[4]Compare, Hernandez
    *728 v. State, 808 S.W.2d 536, 539 (Tex.App. Waco 1991); and, Whittington v. Sta:e,
    781 S.W.2d 338, 341 (Tex.App.Houston [14th Dist.] 1989, pet. refd). The record
    indicates that the magistrate made a probable cause determination at the PIA hearing.
    While it is possible that counsel could have persuaded the magistrate that probable
    cause was lacking, the grand jury's subsequent indictment of appellant would have
    preempted the magistrate's findings. See, Whittington, 781 S.W.2d at 341. Moreover, the
    record indicates appellant received counsel the day after the PIA hearing.[5] We find that


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   appellant'? fpilure t« re—»'e counsel at his PIA hearing did not contribute to either
   appellant"' c -n* ,ct»o. or pu is ....int. The error, therefore, was harmless.[6]
   With these comments, Ijoin only the judgment of the Court.

   MEYERS, Judge, concurring.

   Ijoin the Court's opinion because Isubscribe fully to its "critical stage" analysis and
   because Iam willing to concede that the criticalness for Sixth Amendment purposes of a
   so-called "preliminary initial appearance" (PIA) is here contested by the State's petition
   for discretionary review. But it is not my impression, nor do the papers in this case fairly
   support a conclusion, that review was actually granted to decide whether the PIA was a
   "critical stage" ofthe proceedings against Appellant.

   The Court of Appeals, relying only on Nehman v. State, 721 S.W.2d 319, 322 (Tex.Crim.
   App.1986), held simply that "Appellant was entitled to assistance of counsel at the PIA."
   Green v. State, No. 01-90-00662-CR, 1991 WL 189699 (Tex.App.Houston [1st] Sept. 26,
    1991) (unpublished), Slip Op. at 5. Nehman, in turn, stands only for the proposition that
    "[fjhere is no question that adversarial proceedings ha[ve] been initiated" for Sixth
    Amendment purposes by the time of an "Art. 15.17 warning hearing." 721 S.W.2d at 322
    (internal quotation marks omitted). Thus, the opinion which we here review does net
    expressly or implicitly include a decision on the question of criticalness.
    Moreover, the State mainly argues in its petition that the Court of Appeals position, and
    therefore also the holding in Nehman, is untenable because adversary judicial
    proceedings are not really initiated in felony cases until the Grand Jury returns an
    indictment. State's PDR at 5-7 (emphasis omitted). Although the State does "noteD that...
    [a] probable cause determination is not a critical stage" under Supreme Court precedent,
    this is not really the crux of its argument. State's PDR at 5 (internal quotation marks,
    omitted). It therefore seems clear to me that the question actually presented for review in
    this case is whether, under Texas law, the Houston PIA occurred after the inception of a
    formal criminal prosecution against Appellant. We need not decide whether the P\A was
    a so-called "critical stage" of the prosecution unless we first conclude that a prosecjtion
    had in fact begun. McCambridge v. State, 712 S.W.2d 499, 502 n. 11
    (Tex.Crim.App.1986); Forte v. State, 707 S.W.2d 89, 92 (Tex.Crim.App.1986). Iwrite
    separately to elaborate my own views on this question.

    The Sixth Amendment to the United States Constitution broadly assures that, "[i]n till
    criminal prosecutions, the accused shall enjoy the right... to have the Assistance o:
    Counsel for his defence." This right is applicable in state criminal prosecutions through

