## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00057

- CR

JACKIE LYNN ELLIOTT , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the County Court at Law Van Zandt County, Texas Trial Court No. CR21

- 00323

Before Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice Rambin2 

### ME MORANDUM OPINION

This case concerns an alleged day

- of

- trial change from reta ined counsel to counsel the
defendant claims (on appeal) 1 to ha ve n either known nor wanted

. At issue is what must be done to preserv e a complaint that the change in counsel violated the defendant’s consti tutional right to
counsel of choice. This case also concerns the distin ction between direct appeal and an
ap pl ication for habe as corpu s based on ineffective assistance of counsel. Here, we are on direct appeal . The record shows that a new attorney appeared on the mo rning of trial and that Jackie Lynn Elliott did no t object to the new attorney’s appear ance. Beyo nd tha t, the record befo re us is largely silent on the salient issue of how the appearance of new counsel came about

. Therefore, on this record, we find that no error was preserved

. We affirm the tria l cou rt’s judgment.
I. Background
O n Septemb er 24, 2021, a Van Zandt County gran d jury indicted Elliott for possession of less than one gram of methamphetamine , which , standing alone , woul d be a st ate jail felony
under Section 481 .115(b) of the Texas Health and S afety Code punishable under Secti on 1 2. 35
of the Texas Penal Code. See T EX

. H EALTH & S AFETY C ODE A NN

. § 481.115(b) (Supp.) ; T EX

. P ENAL C OD E A NN

. § 12.35. However, the indictment alleged tw o prior convictions on state jai l felony ch a rges of possession of a controlled substance, making he r 2 0 21 charges subject to punishment as a third

- degree felony. See T EX

. P ENAL C OD E A NN

. § 12.425. Consequently, the

1 Originally a p pealed to t he T welft h C o urt of Appeals, this case was transferred to this Court by t he Texas Sup reme Court pursuant to its docket equalization efforts. See T EX . G OV ’ T C ODE A NN . § 73. 001. We are unawa re o f an y confli ct bet ween precedent of the Twelfth Co u rt of Appea ls and th a t o f t his Court on any relevant i ssue. See T EX . R. A PP . P. 41. 3.3

punishment range of the indicted offens e in this case was a f ine of up to $10,000

. 0 0 and imprisonment fro m two to ten years. See T EX

. P EN AL C OD E A NN

. § 12.34. On November 30, 2 021, the trial court 2 found Elliott to be indigent and appoint ed Kasey Chester to represent her

. On September 12, 20 22, Bil l Knox filed a request to appear as attorney
of record. On Sept ember 16, 2022 , Chester moved t o w ithdraw. On September 22, 2022, t he trial court granted Ch ester’s motion to withdraw. On February 13, 2023, the trial cou rt called the case to trial. But it wa s not Knox who

ann o u nced ready for Elliott. It was Don na Winfield. There is no prior refer en ce to Winf ield in
the record. For example, there was no written motion to withdraw by Knox nor was there a
written motion for entry of appearan ce by W infield. No r do oral motions to that effect appear in
the court r eporter’s r ecord of the trial.
Elliott co n c edes that , at no point did she object to the appearance of Winfield

. There is nothing in either the clerk’s record or the reporter’ s record to sho w that a ruling on the sub ject was sought from, or made by, the trial cour t. What the record does show is th at Knox and
Winfield share the sam e office suite in Dallas but have different phone numbers

. On February 14, 2023, the jury convicted Elliott of t he indicted offense. Purs uant to
El liott’s election to have punis hmen t assessed by the jury, 3 the jury ret u r ned a verdict that Elliott

2 At this point in the proceedings, the trial court was the 294th Judic ial District Court of Van Zandt County. On De ce mber 1 9, 202 2, the 294th Judicial D istrict Court a s signed the case to t h e C oun ty Court at Law of Van Zand t County

