Elton Paul Colomb, Jr. v. State ( 2009 )

IN THE
TENTH COURT OF APPEALS
No. 10-08-00039-CR
ELTON PAUL COLOMB, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 66th District Court
Hill County, Texas
Trial Court No. 34,977
MEMORANDUM OPINION
Elton Paul Colomb, Jr. was charged with theft under $1,500, which was elevated
to a state jail felony by two earlier theft convictions and was enhanced to a second-
degree felony by two prior felony convictions. TEX. PENAL CODE ANN. § 31.03(e)(4)(D)
(Vernon Supp. 2008); see also id. § 12.42(a)(2) (Vernon 2006). Punishment was assessed
at 15 years in prison and a $2,000 fine. Because Colomb did not object to the exchange
of benches, waived his right to counsel and was properly admonished regarding the
dangers and disadvantages of self-representation, failed to prove his appointed
counsel’s ineffectiveness, and failed to present a written and sworn motion for
continuance, the trial court’s judgment is affirmed.
BACKGROUND
In the spring of 2007, Colomb was on drugs and in trouble. A friend decided to
help him; and when she picked him up, he was incoherent. She allowed him to sleep in
her van while she went to Wal-Mart to shop for groceries. When she returned, Colomb
was gone and so were a set of tools and a toolbox. Colomb left a note saying, “I’m
sorry.” A short time later, police responded to a medical assistance call and found
Colomb in the same Wal-Mart parking lot, pushing a shopping basket with the toolbox
inside. The toolbox and tools were identified as those taken from the van.
ISSUES
Exchange of Benches
Colomb asserts that the judge of the Hill County Court at Law, Judge Harris, was
not qualified to conduct Colomb’s jury trial. The felony charge against Colomb was
filed in the 66th District Court in Hill County. The County Court at Law in Hill County
has concurrent jurisdiction with the 66th District Court in felony cases other than capital
murder cases. TEX. GOV’T CODE ANN. § 25.1112(a) (Vernon Supp. 2008). And in matters
of concurrent jurisdiction, the judge of the County Court at Law and the judge of the
66th District Court may exchange benches, transfer cases, and assign each other to hear
cases in accordance with orders signed and approved by the judges involved. Id. (h).
About a month before trial, Judge Harris of the County Court at Law and Judge
McGregor of the 66th District Court signed an administrative order which indicated
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there would be an exchange of benches regarding Colomb’s case. Judge Harris then sat
as the judge of the 66th District Court when Colomb’s case was called to trial.
Colomb did not object to Judge Harris presiding over his trial, but he contends
that he may raise his complaint for the first time on appeal. We do not agree with
Colomb. Although he couches his issue and argument in terms of “not qualified” and
“disqualified,” Colomb alleges no reasons why Judge Harris is statutorily or
constitutionally “disqualified” from presiding over his trial. See TEX. CONST. Art. V, §
11; TEX. CODE CRIM. PROC. ANN. art. 30.01 (Vernon 2006) Instead, Colomb’s complaint
focuses on the allegedly flawed procedure used by which Judge Harris presided over
his trial—the assignment or exchange of benches.
We are not presented with the question of a judge who is disqualified as a matter
of law which can be raised for the first time on appeal. See Miller v. State, 866 S.W.2d
243, 246 n.6 (Tex. Crim. App. 1993); Ex parte Vivier, 699 S.W.2d 862, 863 (Tex. Crim. App.
1985). Further, we are not presented with a question of lack of jurisdiction of the
convicting court.
Lack of jurisdiction over a case renders the judgment void, and it may be
collaterally attacked. See Ex parte Seidel, 39 S.W.3d 221, 224 (Tex. Crim. App. 2001);
accord Miller v. State, 866 S.W.2d 243, 246 fn. 6 (Tex. Crim. App. 1993). But the authority
of a judge to preside in a court is a different question than the jurisdiction of the court
itself. See Miller v. State, 866 S.W.2d 243, 246 n.6 (Tex. Crim. App. 1993). "’[A] court is a
tribunal organized for the purpose of administering justice, while a judge is the officer
who presides over that tribunal[.]’" Miller, 866 at 246 n.6 (quoting 48A C.J.S. Judges §
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2a). "’The authority and powers of a judge are incident to, and grow out of, the
jurisdiction of the court itself.’" Id. (quoting 48A C.J.S. Judges § 54). Lack of authority to
act in a particular manner may render the judgment either void or voidable depending
on the type of the error. Ex parte Seidel, 39 S.W.3d 221, 224 (Tex. Crim. App. 2001).
Errors involving statutory procedure are merely voidable and require an objection to
preserve error. See id., 39 S.W.3d at 225; Davis v. State, 956 S.W.2d 555, 559 (Tex. Crim.
App. 1997); see also TEX. R. APP. P. 33.1.