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   the Due P'orss- C'-uf- ~f +he fourteenth Amendment, Gideon v. Wainwright, *729 372
   U.S. 335. J3 S<;t. c. 2, iLie'.2, 799 (1963), but is effective "only at or after the
   initiation of adversary judicial proceedings against the defendant." United States v.
   Gouveia, 467 U.S. 180,187,104 S.Ct. 2292, 2296, 81 L.Ed.2d 146 (1984). Whethor
   adversary judicial proceedings have been instituted is, of course, amatter of state law.
   Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977).
   Unfortunately, our precedents do not clearly or unambiguously mark the inception of
   criminal proceedings in this State. We have usually insisted that the Sixth Amendment
   right to counsel be effectuated only after the filing of an indictment or of aformal
   complaint and information. DeBlanc v. State, 799 S.W.2d 701, 706 (Tex.Crim.App.
   1990); Spence v. State, 795 S.W.2d 743, 752 (Tex.Crim.App.1990); Miffleton v. State,
    777 S.W.2d 76, 78 (Tex.Crim.App.1989); McCambridge, 712 S.W.2d at 502; Forte, 707
    S.W.2d at 91-92. But we have not consistently held that formal criminal prosecutior must
    necessarily begin in this way. Indeed, we have even held that execution of an arrest
    warrant may be asufficiently formal accusation under Texas law to trigger the application
    of Sixth Amendment protections. Thus, in Nehman, upon which the Court of Appeals
    expressly relied in this case, the accused was arrested in Iowa on amurder warrant
    issued from Potter County, Texas, and then returned to Amarillo for prosecution.
    Investigating officers obtained awritten confession from him, which was completed after
    he had been taken before a magistrate, warned in the manner required by article 115.17
    of the Code of Criminal Procedure, and furnished with appointed counsel. Without
    citation of authority or further discussion of the issue, we concluded that, "since charges
    were filed against appellant... by the time of [his] Art. 15.17 warning hearing[,]" Id. .at 323
    n. 2(internal quotation marks omitted), "adversarial proceedings had been initiated
    and... appellant's Sixth Amendment right to counsel had attaehed."[1]ld. at 322.
    Accordingly, it is fair to say that Nehman does stand for the proposition that arrest
    warrants constitute formal criminal charges for purposes of implementing the Sixth
    Amendment right to counsel in Texas. See also Lucas v. State, 791 S.W.2d 35, 45
     (Tex.Crim. App.1989); Janecka v. State, 739 S.W.2d 813, 826 (Tex.Crim.App.1987);
     Barnhill v. State, 657 S.W.2d 131,132 (Tex.Crim.App.1983) (panel opinion).
     But our position in this matter is not well supported by federal Sixth Amendment
     jurisprudence, nor does it comport with the realities of criminal prosecution under Tsxas
     law. Although Nehman's language is reminiscent of that used by the United States
     Supreme Court in Brewer v. Williams,[2] acase similar on its facts, the significant event
     in Brewer was not the warrant of arrest but the circumstance of a judicial arraignment on
     the warrant. To regard Brewer as authority for the proposition that Nehman was facing


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Green v. State :: 1994 :: Texas Court ofCriminal Appeals Decisions :: Texas Case Law... Page 15 of28

   formal crininl rh?-e- -o.'ld, therefore, require interpreting the procedure contemplated
   by article 5. '7 as &ita no n* •„ *n arraignment. See Spence, 795 S.W.2d at 752-53
   ("statutory warnings are not 'formal charges'"). Clearly this was not our holding in
   Nehman, which declared that formal criminal charges were already pending "by the *730
   time of [Nehman's] Art. 15.17 warning hearing."
   In Texas, as elsewhere, the purpose of an arraignment is to identify the accused and
   hear his plea to the State's charging instrument. Tex.Code Crim.Proc.Ann. art. 26.C2;
   Hamilton v. Alabama, 368 U.S. 52, 54 n. 4, 82 S.Ct. 157,158 n. 4, 7L.Ed.2d 114 (' 961);
   21 Am.Jur.2d Criminal Law §§ 433-442; 22 C.J.S. Criminal Law §§ 356-364. It is often
   the first adversarial confrontation between an accused and government prosecuting
    attorneys after the filing of formal criminal charges. Texas procedure requires there to be
    an arraignment "[i]n all felony cases, after indictment, and all misdemeanor cases
    punishable by imprisonment," Code Crim.Proc. art. 26.01, and provides that "[n]o
    arraignment shall take place until the expiration of at least two entire days after the day
    on which acopy of the indictment was served on the defendant, unless the right to such
    copy or to such delay be waived, or unless the defendant is on bail." Code Crim.Proc. art.
    26.03. Nothing could be clearer than that an arraignment in all cases of felony canrot
    occur prior to the return of an indictment, both because the law expressly forbids it and
    because there is no formal charge upon which to plead under Texas law until an
    indictment or other satisfactory charging instrument has been returned.
    In contrast, the procedure according to which the state of Texas provides for taking
    persons under arrest before an impartial magistrate at the earliest opportunity is plainly
    designed, not as away of joining issue on criminal pleadings, but as ameans of
    protecting essential rights of the suspect during the period following his arrest until :he
    justice system decides whether to initiate aformal prosecution against him.[3] Codo
     Crim. Proc. art. 15.17. The fact that a determination of probable cause is often made as a
     part of this procedure does not turn it into acriminal prosecution, any more than a
     determination of probable cause made by ajustice of the peace issuing an arrest warrant
     in his living room or agrand jury investigation conducted in secret is a criminal
     prosecution. See Gerstein v. Pugh, 420 U.S. 103, 120, 95 S.Ct. 854, 866, 43 LEd.2d 54
     (1975) ("[Adversary safeguards are not essential for the probable cause determination
     required by the Fourth Amendment").
     Our system contemplates avariety of instances in which public officials are obliged to
     decide whether there is reason to believe that some person has offended the penal laws
     of this state.[4] Sometimes people are detained *731 or made to give appearance bonds
     as a result of such decisions. But these people are not subjected to criminal prosecution