.
3 Elliott ’ s punishm ent election was a handwritten document that bears Elliott’s signature and that , Elliott concedes , was prepared by Winf

ie l d.4

sho uld be fined $ 3,000 .00 and imprison ed for three years. That same day, the trial court entere d judgment on th e verd i c t

. On appeal, Elli ott urge s , as her sole issue , that she was denied he r Sixth Amendment right
to retained c ou nsel of her choice because the trial court “allowed” Winfield to represent her at
trial. Elliott contends that this am ounts to t he trial cou r t “ su a sponte substitut[ing]” n ew defense

cou nsel “on the day of tria l.” E lliott contends that this was a “ de f ac to substitution ” by the trial

court that is subject to a strong presumption against any waiver by Elli ott of h er right to retained
counsel of choic e. Elliott contends that “ this had the effect of depriving her o f her right to [ retained ] counsel ” of choi ce
. Elliott further contends th at this is a “ structural error” that requires reversal without conducting an analysis of whether error actuall y cause d harm. Elliott
acknowled ges that this is a direct a ppeal, not an app lication for habeas corp us alleging
i ne ffective assistan ce of counsel

. Consistent with her contention that she need not show harm i n this direct appeal, Elliott states that “the actual effectiv eness of the subst ituted counsel is inappos ite to thi s claim.” Nonetheless, in this direct appeal, E lliott proceeds to question th e course of the trial, to assert that Knox “abandoned his o bligation [ s ] ” to her, and to cast

as p ersions at the effect ive ness of Winfield

. Elli ott makes contentions unsupported in t he rec ord about her understandings with Kno x, her lack thereof with Winfiel d, and her own internal thought processes at th e time Winf ield appeare d. Ellio t t points to appointed counsel case s t o urge that the trial cour t had a duty to act regarding the appearance of new ly retained counsel (or
more p re cisely, a suitemate of retaine d counsel that defendant clai ms she d id n o t desire , but to5

whom d efendant did no t obj e ct). Elliott also seeks to exc use her failure to object based on cases holding that no o bjection is needed to preserve an ineffective ass is tance of counsel claim.
II. Appli cable Law
A n element of the S ixth Amendment right to counse l “is the right of a d efendant who does not require appoi nted counsel to choose who will represent him.” Unite d States v.
Gonz alez

- Lopez , 548 U.S. 140, 144 (2006) ; s ee Gonzalez v. State , 117 S.W.3 d 831, 836

– 37 (Tex. Crim. App . 2003) (“ The right to assista nce of counsel contem p late s the defendant ’ s right to
obta in assistance from counsel of the defendant ’ s choosing

. ”). 4
However, t his “right to counsel of choice” is n ot absolute, but rather “ is circu mscribed in several importan t respects. ” Gonzalez

- Lopez , 548 U.S. at 144 ( quo t ing Wheat v. United States , 486 U.S. 153, 159 (1988) ) ; Gonzalez , 117 S.W.3d at 837 (“ [T] he defendant’s righ t to counsel of
choice is not absolut e
. ”). Therefore, it is only when a trial court “ unreasonab ly or arbitrarily
interferes with the defendant’s r i ght to choose cou nsel ” that the trial court’s “ actions rise to t he
level of a constitutional violation .” Go nz alez , 117 S.W.3d at 837 (emphasis a dd ed). For example, trial courts have “wide latitude in ba lancing the right to counsel of choice against the n eeds of fairness and against the demand s of it s calendar .” Gonza lez

- Lopez , 548 U.S.

at 152 ( citations omitte d). One balancing issue that comes u p with some regularity is when
pa rties want to be represe nted by an attorney who is also a fact witness in t h e case, a situation
that could cause con flicts of in terests and th at also confuse or improperly sway a jury. See

4 Though , here , Elliott states that she retain e d c oun sel, a retaine r f e e i s not re quired for the right to attach