Colomb asserts an alleged error involving statutory procedure. Thus, he was
required to object to Judge Harris presiding over his trial. Because he did not object, the
alleged error is not preserved. Colomb’s first issue is overruled.
Self-Respresentation
Colomb wanted to represent himself during his trial. He now argues on appeal
that his decision to dispense with counsel was not made knowingly, intelligently, and
voluntarily with full understanding of the right to counsel and with proper
admonishments. He also complains that his court appointed counsel was never
relieved of her duty to represent him.
Law
The Sixth Amendment to the Constitution of the United States guarantees that
"[in] all criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defense." U.S. CONST. AMEND. VI; Williams v. State, 252
S.W.3d 353, 355 (Tex. Crim. App. 2008). It also includes the reciprocal right to self-
representation. Faretta v. California, 422 U.S. 806, 818, 95 S. Ct. 2525, 45 L. Ed. 2d 562
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(1975); Williams, 252 S.W.3d at 356. But the right to self-representation does not attach
until it has been clearly and unequivocally asserted. Funderburg v. State, 717 S.W.2d 637,
642 (Tex. Crim. App. 1986). Once the right is asserted, the trial judge must inform the
defendant about "the dangers and disadvantages of self-representation, so that the
record will establish that 'he knows what he is doing and his choice is made with eyes
open."' Faretta, 422 U.S. at 835 (quoting Adams v. United States, 317 U.S. 269, 279, 63 S. Ct.
236, 87 L. Ed. 268 (1942)).
Colomb primarily relies on Geeslin for a laundry list of inquiries that he believes
the court failed to make, and, his argument continues, because of that failure, Colomb
was not warned properly of the dangers and disadvantages of self-representation. See
Geeslin v. State, 600 S.W.2d 309 (Tex. Crim. App. 1980). However, that laundry list is no
longer required. Not long after Geeslin was issued, the Court of Criminal Appeals
distanced itself from Geeslin’s requirements. In Martin, the Court stated, “The Faretta
opinion simply cannot reasonably be read to require that a trial judge spread upon the
record all such information and data about an accused that might conceivably impugn
his decision to represent himself; rather, its approach is to provide awareness of
problems in the undertaking so that the decision is not lightly made.” Martin v. State,
630 S.W.2d 952, 954 n. 5 (Tex. Crim. App. 1982). See also Lambrect v. State, 681 S.W.2d
614, 615 n. 1 (Tex. Crim. App. 1984) (The Court in Martin “observed that prior decisions
of this Court which had iterated exacting ‘requisites’ for establishing a knowing waiver
of counsel, [e.g., Barbour v. State, 551 S.W.2d 371 (Tex.Cr[im].App. 1977); Goodman v.
State, 591 S.W.2d 498 (Tex.Cr[im].App. 1980); and Geeslin v. State, 600 S.W.2d 309
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(Tex.Cr[im].App. 1980)], had read Faretta incorrectly.”). Such an inquiry as Geeslin
demanded is unnecessary in cases where the record otherwise reflects a knowing
exercise of the right to self-representation. Blankenship v. State, 673 S.W.2d 578, 586 n. 1
(Tex. Crim. App. 1984) (Clinton, J., concurring).
Thus, when advising a defendant about the dangers and disadvantages of self-
representation, there is no litany for the trial court to use, “no formulaic questioning.”
Johnson v. State, 760 S.W.2d 277, 278 (Tex. Crim. App. 1988) (quoting Blankenship v. State,
673 S.W.2d 578, 583 (Tex. Crim. App. 1984)). Generally, the record must be sufficient for
the reviewing court to make an assessment that appellant knowingly exercised his right
to defend himself. Id. at 279. Admonishments should include an effort to ensure that
the defendant is aware of the practical disadvantages of representing himself. Id. The
defendant should be aware that there are technical rules of evidence and procedure and
that he will not be granted any special consideration solely because he asserted his pro
se rights. Id. But a trial judge has no duty to inquire into an accused's "age, education,
background or previous mental history in every instance where an accused expresses a
desire to represent himself[.]" Williams v. State, 252 S.W.3d 353, 356 (Tex. Crim. App.
2008) (quoting Goffney v. State, 843 S.W.2d 583, 584-85 (Tex. Crim. App. 1992)).
Facts
Sarah Keathley was initially appointed to represent Colomb. Over a month later,
Colomb wrote to the court expressing his desire to represent himself. The next month,
Colomb filed a motion to dismiss Sarah as his court appointed counsel. Four months
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after Sarah’s appointment, Steve Keathley1 filed a motion to withdraw as counsel for
Colomb. A hearing was held at which both Sarah and Colomb were present. At the
beginning of the hearing, the trial court acknowledged that a motion to withdraw was
filed by the Keathley law firm. After the trial court heard testimony from Sarah,
Colomb stated that he did not want the Keathleys to represent him. The motion to
withdraw was granted and specifically, the trial court told Sarah that she was “relieved
at this point….”