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      Green v. State:: 1994 :•: Texas Court of Criminal Appeals Decisions :: Texas Case Law... Page 16 of 28

         under the 'avs of T«xp* •"."I ar indictment, information, or other charging instrument is
         filed. Wi*h ;h e .c«d on of rir .i.'.il prosecutions in justice and municipal courts, a
         warrant of arrest based on a complaint showing probable cause to believe that a slspect
         committed the offense alleged, although sufficient to authorize his detention, is not the
         kind of instrument upon which a conviction may be obtained.[5]
         Criminal prosecution begins in Texas when the State officially announces that it will seek
         to convict asuspect of violating the state's criminal laws. It does not begin when the
         State merely detains or requires security for the appearance of asuspect pending
         completion of its investigation and decision whether to prosecute. See Dunn v. State, 696
         S.W.2d 561, 565 (Tex.Crim.App.1985) (plurality opinion) ("The mere arrest and
         subsequent questioning of aperson do not constitute asufficient formalization of
         proceedings to trigger the requirement of counsel under the Sixth Amendment.")[6]
         Accordingly, Iwould hold that formal prosecution is not initiated in Texas for purposes of
          the Sixth Amendment right to counsel until the State has filed the kind of accusatory
          pleading upon which aconviction might lawfully be based.[7] In felonies, that plead ng is
          an indictment, unless it has been waived. For misdemeanors punishable by
          imprisonment, it is acomplaint and information. In justice and municipal courts, it may be
          aformal complaint alone. In my judgment, it is meaningless under Texas law to regard as
          formally adversarial any events which transpire before the filing of such an accusatory
          pleading. To the extent that they hold otherwise, Iwould overrule Nehman, Lucas,
          Janecka, and Barnhill.

          Irealize that many incidents in the investigative and administrative process prior to the
          inception of adversarial proceedings affect criminal suspects in important ways and that
          the assistance of counsel on such occasions might be genuinely helpful to them. But "our
           cases have never suggested that the purpose of the right to counsel is to provide a
           defendant with a preindictment private investigator[.]" Gouveia, 467 U.S. at 191,104
           S.Ct. at 2299. See also Moran v. Burbine, 475 U.S. 412, 431, 106 S.Ct. 1135, 114t, 89
           L.Ed.2d 410 (1986). Persons merely suspected of crimes simply are not covered by *732
           the Sixth Amendment. Rather, the right to counsel there assured applies only after the
           State has formally "committed itself to prosecute." Kirby, 406 U.S. at 689, 92 S.Ct. ;at
           1882.

