In the

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 Rambin
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MEMORANDUM OPINION

This case concerns an alleged day-of-trial change from retained counsel to counsel the 

defendant claims (on appeal)1to have neither known nor wanted. At issue is what must be done 

to preserve a complaint that the change in counsel violated the defendant’s constitutional right to 

counsel of choice. This case also concerns the distinction between direct appeal and an 

application for habeas corpus based on ineffective assistance of counsel. Here, we are on direct 

appeal. The record shows that a new attorney appeared on the morning of trial and that Jackie 

Lynn Elliott did not object to the new attorney’s appearance. Beyond that, the record before 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 trial court’s 

judgment. 

I. Background

On September 24, 2021, a Van Zandt County grand jury indicted Elliott for possession of 

less than one gram of methamphetamine, which, standing alone, would be a state jail felony 

under Section 481.115(b) of the Texas Health and Safety Code punishable under Section 12.35 

of the Texas Penal Code. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (Supp.); TEX.

PENAL CODE ANN. § 12.35. However, the indictment alleged two prior convictions on state jail 

felony charges of possession of a controlled substance, making her 2021 charges subject to 

punishment as a third-degree felony. See TEX. PENAL CODE ANN. § 12.425. Consequently, the 

1Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme 

Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We are unaware of any 

conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See TEX. R. 

APP. P. 41.3.
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punishment range of the indicted offense in this case was a fine of up to $10,000.00 and 

imprisonment from two to ten years. See TEX. PENAL CODE ANN. § 12.34. 

On November 30, 2021, the trial court2found Elliott to be indigent and appointed Kasey 

Chester to represent her. On September 12, 2022, Bill Knox filed a request to appear as attorney 

of record. On September 16, 2022, Chester moved to withdraw. On September 22, 2022, the 

trial court granted Chester’s motion to withdraw. 

On February 13, 2023, the trial court called the case to trial. But it was not Knox who 

announced ready for Elliott. It was Donna Winfield. There is no prior reference to Winfield in 

the record. For example, there was no written motion to withdraw by Knox nor was there a 

written motion for entry of appearance by Winfield. Nor do oral motions to that effect appear in 

the court reporter’s record of the trial.

Elliott concedes 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 show that a ruling on the subject 

was sought from, or made by, the trial court. What the record does show is that Knox and 

Winfield share the same office suite in Dallas but have different phone numbers. 

On February 14, 2023, the jury convicted Elliott of the indicted offense. Pursuant to 

Elliott’s election to have punishment assessed by the jury,3the jury returned a verdict that Elliott 

2At this point in the proceedings, the trial court was the 294th Judicial District Court of Van Zandt County. On 

December 19, 2022, the 294th Judicial District Court assigned the case to the County Court at Law of Van Zandt 

County. 

3Elliott’s punishment election was a handwritten document that bears Elliott’s signature and that, Elliott concedes,

was prepared by Winfield. 
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should be fined $3,000.00 and imprisoned for three years. That same day, the trial court entered 

judgment on the verdict.

On appeal, Elliott urges, as her sole issue, that she was denied her Sixth Amendment right 

to retained counsel of her choice because the trial court “allowed” Winfield to represent her at 

trial. Elliott contends that this amounts to the trial court “sua sponte substitut[ing]” new defense 

counsel “on the day of trial.” Elliott contends that this was a “de facto substitution” by the trial 

court that is subject to a strong presumption against any waiver by Elliott of her right to retained 

counsel of choice. Elliott contends that “this had the effect of depriving her of her right to 

[retained] counsel” of choice. Elliott further contends that this is a “structural error” that requires 

reversal without conducting an analysis of whether error actually caused harm. Elliott 

acknowledges that this is a direct appeal, not an application for habeas corpus alleging 

ineffective assistance of counsel. Consistent with her contention that she need not show harm in 

this direct appeal, Elliott states that “the actual effectiveness of the substituted counsel is 

inapposite to this claim.” Nonetheless, in this direct appeal, Elliott proceeds to question the 

course of the trial, to assert that Knox “abandoned his obligation[s]” to her, and to cast 

aspersions at the effectiveness of Winfield. Elliott makes contentions unsupported in the record 

about her understandings with Knox, her lack thereof with Winfield, and her own internal 

thought processes at the time Winfield appeared. Elliott points to appointed counsel cases to 

urge that the trial court had a duty to act regarding the appearance of newly retained counsel (or 

more precisely, a suitemate of retained counsel that defendant claims she did not desire, but to 
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whom defendant did not object). Elliott also seeks to excuse her failure to object based on cases 

holding that no objection is needed to preserve an ineffective assistance of counsel claim. 

II. Applicable Law

An element of the Sixth Amendment right to counsel “is the right of a defendant who 

does not require appointed counsel to choose who will represent him.” United States v. 

