Pointer v. Texas

PETITIONER:Pointer
RESPONDENT:Texas
LOCATION:Harris County Justice of Peace Courts

DOCKET NO.: 577
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: Texas Court of Criminal Appeals

CITATION: 380 US 400 (1965)
ARGUED: Mar 15, 1965
DECIDED: Apr 05, 1965

Facts of the case

On the night of June 16, 1962, a man later identified by a witness as Bob Granville Pointer entered a 7-11 Food Store and robbed the manager, Kenneth W. Phillips, of more than $300. The man then fled the store, and Phillips observed him talking to another man at a nearby intersection. A police dog led officers across the street from the 7-11 store to the front yard of a nearby residence, where Pointer was standing. A search of Pointer’s person revealed eighty-one dollars in his billfold, and a later search revealed sixty-five dollars hidden in a discarded shoe.

The police arrested Pointer and Lloyd Earl Dillard and took them before a state judge for a preliminary hearing; the state charged them with robbing Phillips of $375 by assault, violence, or by putting in fear of life or bodily injury, in violation of Texas law. An assistant attorney general conducted the prosecution and examined witnesses, but neither of the defendants had a lawyer. Dillard tried to cross-examine Phillips, but Pointer did not.

Pointer was indicted on the robbery charge. At trial, Pointer testified on his own behalf, denying his alleged role in the robbery and swearing he had never been in the 7-11 store. The state offered a transcript of Phillips’ testimony as evidence because Phillips had since moved out of Texas and did not intend to return. The defense objected to the use of the transcript as a denial of Pointer’s right to confront a witness. The trial judge overruled because Pointer was present at the preliminary hearing, and Pointer was convicted of murder. The Texas Court of Criminal Appeals affirmed his conviction, rejecting Pointer’s claim that the use of the transcript violated his rights under the Sixth and Fourteenth Amendments.

Question

Did Texas violate Pointer’s Sixth and Fourteenth Amendment rights by admitting evidence drawn from a preliminary hearing where Pointer was not represented by counsel?

Earl Warren:

577, Pointer versus Texas.

Ready?

Orville A. Harlan:

Yes, Your Honor.

Gilbert J. Pena:

I think so, Your Honor.

Earl Warren:

Very well.

We’ll proceed with that — with that case then.

Orville A. Harlan:

Mr. Chief Justice, and may it please the Court.

The question presented in this case as we feel the same as presented in White versus Maryland, 373 U.S. 59.

In this particular case, the examining trial testimony was adduced at the trial upon in which the petitioner was convicted.

At the time of the examining trial, the petitioner was not represented by counsel.

We say that the examining trial in this case was critical for this was the only opportunity that the petitioner had for cross-examining the complaining witness.

And we feel that the cross-examination of a complaining witness in a criminal proceeding is a critical stage of a — critical stage of criminal prosecution.

The facts briefly in the case are that the petitioner was arrested within a few blocks of a robbery and nine days later —

William J. Brennan, Jr.:

Within a few blocks of what?

Orville A. Harlan:

Within a few blocks of a recent robbery.

And nine days later, an examining trial was held pursuant to the statutes of Texas to — at which time, the complaining witness, the manager of the drive-in grocery store, testified and identified the petitioner as the party who had committed the robbery and his testimony also gave out all the necessary elements of the offense of robbery by assault under Texas law.

The petitioner at the examining trial was not represented by counsel.

He was not advised that he had a right to counsel, and he did not ask for a contingence to secure counsel nor was counsel offered to him.

At the trial at which he was convicted, the complaining witness had moved to California.

This was approximately three or four months after the — the alleged offense.

The State had utilized no diligence in obtaining the witness present for the trial but instead introduced in evidence the examining trial testimony which had been adduced when he did not have counsel.

I like to point out that he did have a counsel at the trial in which he was convicted but we feel that the fact that the testimony of the main witness in the case being adduced when he did not have a counsel was tantamount to conducting a portion of the trial in which he was convicted without a counsel.

Arthur J. Goldberg:

Counsel objected at the trial.

Orville A. Harlan:

Yes, Your Honor.

Arthur J. Goldberg:

(Inaudible)

Orville A. Harlan:

Yes, Your Honor.