           This does not mean, of course, that the Sixth Amendment is altogether inapplicable at
           every nonjudicial or nonadversarial encounter between the accused and agents of :he
           government. Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 60, 77 L.Ed. 158 (1S32).
           Clearly, the right to counsel may be effective in circumstances which are neither judicial
           nor formally adversarial, such as lineups, police interrogations, and psychiatric

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   examinations. See Dov-" v Te-as, 492 U.S. 680, 109 S.Ct. 3146,106 LEd.2d 551
   (1989); M: in »v Mo. Ito ,4'4 JA 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985); Estelle v.
   Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981); United States v. Wade, 388
   U.S. 218, 87 S.Ct. 1926,18 L.Ed.2d 1149 (1967). But the Sixth Amendment right to
   counsel applies in such instances, and at all other critical stages of the criminal
   prosecution, whether adversarial or investigative, only when the encounter occurs after
   adversarial proceedings are formally begun in a court of law.[8]
   With these additional remarks, Ijoin the opinion of the Court.

   NOTES
   [1] We might speculate that this notation on the felony complaint represents no moie
   than a recommendation from an assistant district attorney at in-take, "based on a pihted
   form bail schedule utilized in criminal cases." Alberti v. Sheriff of Harris County, Texas,
    406 F.Supp. 649, at 662 (S.D.Tex.1975). The record before us in this cause, however,
    does not affirmatively establish this.

    [2] Because appellant was arrested without awarrant, his further detention without a
    finding of probable cause would violate the Fourth Amendment, under Gerstein v. Pugh,
    420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), as well as County of Riverside v.
    McLaughlin, 500 U.S. 44,111 S.Ct. 1661,114 L.Ed.2d 49 (1991). In any event, evon a
    complaint in support of an arrest warrant, Article 15.04, V.A.C.C.P., will not justify
    continued detention absent a second determination of probable cause, as a matter of
    state law. See Ex parte Garcia, 547 S.W.2d 271 (Tex.Cr.App.1977). Why any probable
    cause determination was made at a PIA rather than at an examining trial, Article 16.01,
    V.A.C.C.P., is a question not raised by either party in the present cause. See text, post.
    [3] Appellant equates the PIA with aso-called "Forty Eight Hour Hearing." See Ex parte
    Clear, 573 S.W.2d 224 (Tex.Cr.App.1978); Alberti v. Sheriff of Harris County, Texas, 406
    F.Supp. 649 (S.D.Tex.1975). The "principal stated purpose" of such a hearing, we said in
     Clear, is "to review and set bonds and appoint attorneys in felony case complaints." 573
     S.W.2d at 226. See also Sanders v. City of Houston, 543 F.Supp. 694 (S.D.Tex.1932),
     affd 741 F.2d 1379 (C.A.5 1984) (Fourth Amendment requires after warrantless arrest
     that accused be presented before a magistrate no later than 24 hours after initial
     detention for probable cause determination and setting of bail). It is odd, then, that he
     record does not affirmatively reflect that bail was setatthe PIA, either on March 4 or on
     the reset on March 5.




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Green v. State :: 1994 :; Texas Court ofCriminal Appeals Decisions :: Texas Case Law... Page 18 of28
   In his brie* in the c-* « ^poea's appellant relied heavily upon Alberti v. Sheriff of Harris
   County, s- p, , 'xn, ipi >P< si'... he was entitled to counsel at the PIA. Alberti was acivil
   case,


   however, testing the constitutionality of jail conditions in Harris County. The federal
   district court, inter alia, ordered the "Forty Eight Hour Hearing," to be conducted in ihe
   presence of counsel, as ameans of assuring quick release of those jail inmates eligible
   for personal bond, to help reduce overcrowding. However, Alberti did not purport to
   require counsel under the Sixth Amendment, and to that extent it is inapposite to the
   present inquiry. Sanders is aFourth Amendment case, and does not speak to the
    question of right to counsel.
    [4] For purposes of Article I, §10 of the Texas Constitution, this Court held in Forte v.
    State 759 SW2d 128 (Tex.Cr.App.1988), that the right to counsel would inhere at any
    "critical stage," irrespective of whether adversary judicial proceedings had begun. Later
    the Court retreated somewhat from this position, declaring in McCambridge v. State*, 778
    SW2d 70 at 76 (Tex. Cr.App.1989), again for purposes of Article I, §10 only, that no
    "critical stage" can occur "until formal charges are brought against asuspect." We do not
    today decide the question of right to counsel at aPIA under Article I, §10. See p. 719
     ante In the Sixth Amendment context it is clear enough that even after the .n.t.at.or of
     adversary judicial proceedings the right to counsel attaches only at a"crrt.cal stage"
     Forte v. State, 707 S.W.2d at 92.

