Foster v. State

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

WHITE, Judge.

Appeal is taken from convictions for robbery, enhanced. Prior to trial, appellant moved for a consolidation of the four different robberies alleged in the four counts of the indictment into a single trial. The trial court granted the motion. On the day before the trial began, appellant waived trial by jury and elected to be tried by the court. On the same day, the State moved to dismiss the robbery alleged in Count II of the indictment, and the trial court granted the motion. The trial court convicted appellant on the remaining three robberies which were pled in the indictment. V.T. C.A., Penal Code Sec. 29.02(a)(2). At the penalty stage, appellant pled not true to both enhancement paragraphs. The trial court found appellant was previously, finally convicted of two felony offenses, V.T. C.A., Penal Code Sec. 12.42(d), and assessed his punishment at three concurrent fifty year sentences. The Court of Appeals affirmed the convictions. Foster v. State, 713 S.W.2d 789 (Tex.App.—1st Dist.1986).

In the Court of Appeals, appellant argued that he was unconstitutionally denied his right to counsel at a lineup which took place while he was serving a sentence on other unrelated charges. Appellant relied on both Art. I, Sec. 10 of the Texas Constitution and on the Sixth Amendment to the United States Constitution. The State responded that formal adversary judicial proceedings in the robbery cases had not commenced against appellant at the time of his lineup, rendering his claim without merit.

The Court of Appeals agreed with the State. Because appellant was incarcerated on an unrelated matter at the time of his lineup, the Court of Appeals decided formal adversarial judicial proceedings had not commenced against appellant in the robbery cases, relying upon Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), and Forte v. State, 707 S.W.2d 89 (Tex.Cr.App.1986). Foster, supra, at 790. For this reason, appellant was found to have enjoyed no Sixth Amendment right to counsel at his lineup. As for appellant’s claim under the Texas Constitution, the Court of Appeals stated that Art. I, Sec. 10 does not specifically delineate when the right to counsel attaches. Foster, supra, at 790. Seeing no basis for giving a defendant more protection under the Texas Constitution than he would enjoy under the Federal Constitution, the Court of Appeals held appellant’s “right to counsel based upon the Texas Constitution ... was not violated at the time of the lineup.” Foster, supra, at 791. This Court granted review on the issue of appellant’s right to counsel at his lineup under Texas law.

In McCambridge v. State, 778 S.W.2d 70 (Tex.Cr.App.1989), this Court held that “under Art. I, Sec. 10 of the Texas Constitution, a critical stage in the criminal process does not occur until charges are brought against a suspect.” ¹ McCambridge, supra, at 76. Only at that time is “necessity of counsel” for a defendant compelled. McCambridge, supra.

In the instant case, it is undisputed that when the police conducted the lineup of robbery suspects which is the basis of this appeal, appellant was serving two misdemeanor jail sentences for driving while intoxicated and possession of marihuana. These misdemeanors were unrelated to the instant robberies. At the time of the lineup, appellant had not been arrested, charged, or indicted for any of the instant robberies. Appellant enjoyed no right to counsel at this lineup under Art. I, Sec. 10 of the Texas Constitution. McCambridge, supra. Appellant’s right to a fair trial under Art. I, Sec. 10 was not denied.

The appellant’s ground for review is overruled. The judgment of the Court of Appeals is affirmed.

TEAGUE, J., dissents.

1 . The language to the contrary in Forte v. State, 759 S.W.2d 128 (Tex.Cr.App.1988) was overruled, McCambridge, supra.