Jay Brady Collums v. State ( 2018 )

NUMBER 13-17-00066-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JAY BRADY COLLUMS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the County Court at Law No. 2
of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Contreras and Benavides
Memorandum Opinion by Justice Contreras
Following a trial, a Victoria County jury convicted appellant Jay Brady Collums of
assault causing bodily injury to a family member, a Class A misdemeanor. See TEX.
PENAL CODE ANN. § 22.01(a)(1) (West, Westlaw through 2017 1st C.S.). Collums was
sentenced to 365 days in county jail and fined $4,000. By one issue on appeal, Collums
argues that the trial court erred by “not giving defense counsel sufficient time for her
subpoena to be served.” We affirm.
I. BACKGROUND
Collums was charged by information with intentionally, knowingly, and recklessly
causing bodily injury to Pleashette Todd, a person with whom he had a dating relationship,
by grabbing Todd with his hands and throwing her into a wall on or about June 5, 2016.
At the guilt-innocence phase of trial, Officer Jonathan Delarosa of the Victoria
Police Department testified that he was the first officer called to the scene. According to
Delarosa, Todd informed him that there was a hole in a wall in her apartment which had
been caused by Collums shoving her into the wall. On cross-examination, defense
counsel asked Delarosa whether he or Todd first “br[ought] up” the issue of the hole in
the wall. Delarosa replied that he was “pretty sure” that “she brought it up” and he “d[idn’t]
think that” he asked about it first.
Todd testified that Collums was at her apartment on June 5, 2016, to visit with their
son. According to Todd, when Collums observed that their son’s bicycle had been
damaged, he became angry and a physical altercation ensued. Todd stated that Collums
grabbed, strangled, punched, and scratched her. She stated that the hole in the wall was
caused by Collums pushing her into the wall.
After one additional State’s witness and three defense witnesses testified, defense
counsel asked to approach the bench and the trial court excused the jury. Defense
counsel explained to the trial court that she needed to confer with her client regarding
whether he was going to testify; the trial court agreed to allow a brief recess for this
purpose. The following colloquy then occurred:
[Defense counsel]: Then the other thing, and I—I take full responsibility
and full fault for this, the—there is another police officer
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that did arrive at the apartment that night, and he—he
had—he activated—it’s called his Taser body cam.
And it—it is not a very long video, it’s a short one, but
that was the one that I had submitted the subpoena for
a while ago.
THE COURT: Okay. And you did that—
[Defense counsel]: And I am actually debating whether I, you know,
actually want to do that or not, I would just ask the
Judge—
THE COURT: Okay. Well, you—when did you do that subpoena, was
it this afternoon?
[Defense counsel]: It was, yes, right around 1:00, 1:15.
THE COURT: It was probably later than that actually, probably, I think
that we were back in Court, it was probably after 1:30.
But at any rate, so you are wanting to—you haven’t
subpoenaed this police officer. Let me just kind of
inquire just so I understand—
[Defense counsel]: Yes, sir.
THE COURT: What—I mean, this police officer wasn’t an actual
witness to the alleged incident that night.
[Defense counsel]: No, he came—I guess that he was back up, and he
put—he had his body—Taser body cam on, and he
filmed a little bit of Pleashette Todd talking to Officer
Delarosa, and then he went out to his vehicle. He—
and I think that he says this on the camera, but then he
says—it is in his written report, he went out to the police
vehicle to get paperwork for Officer Delarosa, and
then—
THE COURT: What I am trying to figure out—
[Defense counsel]: —then he came back in and then he left, he said I left
to—he actually left to go look for Mr. Collums.
[Prosecutor]: Your Honor, with all due respect, counsel has had
ample time to subpoena this witness, has had ample
time to get the documents. They announced ready for
trial, scrambling to find this witness and evidence they
have been provided for.
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THE COURT: I am trying to figure out the relevance too.
[Defense counsel]: Well, there is just one piece of information in there
about the hole in the sheetrock wall. It is—I will just go
ahead and say it, it’s the—the officer—the Officer
Delarosa enters the room, and the first thing he does—
very first thing out of his mouth I believe, he asked
Pleashette Todd what is that hole in the wall. She
doesn’t talk about it, the officer brings it up. And then
her response is just kind of like, well, I don’t know what
this is. Well, she does not—she does not affirmatively
accuse Mr. Collums of pushing her into the wall.