     [5] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
     [1] In Texas the traditional conceptual scope of a"criminal prosecution," once
     memorialized in statutes, is "the whole or any part of the procedure which the law
     provides for bringing offenders to justice;" the terms "criminal action" and "cr.m.nal
     accusation" are used in the same sense. See State v. Eaves, 800 S.W.2d 220, at 223, n.
     11 (Tex Cr App 1990), and authorities cited therein. That issuing awarrant for arrest
     based upon acomplaint pursuant to Articles 15.01,15.03,15.04 and 15.05, V.A.C.C.P.,
     and thereafter carrying out duties imposed by Article 15.17, V.A.C.C.P., includ.ng
      informing accused of right to counsel and to an examining trial, are part of such
      procedure for "bringing offenders to justice" is self-evident. See Nehman v. State, 721
      S.W.2d 319, 322 (Tex.Cr.App.1986).

      While lacking asimilar definition, the Federal Rules of Criminal Procedure to "govern the
      procedure in ail criminal proceedings [in federal courts]," id., Rule 1, are intended to
      "provide for the just determination of every criminal proceeding," id., Rule 2. The first

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   procedure prescribe f™ "bring'ng offenders to justice" is to swear out acomplaint upon
   which an *mst /van .nt >r i jr.... >ns may issue "if there is probable cause to believe that
   an offense has been committed and that defendant has committed it[,]" id., Rules 3and
   4, followed by arrest of the accused. The second is an initial appearance before the
   magistrate during which the duties vary according to classification of the offense, but in
   any event implicate the right to counsel; the third procedure is apreliminary examination,
   unless waived. Rule 5(b) and (c); Rule 5.1 and Rule 58.
   Thereafter, in each jurisdiction during the conduct of "criminal prosecutions" there sre, of
   course, other pretrial procedures required or available; though called by similar names,
   the purpose and function of which are not necessarily the same.
   All emphasis is mine throughout unless otherwise indicated.
    [2] Rejecting any notion that the constitutional principle is limited to presence of counsel
    at trial, the Supreme Court has explained:

    "... 'It is central to that principle that in addition to counsel's presence of trial, the accused
    is guaranteed that he need not stand alone against the State at any stage of the
    prosecution, formal or informal, in court or out, where counsel's absence might derogate
    from the accused's right to afair trial.' United States v. Wade, supra, 388 U.S. at 226, 87
    S.Ct. at 1932."

    Coleman v. Alabama, 399 U.S. 1, at9, 90 S.Ct. 1999, at 2003, 26 L.Ed.2d 387, at 396
    (1970).

    [3] An "arraignment" in one jurisdiction, there Iowa, may not be the same type of
    ^proceeding" in another, for example, in Alabama. See Hamilton v. Alabama, 368 L.S.
    52, 54, at n. 4, 82 S.Ct. 157,159, at n. 4, 7 L.Ed.2d 114, at 116, n. 4 (1961) (arraignment
    has different consequences in various jurisdictions); see also Fed. Rule Crim.Pro. 10 and
    11.

    Accordingly, one must examine the cases with some care before likening another to our
    own particularly focussed pretrial "arraignment" required by Article 26.01 and prescribed
     in Articles 26.02, V.A.C.C.P. But compare "Forty Eight Hour Hearing" formerly prescribed
     in Harris County, described in Ex parte Clear, 573 S.W.2d 224, at 226-227
     (Tex.Cr.App.1978), with an Article 15.17 proceeding before a magistrateelsewhere
     sometimes called an "arraignment," e.g., Michigan v. Jackson, 475 U.S. 625,106 S.Ct
     1404, 89 LEd.2d 631 (1986) (passim).