Counsel at the trial did not raise White versus Maryland.

He objected because of no predicate had been laid for the intro — introduction under Texas law.

And also, he did make two objections, I believe, the record will reveal as to denial of confrontment of witnesses.

Arthur J. Goldberg:

In other words, what you are saying is (Inaudible) cross-examined?

Orville A. Harlan:

Yes, Your Honor.

Arthur J. Goldberg:

Immaterial (Inaudible)

Orville A. Harlan:

Yes, Your Honor.

The — actually, the — there was some problems with the appointment of counsel.

Apparently, the petitioner for one reason or another, he wanted other counsel than that which he had.

I was personally appointed after the trial on the appeal.

And the Court of Criminal Appeals in discussing White versus Maryland said that in this particular case that it was not a critical stage in as much as the examining trials in Texas is for the reason — for the purpose of determining whether an accused is to be remanded to jail, admitted to bail, or discharged.

And they attempted to distinguish White versus Maryland and so stated that the examining trial at the preliminary hearing as it is called in Maryland, in that case, was critical because the accused in the Court of Criminal Appeals speaking was forced to enter a plea, which we submit that the — under the provisions of Maryland law, the examining trial in Maryland, at the preliminary hearing in Maryland, is exactly the same as the procedure in Texas because at White versus State of Maryland, the Maryland Court of Appeals on page 882 of 177 Atlantic Reporter 2d is approximately the same language that was — that our Court of Criminal Appeals used.

They say that there was no requirement, nor any practical possibility under our present criminal procedure to appoint counsel for appellant at the preliminary hearing before the magistrate, nor was it necessary for appellant to enter a plea at that time.

Certainly, it was under Maryland procedure that it was necessary at the arraignment and he did enter a plea of not guilty at the arraignment.

But having entered a plea at the preliminary hearing of guilty that was later used in evidence against him at the trial in which he was convicted and this Court held that that was a critical stage in that particular case.

The State — the respondents seems to say in their brief that there’s no denial of due process for three reasons.

One, that the taking the position of the Court of Criminal Appeals did at the examining trial was not a critical stage because it was for the limited purpose of determining whether that he should be admitted to bail or remanded to jail or freed.

Earl Warren:

Is there no requirement at the preliminary examination that a man be advised of his rights to counsel and so forth?

Orville A. Harlan:

Not in Texas — under Texas provisions —

Earl Warren:

The statute doesn’t provide for that?

Orville A. Harlan:

The statute provides, Your Honor, that he had — it does provide, I beg your pardon, for advising him that he has a right to a continuance if he asks for it to secure counsel.

Under Texas law, the State and the defendant himself neither necessarily had to have counsel.

If there’s no counsel present, the Justice of the Peace, who is in charge of conducting the examining trial asks the questions and that is reduced to writing.

Earl Warren:

But it doesn’t say that he shall advise him of his right to counsel at all?

Orville A. Harlan:

My understanding of the statute is that it does not.

Actually, the examining trial testimony — examining trial in Texas as a general rule is strictly for that purpose.

It is only in this particular instance which we feel that that was critical because this was the only time that he was confronted with — for cross-examination purposes and he did not have counsel at that time.

(Inaudible)

Orville A. Harlan:

Yes, Your Honor.

It’s necessary under Texas law in the robbery by assault cases that the — someone testified — that the robbery occurred through forced threats or fear.

(Inaudible)

Orville A. Harlan:

And this — the complaining witness testified as to these essential elements that man — the robber came in and exhibited a pistol.

And at that time that he was in fear of his life or serious bodily injury and gave up the money as a result of this.

No other testimony from any other witness covers these essential elements.

Orville A. Harlan:

It’s our position that if the exam — the examining trial testimony — the testimony of the complaining witness was not in the case, then there would have been no problem as to securing an instructed verdict of not guilty because you have to have these elements.

Absent that, Mr. Harlan.

Orville A. Harlan:

I beg your pardon?

Absent that, I didn’t figure.

What happened to the complainant?

Orville A. Harlan:

He had moved to California after the robbery and before the main trial.

He wouldn’t come back?

Orville A. Harlan:

The record does not reveal, Your Honor.

We have in Texas, as a number of states do.

