Riggall v. State ( 1979 )

OPINION

W. C. DAVIS, Judge.

Appeal is taken following a plea of guilty to a charge of theft, where punishment was assessed pursuant to a plea bargain agreement at six years confinement. This appeal is limited to pre-trial matters raised by written motion. Article 44.02, V.A.C.C.P. In September of 1976, appellant was an inmate at the New Mexico State Penitentiary. In that same month, the State filed a detainer warrant on appellant, charging him with theft. Beginning in March of 1977, appellant communicated in writing to the State his desire to have counsel appointed and his demand for a speedy trial. In an order dated April 8, 1977, the trial court granted appellant’s speedy trial motion but failed to appoint counsel. This same order directs a return of appellant by May 1, 1977, to stand trial on the theft charge. There followed involved and confusing communications between appellant and the State, resulting in a six-month delay in getting appellant before the court and appointing counsel.¹ During this period of delay, appellant filed written motions to dismiss for failure to prosecute.²

Supporting his claim, appellant directs our attention to Article 28.01, V.A.C.C.P., which, in pertinent part, reads:

“ . . . the defendant must be present at the arraignment, and his presence is required during any pre-trial proceeding.”

Appellant urges that this procedure was violated when neither appellant nor an attorney for appellant participated in the hearing that resulted in the order overruling appellant’s motion to dismiss dated May 25, 1977.

The record does not reflect a hearing was had on appellant’s motion to dismiss. However, Article 28.01 does not speak to hearings alone but mandates the appearance of a defendant at “any pre-trial proceedings.” We must determine if this order of May 25th is a proceeding under Article 28.01.

The order overrules appellant’s motion to dismiss and recites that the cause “came on to be heard” on May 25. The order itself contains four paragraphs which are labeled by the trial court as findings of fact and conclusions of law. These recitations indicate there was at least some proceeding from which the trial court made its conclusions; therefore, the order of May 25 is a proceeding under Article 28.01. Clearly, appellant or his appointed counsel should have been present. Ex parte LeMay, 525 S.W.2d 1 (Tex.Cr.App.1975); Article 28.01, V.A.C.C.P.

The State does not discuss the failure of the trial court to appoint counsel or have appellant present on May 25. Rather, the State seems to suggest that the error, if any, was harmless because the appellant finally got his trial.

Such a harmless error argument was approved in Cleveland v. State, 573 S.W.2d 33 (1978). In Cleveland, the appellant was not present when certain written, pre-trial motions were considered. However, appellant’s attorney was present and we held that in an absence of a showing of harm, there was no reversible error. Accord, Mares v. State, Tex.Cr.App., 571 S.W.2d 303 (1978).

Appellant’s situation is factually distinguishable. The proceeding on May 25th was completely ex parte.³ The appellant was incarcerated in New Mexico and no attorney had been appointed. Such proceedings come squarely under Article 28.01, V.A.C.C.P., and harm need not be shown. Under the facts in appellant’s case, he had an absolute right to be present or to be represented by counsel.

The absence of appellant or his appointed counsel at the pre-trial proceedings of May 25 denied appellant the opportunity to support his motion to dismiss and controvert any facts presented by the State. We hold that the consideration, ex parte, of appellant’s motion to dismiss violated the provisions of Article 28.01, V.A.C.C.P.

The judgment is reversed and remanded.

DOUGLAS, J., dissents. PHILLIPS, J., concurs in results.

Before the court en banc.

1 . The record reflects two written requests for the appointment of counsel and the completion of two forums indicating a desire that counsel be appointed during the six-month period.

2 . These pro se motions are a part of this record and are the basis of our review under Article 44.02, V.A.C.C.P.

3 . The record indicates that the trial court may have been misinformed by this ex parte proceeding and thus reached an improper conclusion. The records reflect the following:

April 20 The warden of the New Mexico Penitentiary informed the State by letter that in order for appellant to be released, the State should forward form V of the “Agreement on Detainers.”

May 25 The trial court proceeded without appellant or his attorney present and concluded that the reason the appellant had not been tried was “because of his own cause.” July 11 The State encloses form V and VII in a letter to the warden in New Mexico.

These facts indicate that the State contributed to the six-month delay and would have supported appellant’s motion to dismiss.