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   [4] More p^rt'cu'ari- fr' "epr uranimous Supreme Court (two justices concurring with
   opinionsV Ju *«ti' 2 uc ve wi Dt'.
   "The Court of Appeals ... read Kirby as holding that evidence of corporeal identification
   conducted in the absence of defense counsel must be excluded only if the identification
   is made after the defendant is indicted, [emphasis in original; record cites omitted]. Such
   a reading cannot be squared with Kirby itself, which held that an accused's rights under
   Wade and Gilbert attach to identifications conducted 'at or after the initiation of adversary
   judicial criminal proceedings,' including proceedings instituted 'by way of formal charges
   [or] preliminary hearing.' [citations omitted]. The prosecution in this case was
   commenced under Illinois law when the victims' complaint was filed in court, [citation
   omitted]. The purpose of the preliminary hearing was to determine whether there was
    probable cause to bind petitioner over to the grand jury and to set bail. Petitioner had the
    right to oppose the prosecution at that hearing by moving to dismiss the charges and to
    suppress the evidence against him. [citation omitted]. He faced counsel for the State,
    who elicited the victim's identification, summarized the State's other evidence agairst
    petitioner, and urged that the State be given more time to marshal its evidence. It is. plain
    that 'the government ha[d] committed itself to prosecute,' and that petitioner found
    'himself faced with the prosecutorial forces of organized society, and immersed in the
    intricacies of substantive and procedural criminal law.' Kirby, supra, 406 U.S. at 689, 92
    S.Ct., at 1882. The State candidly concedes that this preliminary hearing marked the
    'initiation of adversary judicial criminal proceedings' against petitioner [record references
       omitted], and it could hardly contend otherwise. The Court of Appeals therefore erred in
       holding that petitioner's rights under Wade and Gilbert had not yet attached at the tme of
       the preliminary hearing."

       Id., 434 U.S. at 228-229, 98 S.Ct., at 464-465, 54 L.Ed.2d, at 433-434.
       [5] "There can be no doubt in the present case that judicial proceedings had been
       initiated against Williams ... Awarrant had been issued for his arrest, he had been
       arraigned on that warrant before ajudge ..., and he had been committed by the jud.ge to
       confinement in jail."

       Id., 430 U.S. at 399, 97 S.Ct., at 1239-1240, 51 L.Ed.2d, at 436.
       In United States v. Goveia, 467 U.S. 180,104 S.Ct 2292, 81 L.Ed.2d 146 (1984), tne
       Supreme Court noted that subsequent cases had confirmed the view that the right :o
       counsel attaches with "initiation of adversary proceedings," citing, e.g., Moore v. Illinois,



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   supra, 43" US. at ^6-oo7 98 s.Ct, at 463-464, 54 L.Ed.2d, at 432-434 and Brewer v.
   William? •u; •» 4*u J.i .a 3' C^99, 97 S.Ct., at 1239-1240, 51 L.Ed.2d at 435-427.
   [6] The opinion of the Supreme Court actually decides two causes ultimately
   consolidated for purposes of appeal by the Supreme Court of Michigan: People v. EJIadel
   and People v. Jackson, 421 Mich. 39, 365 N.W.2d 56 (1984).
   The respective homicide offenses are not related, but each cause presents a common
   question, to-wit:

   "Whether the rule of Edwards v. Arizona, 451 U.S. 477,101 S.Ct. 1880, 68 LEd.2e 378
   (1981) 'applies to adefendant who has been formally charged with acrime and who has
   requested appointment of counsel at his arraignment.'"
   The court below held that postarraignment confessions were improperly obtained in
   violation of the Sixth Amendment because both Bladel and Jackson "requested counsel
    during their arraignments, but were not afforded an opportunity to consult with cour sel
    before the police initiated further interrogations." Michigan v. Jackson, supra, at 626,
    S.Ct, at 1406, LEd.2d, at 636, quoting from 421 Mich., at 67-68, 365 N.W.2d, at 69. The
    Supreme Court agreed with that holding. Ibid.
    In Jackson's case, the Michigan Supreme Court points out that since he was arrestsd for
    afelony without awarrant, the arresting officers were required by a Michigan statuta "to
    bring him before a magistrate for arraignment without unnecessary delay." 365 N.W.2d at
    70. Bladel was first arrested, questioned and released without being charged; when
    investigating officers later obtained evidence tending to incriminate him, the officers,
    caused him to be arrested in another state, and upon his waiving extradition and b«iing
    brought back and questioned, Bladel was arraigned before a magistrate, during wh ch he
    requested appointment of counsel.