They have enacted the Uniform Act to secure the attendance of witnesses.

Several years before this particular case, a defendant had attempted to introduce an examining trial, I believe, testimony — no, I beg your pardon.

He had — he had attempted to secure the attendance of the — of the witness — allow me again.

He had tried to introduce the examining trial testimony and the State opposed him and the Court of Criminal Appeals said that — that they did not have to use any diligence under the Uniform Act that it was alright to use the examining trial testimony.

And they — the Court of Criminal Appeals cite that particular case saying that the State is not required to exercise any diligence to reproduce the testimony.

Potter Stewart:

But Phillips had been available as a witness as opposed this examining trial testimony would not have been in this Court.

Orville A. Harlan:

It would only be admissible, Your Honor, to impeach him if — if it was possible at — at all.

Potter Stewart:

Then that’s not really admissible.

That’s just its use —

Orville A. Harlan:

Yes, that would be for the use actually of the — of the defendant.

The state —

Potter Stewart:

And that — and that would be the normal course — that would be — it is the normal course of events in Texas, I suppose, because generally the complaining witnesses are available for trial.

Orville A. Harlan:

Yes.

Actually, Pointer since 1927 is the ninth case in which — that I’ve been able to locate, in which the examining trial testimonies have been introduced into evidence —

Potter Stewart:

At the trial, the ninth case —

Orville A. Harlan:

At the trial.

Potter Stewart:

The ninth case.

Orville A. Harlan:

The ninth since 1927.

Potter Stewart:

In almost 40 years.

Do you have those cited in your brief?

Orville A. Harlan:

I do not have them cited for purposes of argument, but I did not quote entirely here the citations and I’d be glad to give them.

Potter Stewart:

I’m be able to — if — it’s maybe easier to give us a list —

Earl Warren:

Yes.

Give us a memorandum of that —

Orville A. Harlan:

— to be placed.

Arthur J. Goldberg:

Of course if an appellant who had testimony (Inaudible).

Although he testified at the criminal hearing (Inaudible)

Orville A. Harlan:

If he had testified at the trial, I — I would have seen no federal grounds.

Arthur J. Goldberg:

Or if it had not been introduced.

Orville A. Harlan:

If it had not been introduced.

That’s correct, Your Honor.

Arthur J. Goldberg:

(Inaudible)

Orville A. Harlan:

Oh, the only way that it is critical, if it please the Court, is the same way that the White case was —

Arthur J. Goldberg:

(Inaudible)

Orville A. Harlan:

It is not a normal proceeding at all and I don’t think that for this Court to reverse this case would cause any stir in Texas.

I — I don’t think that it’s necessary.

The general rule to appoint counsel in examining trial because generally, as a matter of policy, it doesn’t serve this type of purpose.

It’s only in a rare instance that the complainant or — or the necessary witness does not appear.

But I — I feel that the — with some diligence that the State may have at the time — this is my own conjecture — may have been able to determine that — that Mr. Phillips would not be available.

And if that were so, why certainly, there are procedures in Texas for having notice to the defendant having secured counsel and — and the stage is — is set then for the reproduction later on.

But we feel though that White versus Maryland certainly is the White horse case in this case which I see no difference between the — the examining trial or the preliminary hearing as they call it in Maryland, and the plea of guilty that was entered there.

And the examining trial in Texas and the cross — the lack of cross-examination of the complaint witness in this case and we feel that White versus Maryland controls disposition of this cause.

Thank you.

Earl Warren:

Mr. Pena.

Gilbert J. Pena:

Mr. Chief Justice, members of the Court.

This, as counsel has explained to the Court, was a robbery by assault case wherein the defendant was apprehended a — a couple of blocks from the scene of the crime, the robbery.

The date of the offense was June 16, 1962.

Now, from the day of the arrest, there were nine days that expired — from the date of the arrest to the day of the examining trial, what is known in Texas as examining trial is a preliminary hearing.

At that time, Kenneth Phillips, who was the person who was robbed, testified and identified the defendant.

There was also some other testimony in there but at that time, there was a positive identification, alright.

The defendant, Pointer, did not have a lawyer.

Gilbert J. Pena:

There is no provision in Texas for the appointment of lawyers at the examining trial.

