Ellis v. State , 149 Tex. Crim. 583 ( 1946 )

Robbery is the offense; the punishment, fifteen years in the penitentiary.

The pivotal questions presented for our determination are: (a) Under the facts here presented, was the appellant denied the right of representation by counsel, as guaranteed by the Constitution of this State? (b) If so, does such denial require a reversal of the conviction?

Appellant was under arrest and confined in jail at the time the indictment was returned. He so remained until the trial — about three weeks thereafter. Appellant's attorney requested permission to privately consult with his client prior to trial. The request was refused. The attorney was, however, permitted to interview and consult, at will, with his client in what is referred to as the "interview room" in the jail.

The issue, then, is whether the "interview room" consultation was sufficient to comply with the constitutional mandate referred to.

The "interview room" consisting of two cells of steel construction, each about four feet square. A space of approximately fifteen inches separated the two cells. The abutting wall of each cell consisted of a solid steel panel for a height of about four feet from the floor. From that point to the ceiling, each wall was of heavy, closely woven mesh wire. A pane of glass about eighteen inches square was inserted in each wall.

During an interview the attorney would be seated in one cell opposite the glass panel; the client would be seated in a corresponding position in the other. It was only through the glass panel that the occupant of one cell could see the other and this view was limited to the head and shoulders. Demonstrations with the feet or lower limbs of one could not be seen or observed by the other. A whispered or subdued conversation could not be maintained between the occupants of the two cells. No opening existed in the two walls. Documents or papers for signature or examination could not be passed from one to the other.

The cell or room occupied by the attorney opened onto the jail corridor and was within fifteen feet of the entrance to the jail, as also the office of the jailer. Jail employees or any others passing along the corridor could see and observe the attorney and hear his ordinary conversation.

In keeping with his contention that he had not been accorded the full and complete right of consultation with his counsel, appellant — upon the call of the case for trial — filed a motion for continuance, asking that the case be continued until he had been accorded that right.

Evidence was heard upon the motion and the foregoing facts were developed, at the conclusion of which the motion was overruled. However the sheriff — under instruction of the trial court — permitted the appellant and his counsel to privately and without restriction consult during the noon recess of court, which lasted for two hours. Upon the re-convening of court the case proceeded to trial, appellant and his counsel being present throughout the trial.

Under our Bill of Rights (Const., Art. 1, sec. 10), one accused of crime is entitled to be represented by counsel. This guarantee does not mean merely representation at the trial of the case by counsel but carries with it the right of consultation with and advice by counsel in the preparation of the case for trial.

Under the facts here presented, we are constrained to agree with the appellant that the limiting of his right of consultation with his attorney to the "interview room" constituted a violation of the constitutional guarantee mentioned.

The close proximity of the jailer, jail employees, and others in and around the jail and the further fact that any conversation between the attorney and appellant was necessarily required to be in at least an ordinary tone of voice are important factors which enter into and support the conclusion reached.

As sustaining the views here expressed, see: Turner v. State, 91 Tex.Crim. R., 241 S.W.2d 162, 23 A. L. R. 1378; McBride v. State, 121 Tex.Crim. R., 51 S.W.2d 337; 14 Am. Jur., p. 885, Sec. 171; Ann. 54 A. L. R. 1225; Re Snyder,62 Cal. 697, 217 P. 777; Ex parte Qualls, 136 P.2d 341.

The question remaining is whether the limitation of consultation requires a reversal of the conviction.

In this connection, it will be noted that we are not here dealing with the question of an entire or complete denial of representation by counsel either of prior consultation or upon the trial of the case. The only issue before us arises out of the limitation imposed upon appellant's right of consultation before trial. Here, appellant was represented by counsel upon and during the trial of the case. For a period of two hours before the trial he was accorded the complete and unrestricted right of consultation with his attorney. Also, appellant was accorded the consultation in the "interview room."

Such being the case before us, the rule of law long recognized by this court to the effect that the violation of a mandatory statute or of some constitutional right or privilege, in the trial of a criminal case, constitutes reversible error is neither applicable nor controlling here. Rather, the question as to whether this conviction is or is not to be reversed turns upon whether the consultation accorded appellant with his counsel were so unreasonable and of such a nature and extent as to constitute a violation of the constitutional right of representation by counsel, in determining which we must of necessity look to the case as a whole.

Appellant was positively identified by several witnesses as the person who, at the point of a pistol, robbed the injured party of $654.00. No defense or mitigation was shown, offered, or suggested to that accusation upon the trial of the case. It was shown that appellant was under five other indictments for robbery. At no time after trial and after appellant and his counsel had heard the State's testimony and consulted freely and without limitation during the trial did the appellant claim or assert that he did in fact have a defense to the accusation against him or that, by unlimited private consultation with his attorney prior to trial, a defense or mitigating circumstances could have or might have been presented in his behalf upon the trial of the case.

Such being the facts we cannot bring ourselves to the conclusion that the limitation imposed upon appellant's right to consult with his attorney before trial was so unreasonable as to constitute a denial of the constitutional guarantee mentioned and the resultant reversal of the conviction. It follows, therefore, that the trial court did not err in overruling appellant's motion for a continuance.

Bills of exception complain of argument of State's counsel. The argument complained of in each violated no statutory or mandatory rule, nor was it inherently vicious or prejudicial. Moreover, the objection to the argument is shown only as a statement of objections which are in no manner certified as true or existing as a matter of fact in any bill of exception. Obviously, therefore, such bills of exception fail to reflect reversible error. 4 Tex. Jur., p. 390, sec. 262. The remaining bill of exception has been examined and is overruled without discussion.

No reversible error appearing, the judgment of the trial court is affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.