[Prosecutor]: We have already heard testimony from Officer
Delarosa and Ms. Todd—unless [defense counsel] had
an opportunity to cross-examine this officer and call
him a liar at that time, and now she is attempting to call
the officer after he has already been excused.
THE COURT: [Defense counsel], I am—
[Defense counsel]: That’s fine, Your Honor.
THE COURT: I am inclined—well, I will take it up if you—if you insist,
but I am—at this point, you know, I told you that I was
going to be moving on today.
[Defense counsel]: That’s fine, Your Honor, and I was conflicted about
including that or calling that, and I definitely am not
calling anybody a liar, [prosecutor], I am just saying that
it’s—
THE COURT: Well, you have got—you have got a few minutes if you
want to try to get him here, and then we’ll see y’all at
3:20. And then I’ll address—let me know if you want to
call your client or not.
[Defense counsel]: All right.
The trial court then brought the jury back into the courtroom and defense counsel rested.
The jury found Collums guilty as charged and assessed his sentence as set forth
above.1 This appeal followed.
1The information included an enhancement paragraph alleging that Collums had previously been
convicted of a felony in 2009. Collums pleaded “true” to the paragraph; therefore, at the punishment phase,
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II. DISCUSSION
On appeal, Collums contends:
By failing to allow defense counsel sufficient time to get her newly issued
subpoena duces tecum[2] served on a local peace officer, the trial court
deprived appellant of exculpatory evidence (officer’s “body cam” video)
which would have tended to suggest that appellant was not guilty of his
charged offense, and that the complaining witness may have, after police
interviewed her at the scene, created an untrue explanation for how the hole
in her wall was created.
In response, the State asserts that Collums has failed to preserve this issue for appeal.
We agree.
To preserve a complaint for appellate review, the complaining party must present
a timely and specific objection to the trial court and obtain an adverse ruling. TEX. R. APP.
P. 33.1(a); Daniel v. State, 485 S.W.3d 24, 35 (Tex. Crim. App. 2016). In this case,
defense counsel did not ask for a continuance at any time but, rather, repeatedly indicated
her acquiescence to proceeding without a continuance. Moreover, the record reflects
that there was a brief recess following the above-quoted colloquy, after which defense
counsel expressed that she was ready to proceed. At no time did counsel make any
request or objection, explicit or implicit, upon which the trial court could have ruled.
Therefore, there is no issue for us to review.
Even if Collums had moved for a continuance and the trial court denied the motion,
such denial would not constitute error. The Texas Code of Criminal Procedure provides
the jury was instructed to assess a punishment of at least 90 days but not more than one year in jail, as
well as a fine not to exceed $4,000. See TEX. PENAL CODE ANN. § 12.43(a) (West, Westlaw through 2017
1st C.S.).
2Collums presumes on appeal that the subpoena referred to by defense counsel is a subpoena
duces tecum seeking production of the body-cam video. But no subpoena or subpoena duces tecum
appears in the record. And it is unclear, from the colloquy set forth above, whether or not any subpoena
was ever actually issued.
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that a mid-trial continuance “may be granted . . . when it is made to appear to the
satisfaction of the court that by some unexpected occurrence since the trial began, which
no reasonable diligence could have anticipated, the applicant is so taken by surprise that
a fair trial cannot be had.” TEX. CODE CRIM. PROC. ANN. art. 29.13 (West, Westlaw through
2017 1st C.S.). There is nothing in the record in this case showing any unexpected
occurrence that would have justified a mid-trial continuance; to the contrary, counsel
conceded that it was her fault that the witness was not present. The trial court would not
have abused its discretion in denying a continuance. See Gonzales v. State, 304 S.W.3d
838, 844 (Tex. Crim. App. 2010) (noting that a denial of continuance is reviewed for abuse
of discretion).
III. CONCLUSION
Collums’s issue is overruled and the trial court’s judgment affirmed.
DORI CONTRERAS
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
4th day of January, 2018.
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