In — at the examining trial in Texas, no pleadings have to be made.

He doesn’t have to enter a plea of guilty or not guilty.

There is absolutely nothing that he has to do but just sit there and listen.

The magistrate will determine whether or not there is probable cause to binding it over to the grand jury.

Hugo L. Black:

Is the State represented?

Gilbert J. Pena:

Normally, yes.

But there is a — the statute does not say that the State has to be present.

In the event that the State does not choose to be present, then the magistrate inquires into the facts to determine whether or not to set bail, discharge him, or send him to the grand jury.

I need to point out this — that after the man was indicted.

The case was originally set for trial on August 14, 1962.

At that time, on motion of the defendant, the case was — was passed to give him an opportunity to obtain counsel.

Now, at this time, he had never asked for counsel up to this time and the Court was never appraised of the fact that he might be a pauper or he might not be a pauper.

The case was passed from August 14th to September the 17th.

At that time, once again, the case was called for trial and the defendant announced that he was not ready.

He needed more time to get another lawyer — a lawyer.

So once again, the — the Court passed the case but at that time, the Court decided, “Well, I am going to appoint you a lawyer by the name of — of Charles W. Gill, just in case you don’t have a lawyer the next time the case comes — comes to trial.”

Alright.

On November 6th, the case was called to trial, the third time.

It had five months that expired from the time of the arrest to the time that the case finally went to trial.

At that time, the Court asked for the announcement of whether the defendant was ready or not.

He said he still didn’t have a lawyer.

But his family had been trying to get Mr. C. C. Divine of Houston to represent him.

Well, there was some discussion about the employment of counsel.

Finally, the Court just decided to go ahead and proceed with the case and appoint C. C. Divine to assist Mr. Gill to represent the defendant.

Nowhere did the defendant ever claim to be pauper.

As a matter of fact, there is testimony in the record that he was acquainted with at least four lawyers in Houston, Texas.

He had paid one Sam Hoover and that’s in the record, a sum of about $600 to represent him in another case.

He had called on one John Cutler to represent him in another case.

Clyde Gordon — I point these out because to — to point out that this man was a person who was appointed with a number of lawyers and could have very well hired himself a lawyer to represent him at the examining trial.

Potter Stewart:

Mr. Pena the — however that may be the upshot of this was because of the complaining witness’ absence and permanent move to the State of California, the upshot of this was that the defendant was denied or at least prevented from any possibility of cross-examination of this essential witness of this criminal trial, isn’t that correct?

Gilbert J. Pena:

Yes, sir.

Potter Stewart:

There is a case in this Court, at least one not probably good as many others implying that the right of cross-examination is a — is an essential constitutional right.

That’s the Alford case in 282 U.S.

Are you familiar with that case?

Gilbert J. Pena:

No, sir.

I’m not.

Potter Stewart:

It’s — well, it’s in your appellant brief, Alford against United States.

Gilbert J. Pena:

Yes, sir.

I’m familiar with that.

Potter Stewart:

So that — and if I understand it, in the normal course of events with only nine exceptions, apparently or the nine recorded exceptions in the last 40 years, this problem would not arise because the complaining witness presumably would be present at the criminal trial, isn’t that right?

Gilbert J. Pena:

Yes.

Potter Stewart:

So that the — normally, there perhaps wouldn’t be the necessity for counsel at the — what you call the examining trial or the preliminary hearing.

But — but when this problem does arise, doesn’t what happened here result in Texas through its prosecuting attorney and judicial system by admitting this transcript of the complaining witness’ prior testimony before the trial doesn’t Texas deprive the defendant of the right of cross-examination?

Gilbert J. Pena:

I would have to answer that, yes, Your Honor.

But I would like to point out that Pointer did cross-examine some witness at the examining trial.

It wasn’t Phillips, the missing witness but he did cross-examine at least one of the witnesses.

There were two defendants in this case by the way and Dillard, the other defendant, did cross-examine Phillips.

Byron R. White:

He has no lawyer?

Gilbert J. Pena:

No, sir.

By himself.

Byron R. White:

(Inaudible)

Gilbert J. Pena:

No, sir.

Byron R. White:

(Inaudible)

Gilbert J. Pena:

No, sir.

