Todd J. Colson v. State

• Court: Court of Appeals of Texas
• Decided: January 9, 2007
• Docket: 14-05-00429-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed January 9, 2007

Affirmed and Memorandum Opinion filed January 9, 2007.

In The

Fourteenth Court of Appeals

____________

NOS. 14-05-00428-CR

         14-05-00429-CR

TODD J. COLSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause Nos. 974,352 & 974,355

M E M O R A N D U M   O P I N I O N

A jury convicted appellant Todd Colson of two instances of official oppression and the trial court assessed punishment for each offense at sixty days= confinement in the Harris County Jail.  In three issues, Colson challenges the effectiveness of his counsel at the guilt/innocence and punishment phases of trial and contends the trial court erred by not correcting Colson=s mistaken belief that accepting responsibility during the punishment phase would jeopardize his appeal.  We affirm.

I.  Factual and Procedural History

At about 2:00 p.m. on October 4, 2003, a Ashank@, or sharpened piece of metal, was found during a random search of cell block E-4 of the Harris County jail facility commonly referred to as ALittle Baker.@  Deputy Todd J. Colson participated in the investigation related to this discovery, and was subsequently charged with official oppression for the conduct described below.

After the shank was discovered, the inmates of cell block E-4 were questioned, but revealed no information.  They were subsequently ordered to line up facing the walls of the lower floor of the cell block and to strip.  Body searches were conducted, which required the inmates to raise their feet, squat down, and rub their fingers through their hair.  Inmate Kehinde George later testified that during this search, Colson kicked him on the ankle causing George to fall.  According to George, Colson then dragged him to the center of the room and taunted him before striking him on the head.  Detention Officer Courtney Atkinson and inmate Rodney Kibble also witnessed the blow.  Atkinson testified that Colson Aslapped@ George, and Kibble testified that Colson Abackhanded@ George.

Kibble purportedly failed to keep his hands behind his back during the search as instructed.  After Colson pointed this out to lower-ranking detention officers^[1] who took no action, Colson kicked Kibble in the lower back.  Kibble lost his balance, but stopped himself from falling by catching himself against a cell block wall.

Colson next told Detention Officer Courtney Atkinson to accompany him to the upper level of the cell block.  Inmates were sent to the upper level individually and ordered to empty their lockers.  One inmate, Luscious Hunt, had dominoes in his locker that belonged to the county, and were therefore considered contraband.  Colson called Detention Officer DeLuna^[2] to come upstairs and Colson asked Hunt whether he would rather be hit or written up.  Hunt testified that he chose to be written up, but according to the testimony of both Hunt and Atkinson, DeLuna and Colson punched Hunt in the chest and back until he fell to the floor.  Atkinson further testified that Colson and DeLuna wrapped strips of toweling around their hands before striking Hunt to avoid leaving fingerprints or Aknuckle prints.@  Hunt was then told to return to the lower level.

At some point, inmate Joe Lewis was sent upstairs.  After Colson stated that Lewis had an attitude problem, Lewis made a sucking noise with his teeth, and Colson punched Lewis in the jaw.  Lewis remained standing and facing Colson, who taunted him and punched him in the jaw a second time, knocking him to the floor.  Lewis was then instructed to return to the lower level of the cell block.  Inmate Anthony Ramos also testified that after he was brought upstairs, Colson punched him twice in the lower chest or upper stomach.

Atkinson was not scheduled to work for a few days after these events, but when he returned to work, Colson told him, AYou don=t know nothing, you didn=t see anything.@ Colson gave Atkinson a piece of paper with instructions for him to Aplead the Fifth [Amendment].@^[3]  Atkinson further testified that Colson approached him again a few days later and told him Ayou don=t know nothing, you didn=t see anything.@

Following an internal investigation, Colson=s employment was terminated in late November 2003.  In January 2004, Colson was indicted for official oppression regarding his treatment of inmates George, Hunt, Lewis, and Ramos.  The case was tried to a jury in February 2005 and Colson testified at the punishment phase only.  Colson was found guilty with respect to Hunt and Lewis and elected to have the trial court assess his punishment.

When Colson testified at the punishment phase of his trial, the following exchange took place:

Trial Court:   Let me change topics and ask you a question.  I am concerned from the

          comments in the presentence report about your position.  Do you accept

          the jury=s verdict?

Colson:        Ma=am I respect their verdict

Trial Court:   Do you take responsibility for the incidents that you=ve been convicted of?

Colson:        I invoke my Fifth Amendment right on that.

Trial Court:   You don=t have a Fifth Amendment privilege.  You=re on the witness stand.

Colson:        I plan to appeal the decision.  I know I was doing my job, your Honor.

Trial Court:   So, do you take responsibility for assaulting those two inmates?