. “ [T] he S ixth Amendmen t guarantees a defendant the r ight to be r epr esented by an otherwise qualif ied attorney whom that defendant can afford to hire, or who is willing to represent the def e ndant even tho ugh he is wit ho ut f un ds. ” Go nzalez

- Lopez , 5 48 U.S. at 144 (quoting Caplin & Drysdale, Chartered v . Unite d States , 49 1 U .S. 617, 624

– 625 (1989) )

.6

Gonzalez , 117 S.W.3d at 843. Ano th er balancing issue arises “when a prosecutor swi t ches sides
to become defense counsel

. ” In re Meza , 611 S.W.3d 383, 392 (Tex. Crim. App. 2020) (or ig. proceeding)

. Other ex am ples ( citing either or both of Gonzalez

- Lo pez and Gonzalez ) are plentiful enoug h that we perceive no n ecessity t o derive a govern ing rule from other bodies of law, such as d ec ision s regarding counsel appointed to indigent defend an ts , or decisions regardin g a habeas corpus application all eging ineff ective assistance of counsel. See, e .g
. , Bowen v.
Carnes , 343 S.W.3d 805, 808 (Tex. Crim. App. 2011) (orig. proceeding)

. As a re s ult, the question befor e t his Court is as stated in Gon zalez , whether th e trial

co urt’s actions unreasonably or arb itrarily in terfered with Elliott’s right to choo se her counsel.
See Gonza lez , 1 17 S.W.3d at 837

. But first , there is the question of error preservation. On this fron t, Gonz alez states ,

“ [ T] he tri al court has an independent duty to e n sure crimin al defendants receive a fair trial that
does not c ont ravene the Sixth Amend ment’s central aim of providin g effecti ve assistance of
counsel once issues ar e raised that indicate a concern .” Id. at 840 (emphas is added) ( citing
Wheat , 486 U. S. at 1 61) ; see In re Meza , 611 S.W.3d at 392 (“In Bowen , we applie d t his maxim

to state cou rts.” ( cit ing B owen , 343 S.W.3d at 816 ) )

. T he parties cite to no “independent du ty” case applying to this specific f actual situati on.
N or, more broadly, do the parties cite to any “independent d uty ” case where no party in the trial court lodged an object ion. A rea ding of G onzal ez that would not require an o bjection would be
divorced from Wheat , the cas e w hich Gonzalez cited on this subject. Id. at 840 ( cit ing Wheat , 486 U.S. at 160 )

. Th e fou ndational case of Wheat expressly required an objection to tri gger t he7

duty of the trial cou rt

. “ [T] he trial courts, when ale rted by objection from one of the par tie s, have an independen t duty to ensu re that criminal d e fendants receive a trial that is f ai r and does
not contravene the Sixth Amendment. ” Wheat v. Unit ed Sta tes , 486 U .S. 153, 161 (1988) (emphasis added). 5
We , th ere fore , find that, on the Gonzalez ques tio n of whether the tria l court’s actions unreasonably o r arbit rar ily interfered with Elli o tt’s righ t to choose her own counsel , a Wheat objection was requ ired t o com plain of a breach of duty by the trial court

. III. Analy sis The record shows no objection by E lliott when Winfield appea red on her b ehalf. 6 Since
Wheat (and Go n zalez when r ea d in li gh t of Wheat ) make s an objection a prerequisi te to lodging a compl a i nt aga inst the t rial court , Elliott’s failure to object means that she failed to preserve er ror
. We affirm the trial court’s judgment

.

Jeff Rambin Just ice
Date Submitted: Octobe r 20, 2023 Date De ci de d: November 2 , 20 23
Do Not Publish

5 I n Wheat , there was also an ob jection in the trial court. Wheat , 486 U.S. at 155

.
6 Arguabl y, this i s not even a c hoi c e
- of

- counsel case. As far as can be seen on this record, Elliott ’ s preferred couns el , Knox , never with drew

. For reasons not sh own in th e rec ord , h e did not attend trial.