Colomb unequivocally, in writing and in open court, asserted that he wanted to
represent himself. After counsel was relieved, and at the same hearing, the trial court
noted that Colomb had been in the criminal justice system for a good while and had a
lot of knowledge about the criminal justice system. The indictment reflects that Colomb
had at least two prior convictions for theft and two prior felony convictions. The court
verified that Colomb had had an attorney on other cases over the years. The court
admonished Colomb that he had a right to an attorney whether he could afford one or
not and that the court would be willing to appoint an attorney if Colomb could not
afford an attorney. Colomb understood that if he wanted to represent himself, he
would be doing so openly, intentionally, knowingly, and willingly and that the court
would allow Colomb to represent himself as long as Colomb’s “eyes are wide open”
and Colomb knew what he was doing.
1 It was established at the hearing on the motion to withdraw that Steve Keathley, who is also an attorney,
is Sarah’s husband.
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Colomb again affirmed that he wanted to proceed without an attorney. He
understood the role of the prosecutor. He understood that the prosecutor could not
represent Colomb at the same time she represented the State. He understood that the
judge was not in a position to give Colomb any legal advice. He understood, to some
degree, the role of the jury, the burden of proof, and what a defense attorney would do
for him. Colomb agreed that he had at least a basic understanding of those things. The
court admonished Colomb that there were some inherent disadvantages of self-
representation and that he would not have anyone to sit with him and advise him about
evidence, proof and procedures, and “all those kinds of things that lawyers are trained
to know and understand.” Colomb stated that he understood this admonishment. The
court then asked, “[H]aving understood all those matters, [do] you still want to
represent yourself?” Colomb replied, “Yes, sir.” The trial court then allowed Colomb
to represent himself.
A month after the hearing, Colomb signed a form waiver of counsel which the
trial court approved. Further, on the day of trial, the court confirmed that Colomb had
asked for his court appointed counsel to be withdrawn. Also on the day of trial,
Colomb confirmed with the trial court that there was an approved waiver of counsel in
the file.
Application
Given these facts and circumstances, we find the record establishes that
Colomb’s decision to dispense with counsel was made knowingly, intelligently, and
voluntarily with full understanding of the right to counsel and with proper
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admonishments. And because Colomb waived his right to counsel, his complaint that
his appointed attorney was never officially relieved of her duties to represent him is
irrelevant. Colomb’s second and third issues are overruled.
Ineffective Assistance of Counsel
Colomb also claims that prior to the trial court allowing him to represent himself,
his counsel was ineffective because she attempted to transfer the responsibility of
representation to her husband and partner in the law firm and did not interview
Colomb or perform any tasks during the time from her appointment to the time of the
hearing on the motion to withdraw, which encompassed a little over four months.
To prove ineffective assistance of counsel, a defendant must show that: (1)
counsel's performance was deficient to the extent that counsel failed to function as the
"counsel" guaranteed by the Sixth Amendment and (2) that counsel's deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). To establish prejudice, a defendant must show
there is a reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different. Wiggins v. Smith, 539 U.S. 510, 534, 123 S.
Ct. 2527, 156 L. Ed. 2d 471 (2003).
Colomb makes assumptions about what counsel may or may not have done
using statements in his own motions and generalized testimony by counsel at the
hearing on the motion to withdraw. But this record, however, is undeveloped and
cannot adequately reflect the motives behind counsel's alleged actions and inactions.
See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Counsel should
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ordinarily be afforded an opportunity to explain her actions. Id. Absent such an
opportunity, an appellate court should not find deficient performance unless the
challenged conduct was "so outrageous that no competent attorney would have
engaged in it." Id. (citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).
Just less than two months after counsel was appointed, Colomb asserted his right
to self-representation. Further, there is nothing in this record to show what was done
by counsel and whether counsel tried to transfer responsibility of representation to her
husband. Accordingly, based on this record we cannot find deficient performance by
counsel. Colomb’s fourth issue is overruled.
Continuance
Colomb asserts that the trial court erred in failing to grant his request for a
continuance on the day of trial. A criminal action may be continued on the defendant's
written and sworn motion showing sufficient cause. TEX. CODE CRIM. PROC. ANN. arts.
29.03, 29.08 (Vernon 2006). An unsworn, oral motion for continuance presents nothing
for appellate review. Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999);
Matamoros v. State, 901 S.W.2d 470, 478 (Tex. Crim. App. 1995); Potter v. State, 74 S.W.3d
105, 110 (Tex. App.--Waco 2002, no pet.); see TEX. R. APP. P. 33.1(a).
Colomb made an unsworn, oral motion for continuance to the trial court on the
day of trial. Accordingly, nothing is presented for review; and Colomb’s fifth issue is
overruled.
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CONCLUSION
Having overruled each of Colomb’s issues on appeal, we affirm the trial court’s
judgment of conviction.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed April 29, 2009
Do not publish
[CR25]
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