It does not.

But let me say this, that the evidence that was introduced in the trial was overwhelming.

That testimony the State could have done without.

I didn’t try the case but I’ve studied the record and let me point out that there was one eyeball witness, the sister of Phillips who testified, she was sitting outside the drive-in while the robbery was being — in progress.

She and her brother followed the defendant.

Gilbert J. Pena:

Next, there’s a testimony of an officer who arrived at the scene and found this automobile just a couple of blocks from the drive-in.

Byron R. White:

But you don’t suggest that the State would have had a case without the testimony of the complaining witness, do you?

Gilbert J. Pena:

Well, no, sir.

I have to admit that — that testimony —

Byron R. White:

I gather you were making a point that — that you were at least inferring that the lack of counsel at the examining trial wasn’t the State’s fault.

Do you — do you think the petitioner here could have had counsel in this trial by using his own funds and resources?

Gilbert J. Pena:

I think so.

Yes, sir.

Byron R. White:

Are you saying that it wasn’t the State’s job to give him a lawyer at his examining trial?

Gilbert J. Pena:

It would have been the State’s job, Your Honor, had he asked for it, and if he couldn’t afford one.

But in this case, it seems to me that the record will indicate that he had hired lawyers —

Byron R. White:

So you’re suggesting that whatever the rule may be with regard to an indigent defendant who’s — who is faced with testimony at his trial which is produced at the examining trial that if the fellow can hire — afford to hire or pay his own lawyer and fails to do so for purposes of an examining trial he hasn’t got any complaints later.

If the appellant can actually hire his own lawyer and doesn’t do it that that gets the State off the hook if they want to — if it wants to introduce that evidence later at the trial.

Gilbert J. Pena:

Well, of course in that case, I don’t think the evidence would be — the testimony would be admissible because the State would have to show why the witness was not there.

Byron R. White:

Well, I know.

Assuming that it shows it, it shows that he’s — that — take it — say it was this case.

In this case, the State said the witness was in California —

Gilbert J. Pena:

Yes, sir.

Byron R. White:

— moved away.

And that therefore, the testimony was admissible.

Gilbert J. Pena:

Well, I think — well, of course, that’s his choice if he wants to not hire a lawyer for the trial.

He could just go ahead and try it himself if he chose to.

In this case — let me — let me point out that this case was passed on two occasions at — on the motion of the defendant.

The State was ready to go to trial but the defendant wanted more time and more time, and five months passed from the date of the offense to the — the date of trial —

Byron R. White:

Well, who —

Gilbert J. Pena:

— to help —

Byron R. White:

Who finally represented him on his trial?

Gilbert J. Pena:

A court-appointed lawyer who was appointed by the Court not because he was a pauper but because the Court wanted to get on with the trial and a lawyer that his family had been trying to retain, C. C. Divine and Charles W. Gill.

Hugo L. Black:

How did the Court happen to appoint a lawyer to defend him on the appeal?

I understood Mr. Harlan, say he was appointed by the Court?

Gilbert J. Pena:

Yes, he was.

Hugo L. Black:

Well, how did that happen?

Gilbert J. Pena:

I don’t know.

He is up here Your Honor on pauper’s oath.

I know the case is up on the pauper’s oath.

Hugo L. Black:

He appears as an indigent?

Gilbert J. Pena:

Yes, sir.

He appears as an indigent.

William O. Douglas:

I don’t — I noticed that neither of you mention Snyder versus Massachusetts in the 291st respecting the rather confrontation as a federally protected right in the state trial.

What I’m — what I’m getting at is, does the Texas Constitution require confrontation like our Sixth Amendment?

Gilbert J. Pena:

Yes, it does.

William O. Douglas:

What did your state court say about the Texas Constitution?

Gilbert J. Pena:

It didn’t say anything at all, Your Honor.

It didn’t mention it.

There is — there is something else that I have to point out that after the Court had appointed Charles W. Gill, the defendant on two separate occasions refused to discuss the case with his court-appointed lawyer.

He didn’t want it.

He didn’t want a court-appointed lawyer, and that’s in the record.

That’s — and on page 5 of the record, there — the testimony by Pointer himself that he wrote a letter to this lawyer asking him — relieving — to relieve him of appointment.

