Ex Parte James Harnage

IN THE TENTH COURT OF APPEALS No. 10-08-00415-CR Ex parte James Harnage From the 87th District Court Freestone County, Texas Trial Court No. 07-071-CR ABATEMENT ORDER James Harnage filed a pretrial habeas application and motion to dismiss his capital murder prosecution because of delay in excess of that permitted by the Interstate Agreement on Detainers Act. Following a hearing, the court orally announced its decision to deny Harnage’s habeas application and motion to dismiss. Harnage filed a notice of appeal, but the trial court has not signed a written order. The time to perfect an appeal in such a case runs from the date “the trial court enters an appealable order.” Tex. R. App. P. 26.2(a)(1). A court “enters an appealable order” in this context by signing a written order memorializing its ruling. See In re Johnston, 79 S.W.3d 195, 197-98 (Tex. App.—Texarkana 2002, orig. proceeding); State v. Shaw, 4 S.W.3d 875, 877-78 (Tex. App.—Dallas 1999, no pet.); State v. Acosta, 948 S.W.2d 555, 556 (Tex. App.—Waco, order) (per curiam), disp. on merits, 951 S.W.2d 291 (Tex. App.—Waco 1997, pet. ref’d). Because there is no written order, Harnage’s notice of appeal is premature. See Tex. R. App. P. 27.1(b); Harrison v. Tex. Dep’t of Criminal Justice, 134 S.W.3d 490, 491 (Tex. App.—Waco 2004, order) (per curiam). Nevertheless, it appears that the trial court intended to render an appealable order. Therefore, we abate this cause to the trial court for further consideration. See Harrison, 134 S.W.3d at 492. If the court intended to render an appealable order, then it should sign and enter an appropriate written order to effectuate its intent. Id. In addition, we note that no certification of the defendant’s right of appeal is included in the clerk’s record. Rule of Appellate Procedure 25.2(a)(2) provides in pertinent part, “The trial court shall enter a certification of the defendant’s right of appeal each time it enters a judgment of guilt or other appealable order.” Tex. R. App. P. 25.2(a)(2) (emphasis added). Subsection (d) of the same rule then provides: The certification should be part of the record when notice is filed, but may be added by timely amendment or supplementation under this rule or Rule 34.5(c)(1) or Rule 37.1 or by order of the appellate court under Rule 34.5(c)(2). The appeal must be dismissed if a certification that shows the defendant has the right of appeal has not been made part of the record under these rules. Id. 25.2(d). Therefore, if the trial court intended to render an appealable order, then it must also sign and enter a certification of the defendant’s right of appeal. See 25.2(a)(2), (d), 34.5(c)(2). The trial court shall, within twenty-one days after the date of this Order: (1) conduct a hearing if necessary; (2) make and sign appropriate orders, findings of fact and conclusions of law, and a certification of the defendant’s right of appeal, if applicable; and (3) deliver any such signed documents to the trial court clerk. Id. The trial court clerk shall: (1) prepare a supplemental clerk’s record containing all orders, findings of fact and conclusions of law, and any certification of the defendant’s right of appeal which the trial court renders or makes; and (2) file the supplemental clerk’s record with the Clerk of this Court within thirty days after the date of this Order. Id. PER CURIAM Before Chief Justice Gray, Justice Reyna, and Justice Davis (Chief Justice Gray concurring in part and dissenting in part with note)* Appeal abated Order issued and filed February 11, 2009 Do not publish [CRPM] * (Chief Justice Gray concurs in part and dissents in part. A separate order will not issue. He notes, however, that due to an amendment in the language of the rule he does not believe a written and signed order is necessary to bring an appeal in this proceeding. He also notes, in passing, that historically trial courts render or sign orders and judgments and, if they are entered, they are entered in the record or minutes of the court by the clerk. He concurs in the need for a certification of the right to appeal.) 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 (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 (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 after Sarah’s appointment, Steve Keathley[1] 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. 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 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 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. 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] [1] It was established at the hearing on the motion to withdraw that Steve Keathley, who is also an attorney, is Sarah’s husband.