Gonzalez-Lopez, 548 U.S. 140, 144 (2006); see Gonzalez v. State, 117 S.W.3d 831, 836–37 (Tex. 

Crim. App. 2003) (“The right to assistance of counsel contemplates the defendant’s right to 

obtain assistance from counsel of the defendant’s choosing.”).4

However, this “right to counsel of choice” is not absolute, but rather “is circumscribed in 

several important respects.” Gonzalez-Lopez, 548 U.S. at 144 (quoting Wheat v. United States, 

486 U.S. 153, 159 (1988)); Gonzalez, 117 S.W.3d at 837 (“[T]he defendant’s right to counsel of 

choice is not absolute.”). Therefore, it is only when a trial court “unreasonably or arbitrarily

interferes with the defendant’s right to choose counsel” that the trial court’s “actions rise to the 

level of a constitutional violation.” Gonzalez, 117 S.W.3d at 837 (emphasis added).

For example, trial courts have “wide latitude in balancing the right to counsel of choice 

against the needs of fairness and against the demands of its calendar.” Gonzalez-Lopez, 548 U.S. 

at 152 (citations omitted). One balancing issue that comes up with some regularity is when 

parties want to be represented by an attorney who is also a fact witness in the case, a situation 

that could cause conflicts of interests and that also confuse or improperly sway a jury. See 

4Though, here, Elliott states that she retained counsel, a retainer fee is not required for the right to attach. “[T]he 

Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that 

defendant can afford to hire, or who is willing to represent the defendant even though he is without funds.” 

Gonzalez-Lopez, 548 U.S. at 144 (quoting Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624–625

(1989)).
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Gonzalez, 117 S.W.3d at 843. Another balancing issue arises “when a prosecutor switches sides 

to become defense counsel.” In re Meza, 611 S.W.3d 383, 392 (Tex. Crim. App. 2020) (orig. 

proceeding). Other examples (citing either or both of Gonzalez-Lopez and Gonzalez) are 

plentiful enough that we perceive no necessity to derive a governing rule from other bodies of 

law, such as decisions regarding counsel appointed to indigent defendants, or decisions regarding 

a habeas corpus application alleging ineffective assistance of counsel. See, e.g., Bowen v. 

Carnes, 343 S.W.3d 805, 808 (Tex. Crim. App. 2011) (orig. proceeding).

As a result, the question before this Court is as stated in Gonzalez, whether the trial 

court’s actions unreasonably or arbitrarily interfered with Elliott’s right to choose her counsel. 

See Gonzalez, 117 S.W.3d at 837.

But first, there is the question of error preservation. On this front, Gonzalez states,

“[T]he trial court has an independent duty to ensure criminal defendants receive a fair trial that 

does not contravene the Sixth Amendment’s central aim of providing effective assistance of 

counsel once issues are raised that indicate a concern.” Id. at 840 (emphasis added) (citing 

Wheat, 486 U.S. at 161); see In re Meza, 611 S.W.3d at 392 (“In Bowen, we applied this maxim 

to state courts.” (citing Bowen, 343 S.W.3d at 816)).

The parties cite to no “independent duty” case applying to this specific factual situation. 

Nor, more broadly, do the parties cite to any “independent duty” case where no party in the trial 

court lodged an objection. A reading of Gonzalez that would not require an objection would be 

divorced from Wheat, the case which Gonzalez cited on this subject. Id. at 840 (citing Wheat, 

486 U.S. at 160). The foundational case of Wheat expressly required an objection to trigger the 
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duty of the trial court. “[T]he trial courts, when alerted by objection from one of the parties, 

have an independent duty to ensure that criminal defendants receive a trial that is fair and does 

not contravene the Sixth Amendment.” Wheat v. United States, 486 U.S. 153, 161 (1988) 

(emphasis added).5

We, therefore, find that, on the Gonzalez question of whether the trial court’s actions 

unreasonably or arbitrarily interfered with Elliott’s right to choose her own counsel, a Wheat

objection was required to complain of a breach of duty by the trial court.

III. Analysis

The record shows no objection by Elliott when Winfield appeared on her behalf.6 Since 

Wheat (and Gonzalez when read in light of Wheat) makes an objection a prerequisite to lodging a

complaint against the trial court, Elliott’s failure to object means that she failed to preserve error.

We affirm the trial court’s judgment.

Jeff Rambin

Justice

Date Submitted: October 20, 2023

Date Decided: November 2, 2023

Do Not Publish

5

In Wheat, there was also an objection in the trial court. Wheat, 486 U.S. at 155.

6Arguably, this is not even a choice-of-counsel case. As far as can be seen on this record, Elliott’s preferred

counsel, Knox, never withdrew. For reasons not shown in the record, he did not attend trial.