So even after the Court had bent over backwards and appointed him a lawyer at the trial, he refused to — the defendant refused to discuss the case with him.

Earl Warren:

We’ll recess now Mister.

Gilbert J. Pena:

The decision that this Court will make is whether or not this man actually got a fair trial.

Now, we take the position that the testimony offered from the examining trial was cumulative of the — the rest of the testimony.

Now, as I pointed out before, there — there was eyeball witness to the — to the robbery.

They followed the defendant.

There was an officer who found his car parked and had a flat tire.

There was a dog, who went from the automobile, a K9 police dog following the scent of the 7-Eleven food store, and then that dog crossed the street, went a couple more blocks, and found the defendant.

This is how the defendant was apprehended.

There’s the testimony of an officer who arrested him, who put him in the police car, and in the police car, the defendant took off his shoe and tried to — to dispose the $65 that he had hidden in the bottom of the shoe.

There was also $81 that he had in his possession from the money that was stolen.

So, the fruits of the crime were actually found on the defendant’s —

Earl Warren:

Well, Mr. Pena, who but the complaining witness could have said that he gave — gave up this money by reason of the force and the fear that it created in him on the part of this defendant.

Who could have — who could have supplied that important element of the crime?

Gilbert J. Pena:

Well, it was attempted to be done by the sister who actually observed the robbery.

Earl Warren:

Could she tell what was in the mind of the — of the complaining witness?

Gilbert J. Pena:

No, but she saw the expressions on his — on — on her brother’s face and there’s testimony in the record for that effect, saw the face of the — of her brother, saw that he had turned pale white.

And I realize that this is a really awkward position for the State to be in but there was evidence beyond the reasonable doubt as to the man’s guilt, undoubtedly.

There was the — the fruits of the crime, the dog who’s certainly unbiased and who followed him and caught him.

There was —

Earl Warren:

But then the lawyer had cross-examined the complaining witness and had in some way or another discredited his testimony, would you still have had this good a case as you’ve got?

Gilbert J. Pena:

No, sir.

And neither had it discredited his testimony.

Earl Warren:

Alright.

Well, now that — that’s what cross-examination is afforded for, to give an opportunity to do.

Gilbert J. Pena:

Yes, sir.

Earl Warren:

That’s all it’s for.

Gilbert J. Pena:

There was also part of that testimony that was introduced by the defendant’s lawyer during the trial for their own use, so that the State was not the only who offered the testimony.

Some of it was offered by the State but then the defendant came back and introduced a part of it and page 27 of the record will reflect that they offered part of the cross-examination by Dillard into evidence during the trial.

So they took advantage of this testimony.

William J. Brennan, Jr.:

(Inaudible)

Gilbert J. Pena:

Your Honor as I read the record — now, I realize that we’ve assumed that there was an objection made.

Now, as I read the record on page 20 —

William J. Brennan, Jr.:

Well, excuse me.

I thought the counsel was appointed?

Gilbert J. Pena:

Yes sir, that’s the impression —

William J. Brennan, Jr.:

Two objections on the one hand (Inaudible)

Gilbert J. Pena:

Well, it — there’s — there’s about three pages of — of testimony between the Court and Mr. Divine and the District Attorney.

In there, I find that — that the statements like — like this for Mr. Divine, “Alright, Your Honor, may it please Your Honor, we have no objection to this testimony here.”

That’s in the bottom of page 20.

Then, at the middle of page 21, he says, “We object to the State offering all or any part on the grounds that they haven’t properly qualified it as perpetuating testimony first.”

Then on the next page, continuing the discussion with the Court, the Court, “Then you are not objecting to the encircled part or the part that is in brackets?”

Gilbert J. Pena:

That is on the first page of this examining trial testimony.

Mr. Divine, “No, sir.

I have no objection to it.”

So really, I don’t know whether they did or not.

But I know that they offered part of it.

(Inaudible)

Gilbert J. Pena:

I believe so, Your Honor.

I believe so.

But then again, we are faced with page 27 wherein Mr. Divine offered part of — offered part of the testimony, the cross-examination from Dillard.

That was accurate under the (Inaudible)

Gilbert J. Pena:

Yes, sir.