    In those contexts, the Supreme Court justified its application of Edwards v. Arizona to the
    Sixth Amendment right to counsel"at least after the initiation of formal charges," viz;
    "Indeed, after aformal accusation has been madeand a person who had previously been
    just a'suspect' has become ah 'accused' within the meaning of the Sixth Amendmentthe
     constitutional right to the assistance of counsel is of such importance that the police may
     no longer employ techniques for eliciting information from an uncounseled defendant that
     might have been entirely proper at an earlier stage of their investigation."



                                ,/n/Mi«4. s\-F r«•••* *••** * •»•* *11   n*^*^^n   W1Q04/1188.01.A html   8/6/9015
Green v. State :: 1994 :•: Texas Court of Criminal Appeals Decisions :: Texas Case Law... Page 22 of28

   Id., 475 US. at «.3? 10* S.Ot„ -*t 1409, 89 L.Ed.2d, at 639. And after rejecting more
   opposinn re, irr ants on he si ^ %the Supreme Court concluded and held:
   "... We conclude that the assertion [of right to counsel] is no less significant, and the need
   for additional safeguards is no less clear, when the request for counsel is made at an
   arraignment and when the basis for the claim is the Sixth Amendment. We thus hold that,
   if police initiate interrogation after adefendant's assertion, at an arraignment or similar
   proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that
   police-initiated interrogation is invalid."

   Id., 475 U.S. at 636,106 S.Ct, at 1411, 89 L.Ed.2d, at 642.
   [7] "[Ajfterthe initiation of adversary judicial proceedings, the Sixth Amendment provides
   a right to counsel at a'critical stage' even where there is no interrogation and no Fifth
    Amendment applicability. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18
    LEd.2d 1149 (1967)...." Michigan v. Jackson, supra, 475 U.S. at 632, n. 5,106 S.Ct, at
    1409, n. 5, 89 LEd.2d, at 640, n. 5. Furthermore, the right to counsel at a"critical stage"
    does not depend on a request by the defendant. Id., at n. 6.
    [1] All emphasis is supplied unless otherwise indicated.
    [2] APIA hearing pursuant to art. 15.17 is distinct from an examining trial under art.
    16.01.

    [3] The complaint in the instant case was filed March 3,1990, the PIA hearing was held
    on March 4, and counsel was appointed to represent appellant on March 5.
    [4] In Mallory v. State, 752 S.W.2d 566, 569-570 (Tex.Cr.App.1988), we recognized that
    Tex. R.App.P. 81(b)(2) is essentially the codification of the federal "harmless error"
    standard.

    [5] See, n. 3, supra.

     [6] Appellant contends harm invariably results from the failure to appoint counsel at the
     PIA hearing because unrepresented indigent defendants "lose their time, jobs, housing ...
     [and]... all those essentials that non-indigents with lawyers pursue as a matter of
     survival...." Appellant's Supplemental Brief and Response, pg. 33.
     Initially, Inote that the record does not indicate that appellant suffered these grievances.
     However, even if the record supported appellant's claims, the harm of which appellant
     complains is not the type of "harm" contemplated by the "harmless error" rule. The loss of

                      /     u     /-.            .i      u/mn/i/noo 01 A Utml                   8/6/901^
Green V. State :: 1994 :: Texas Court of Criminal Appeals Decisions :: Texas Case Law... Page 23 of28

   one's emp'ovment «tc "'hi'e rmst unfortunate, makes no contribution to adefendant's
   conviction or nv ii<=h, ter:. £ ae, r. lie 81(b)(2). Consequently, the failure to appoint
   counsel in the instant case was harmless in a Rule 81(B)(2) context because the error
   made no contribution either to appellant's conviction or punishment.
   [1] Relying mainly on Nehman, we recently opined in Fuller v. State that an accused who
   had been arrested and charged by warrant with a criminal offense was "probably right to
   insist that an effective waiver of counsel under the Sixth Amendment was essential to the
   admissibility of his ensuing statements." 829 S.W.2d 191, 205 (Tex.Crim.App.1992). But
   we did not finally resolve the issue in that case. Instead, we found that, even assuming
   appellant was entitled to counsel under the Sixth Amendment, he had expressly waived
   that right, and that there was "an adequate basis in the record for aconclusion that his
   waiver was constitutionally acceptable, not only under the Fifth Amendment, but for Sixth
   Amendment purposes as well." Id. Hence, although Fuller does not purport to be
   authoritative asto the kind of formal criminal charges which, for purposes of the Sixth
   Amendment, mark the inception of adversary judicial proceedings in Texas, the cases
    upon which it relied do.