Colson:        I never assaulted any inmates, your Honor.

Trial Court:   Do you take responsibility for assaulting those two inmates B yes or no?

Colson:        No, ma=am.  I do not take responsibility for something I didn=t do.

Trial Court:   Okay.  You can step down.

The trial court assessed punishment for each offense at sixty days= confinement in the Harris County Jail.  Colson filed a motion for new trial that was heard on affidavits and without live testimony.  In his motion, Colson argued that he did not receive effective assistance of counsel because his attorney, Rhonda Wills, did not honor his desire to testify at the guilt/innocence stage of trial.  In support of this contention, Colson attached a page of handwritten notes he and Wills had written during the trial.  In his affidavit, Colson claimed the content of the notes show that he wanted to testify at the guilt/innocence stage of his trial but Wills refused to call him.  Colson also submitted affidavits from his sister and his girlfriend, each of whom attested that she heard Wills say she Adidn=t let@ Colson testify during the guilt/innocence phase of trial.  In contrast, Wills stated in her affidavit that she asked Colson in writing if he wanted her to call him to testify, and he responded by whispering Aif you think so.@  According to Wills, her handwritten note, AI=m NOT going to call you@ was written in response to his comment.  The trial court denied Colson=s motion for new trial, and this appeal ensued.

II.  Issues Presented

In his first issue, Colson contends his trial counsel was ineffective because she did not

allow him to testify at the guilt/innocence stage of his trial.  In his second issue, Colson contends the trial court judge should have corrected his mistaken understanding of the effect that accepting responsibility for the crimes would have had on his planned appeal.  In his third issue, Colson contends his trial counsel was ineffective for not correcting this mistaken understanding.

 III.  Standard of Review

Ineffective assistance of counsel is reviewed under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).  Under Strickland, an appellant must prove by a preponderance of the evidence that counsel=s representation fell below the objective standard of prevailing professional norms, and there is a reasonable probability that, but for counsel=s deficiency, the result of the proceeding would have been different.  Id. at 687, 104 S. Ct. at 2064.  An appellant=s failure to satisfy one prong makes it unnecessary for a court to consider the other prong.  Id. at 697, 104 S. Ct. at 2069.

Claims of ineffective assistance of counsel are commonly raised in a motion for new trial, as occurred in this case.  In these circumstances, we analyze the appellant=s ineffective assistance of counsel issue as a challenge to the denial of his motion for new trial.  Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004).  We apply a deferential rather than de novo standard of review of a trial court=s determination of historical facts when that determination is based, as here, solely upon affidavits.  Id. at 210.  Thus, Aappellate courts must defer to any reasonable implied factual findings that the trial court might have made in denying a motion for new trial.@  Id. at 211.  This standard applies regardless of whether the affidavits are controverted.  Id. at 210.

IV.  Analysis

A.      Trial Court Did Not Abuse Its Discretion by Denying Colson=s Motion for New Trial

Both on appeal and in his motion for new trial, Colson argues that his trial counsel was ineffective because she refused to call him as a witness.  According to Colson, her actions prevented him from testifying about the threats he perceived from the inmates he struck.  In support of his motion for new trial, Colson presented his own affidavit in which he testified that Wills asked him during the guilt/innocence phase of trial whether he wanted to testify, and that he responded by writing AI have no choice.@  However, Wills stated in her affidavit that Colson chose to follow her advice during the guilt/innocence phase of trial and refrain from testifying.  Specifically, Wills stated:

At all times Defendant understood that he had the right to testify at his trial and that the exercise of that right was his decision.  I discussed this specific issue with Defendant on various occasions.  Moreover, Defendant was a deputy sheriff and he told me many times that he had received training regarding a defendant=s constitutional rights in a criminal matter as part of his training as an officer.  I abided by Defendant=s decision at all times to exercise his right to testify.  I advised Defendant against testifying during the trial of this matter both during the guilt/innocence phase, as well as the sentencing phase.  Mr. Colson followed my advice and chose to not testify during the guilt/innocence phase, but decided against following my advice and testified during the sentencing phase.

Although the affidavits of Colson=s sister and his girlfriend include statements that each heard Wills say she didn=t Alet@ Colson testify at the guilt/innocence phase of trial, Wills stated that she A[did] not recall@ telling either that she Adidn=t let [Colson] testify at his trial@.  Additionally, Wills explained the majority of the handwritten notes in a manner consistent with her position that she honored Colson=s wishes.^[4]

Reviewing these facts under the applicable standard, we conclude that Wills=s affidavit provided a reasonable basis for the trial court=s ruling.^[5]  Moreover, any allegation of ineffectiveness must be firmly founded in the record, which must affirmatively demonstrate the alleged ineffectiveness.  McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App.1996) (en banc), cert. denied, 519 U.S. 1119, 117 S. Ct. 966, 136 L. Ed. 2d 851 (1997), overruled on other grounds, Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998) (en banc), cert. denied, 526 U.S. 1070, 119 S. Ct. 1466, 143 L. Ed. 2d 550 (1999).  On the record before us, we cannot conclude the trial court abused its discretion by denying Colson=s motion for new trial.  Accordingly, we overrule Colson=s first issue.

