Colomb v. State, No. 10-08-00039-CR (Tex. App. 4/29/2009)
| Decision Date | 29 April 2009 |
| Docket Number | No. 10-08-00039-CR.,10-08-00039-CR. |
| Parties | ELTON PAUL COLOMB, JR., Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 66th District Court, Hill County, Texas, Trial Court No. 34,977.
Affirmed.
Before Cheif Justice GRAY, Justice REYNA, and, Justice DAVIS.
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.
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.
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 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 § 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.
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.
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 (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) ]). 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)).
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 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,...
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