    [2] "There can be no doubt in the present case that judicial proceedings had been
    initiated against Williams before the start of the automobile ride from Davenport to Des
    Moines. Awarrant had been issued for his arrest, he had been arraigned on that warrant
    before ajudge in the Davenport courtroom, and he had been committed by the court to
    confinement in jail." 430 U.S. 387, 399, 97 S.Ct. 1232, 1240, 51 L.Ed.2d 424 (1977).
    [3] In other states, this procedure occasionally includes or is called an "arraignment."
    When it is, the United States Supreme Court sometimes conclusively considers it to mark
    the inception of adversary judicial proceedings because Kirby v. Illinois, 406 U.S. 632,
    689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972) (plurality opinion) once speculated that
    judicial proceedings are often initiated by means of an "arraignment." Michigan v.
    Jackson, 475 U.S. 625, 629 n. 3, 106 S.Ct. 1404, 1406 n. 3, 89 L.Ed.2d 631 (1986);
     Brewer, 430 U.S. at 399, 97 S.Ct. at 1240. In Texas, however, appearance before a
     magistrate to receive statutory warnings after arrest is neither denominated nor does it
     serve the function of an arraignment, and it is not considered to mark the inception of
     formal adversary proceedings. See Wyatt v. State, 566 S.W.2d 597, 600 (Tex.Crim.
     App.1978) (panel opinion); Tarpley v. Estelle, 703 F.2d 157, 162 (5th Cir.1983) cerl.
     denied 464 U.S. 1002,104 S.Ct. 508, 78 L.Ed.2d 697; McGee v. Estelle, 625 F.2d 1206,
     1209 (5th Cir.1980) cert, denied 449 U.S. 1089, 101 S.Ct 883, 66 L.Ed.2d 817 (1931).
     See also Garcia v. State, 626 S.W.2d 46, 53 (Tex.Crim.App.1981); Thomas v. State, 605



                          „/Wor/o™,^Af_^minoLannpalo/1 004/1188-01 -4 html                     8/6/2015
                                           Chris Daniel
                                  Harris County District Clerk
                                                   .                                                Direct Dial Line:




Ronald Dwayne Whitfield               * ,_ r              *%. x *       \ ****
7522LaSalette                          \Y\C OW^ \^A€^
Houston,tx77021                         c\erK be\ooo                                       assumed
Memorandum response to correspondence received 7/31/15                             p
Re: Cause No(s) 525468.52885j5.-492674.;6177t8                                   0_^ _ L_(^aJ__^—'                      _
Dear Mr Whitfield                                                                "0\)^3d!C-Vj OY\ ."
Ixl Your motion/request was filed with the District Clerk and on 7/31/15 the Court:
      13   Took no action         \Z\ Denied your Motion/Request                 O        Granted your motion/request

FT    Our records reflect your jail time credit to be:

I I Contact TDC records for further information.

f~] Requests for certified copies:
      Q    Please include full name, date of birth, and/or cause number.

      CH   Copies must be ordered by document name for correspondence to determine how many pages, to
           be able to quote a price. The fee for certified or uncertified copies is $1.00 per page. All requests
           must include a self-addressed, stamped envelope. If the cause number is not known, there will be
           a record search fee of $5.00.


1x1 Other: These courts no longer have jurisdiction over these cases. Please consult an
      attorney W\VV0v,v (X oud>e^^ be\lrt2>
CHRIS DANIEL, District Clerk                   r€Y\A-ev                   \          Ti         I

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By:   Tvjones ^>                                       -vn-\ e\                                         «^
                    337th District Court               TeaSue S ?€c\K, PV3<^ )


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              pv ^ar+e Throws, H.— sw. 2,) —-                                                                           .
                  P.O. Box 4651   •   Houston, Texas 77210-4651     •   (713) 755-5749
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