(Inaudible)

Gilbert J. Pena:

Yes sir.

(Inaudible)

Gilbert J. Pena:

That’s right.

In closing, I would like to say this, that if — if there was an error committed, then we say that the error was committed by the trial judge in allowing that testimony to be introduced an evidence at the trial.

We do not feel that any error was made at the examining trial.

And I — I make that statement —

Earl Warren:

Mr. Pena, if I understood counsel correctly, he said that, if — if this testimony had not been introduced in the trial or if the complaining witness had been present at the trial that they would not claim error in this case, and he nods his head now, so that’s — that’s all we’re dealing with, whether this man was entitled to confrontation, whether he got confrontation to this procedure that you have — have used or whether that’s an item of a fair trial?

Gilbert J. Pena:

As counsel has pointed out, Your Honor, we have no way in the world to appoint counsel to examining trials and even after the Court appointed him a lawyer.

Earl Warren:

I know, but that — you can’t unring a bell, Mr. Pena.

And if this testimony was gotten in front of him at the time when he didn’t have a lawyer and he didn’t have a fair opportunity to cross-examine.

And then you use it on the trial against him, that’s the gravamen of the situation, not his conduct when he was at the trial.

Isn’t that true?

Gilbert J. Pena:

It’s true, Your Honor.

It’s true.

But we have to take the position though that in our — in our State, there was no provision for the appointment of counsel at the examining trial.

That’s why we say if error was made, it was made at the trial by the introduction of the testimony.

But not because it was the critical stage of proceedings the way it was pointed out in White versus Maryland or in Hamilton versus Alabama.

In our State, the examining trial is not a critical stage of proceeding because at that time, the defendant does not have to say anything.

Gilbert J. Pena:

He is not barred from presenting any issues of insanity or alibi or any pleas and abatement, that he will not be barred from presenting any of those pleas at the time of trial.

Earl Warren:

Well, I suppose —

Gilbert J. Pena:

In this case —

Earl Warren:

I suppose, Mr. Pena, that whether the examination is a critical part of the procedure, normally it could be changed depending upon the use it was made then, couldn’t it?

Gilbert J. Pena:

Yes, sir.

As a matter of fact —

Earl Warren:

That’s what they complain up here, not — not that they didn’t — he didn’t have a lawyer at that place but that the testimony that they took there was used at the trial, where he had no real opportunity to cross-examine such as a man would have he been advised of his rights to have a lawyer and then have lawyer.

That’s a critical thing, it seems to me.

Gilbert J. Pena:

I believe that’s right.

Thank you very much.

Earl Warren:

Have you finished your argument Mr. Harlan, you have a few minutes, yes.

Orville A. Harlan:

Now, I would like to give one observation Mr. Chief Justice, if I may.

I agree with the Chief Justice that this was the critical area, but Mr. Pena has indicated in his brief and by argument here before the Court a third issue as — and that would be what I recall waiver by estoppel that his conduct immediately prior to the trial in which he was convicted should be implied that — that he had waived counsel back at the examining trial.

Certainly, the opinions of this Court among which are Carnley versus Cochran, Gibbs versus Burke, Johnson versus Zerbst, Rice versus Olsen, and Uveges versus Commonwealth of Pennsylvania, all indicate that waiver must be knowingly and understandingly made.

And in Rice versus Olsen the Supreme Court of Nebraska implied waiver from a plea of guilty and this Court held that you cannot imply a waiver by conditions subsequent such as a plea of guilty.

And I feel that the same thing here if you call this waiver by estoppel because of his conduct later on that he still was not advised of his right to counsel and he did not understandingly and knowingly waived counsel at the examining trial.

And this is a critical area and we feel that it should be reversed.

Thank you.

Earl Warren:

Well, Mr. Harlan —

Orville A. Harlan:

Yes, sir.

Earl Warren:

— before you sit down, I would like to express thanks from the Court to you for representing this indigent defendant.

We realize that it’s a great burden on a counsel to carry a case to this Court in that manner, but it is a public service and we appreciate it.

So, we thank you, and we thank you Mr. Pena for your — your representation of the interest of the State of Texas.

Gilbert J. Pena:

And I thank the Court.