B.      Trial Court Had No Duty to Correct Colson=s Alleged Misunderstanding of the Law

Colson elected to testify during the punishment phase of trial.  During his testimony, the trial court asked, Ado you take responsibility for assaulting those two inmates?@  In response, Colson first attempted to invoke his Fifth Amendment privilege against self-incrimination.  After the trial court informed him that the privilege did not apply, Colson stated, AI plan to appeal the decision.  I know I was doing my job, your Honor.@  When again asked whether he accepted responsibility, Colson replied AI never assaulted any inmates, your Honor.@  After the trial court asked the question a third time and pressed Colson for a Ayes or no@ answer, and Colson replied, ANo, ma=am.  I do not take responsibility for something I didn=t do.@ 

On appeal, Colson=s counsel contends that A[i]t appears that the appellant believed he would be jeopardizing his appeal if he accepted responsibility.  Actually that was not the case, but the trial court did not correct [Colson=s] incorrect impression.@  He argues that the trial court Aor even the prosecutor should have corrected [Colson=s] legal mistake when his own attorney was failing to do so.@  We disagree with both the premise and the conclusion.

First, Colson argues that his testimony was the result of his misunderstanding that he would jeopardize his appeal by accepting responsibility for the acts for which he was convicted.^[6]  This argument is not supported by the record, but is based on the inference that Colson=s statement, AI plan to appeal the decision@ is the motive for his refusal to accept responsibility.  However, Colson later gave a more direct statement of why he refused to take responsibility when he said, AI do not take responsibility for something I didn=t do.@ (emphasis added).  The argument that Colson would have testified differently if he had known that he would not waive an unspecified error by accepting responsibility is mere speculation. 

We further disagree with Colson=s conclusion that if his testimony was motivated by an unexpressed misunderstanding of the law, the trial court or the prosecutor had a duty to correct this misunderstanding.  However, as Colson has cited no authority in support of this proposition, this argument is waived.  Tex. R. App. P. 38.1(h).

C.      Counsel Was Not Ineffective at the Punishment Phase of Trial

In his third issue, Colson contends his trial counsel was ineffective at the punishment phase of trial because she did not correct his allegedly incorrect understanding of the law described above.  Unlike Colson=s first issue, this argument was not raised in a motion for new trial.  Accordingly, no evidence was developed in the trial court on this issue.

Confronted with a silent record, we must begin with the strong presumption that counsel=s actions were motivated by sound trial strategy, and we will not conclude the action was deficient unless it was so outrageous that no competent attorney would have engaged in such conduct.  Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001), cert. denied, 537 U.S. 1195, 123 S. Ct. 1351, 154 L. Ed. 2d 1030 (2003).  Here, we cannot agree that the failure of Colson=s trial counsel to interrupt her client=s testimony and correct his unexpressed misunderstanding of the law was Aoutrageous.@  First, as previously discussed, we do not agree that this alleged misunderstanding was apparent or should have been inferred by those who heard Colson=s testimony.  In addition, Wills had already advised Colson not to testify, and he chose to disregard her counsel.  The record does not disclose the reasons for her advice or his decision; thus, we cannot say that he had not been appropriately  advised prior to testifying.  Moreover, even if Wills inferred that Colson=s failure to accept responsibility was a misguided attempt to preserve error and attempted to intervene, the trial court was not obligated to interrupt Colson=s testimony to permit Wills to again advise her client.  Even if permitted, it is perhaps equally likely that such an interruption and revision of Colson=s former testimony would seem less than credible.  In sum, there is no basis on which to conclude that Wills=s failure to interrupt Colson=s testimony was erroneous or inconsistent with a sound trial strategy.

We overrule Colson=s third issue.  

V. Conclusion

We hold  the trial court did not abuse its discretion in overruling Colson=s motion for new trial.   We further hold that the trial court did not err by failing to advise Colson, sua sponte, that he could accept responsibility for his actions at the punishment phase of trial without waiving alleged errors in the guilt/innocence phase.  Lastly, we hold that Colson has failed to demonstrate  he was denied effective assistance of counsel.  Accordingly, we affirm the judgment of the trial court.        

/s/      Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed January 9, 2007.

Panel consists of Justices Anderson, Hudson, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  The cell block is staffed by, inter alia, sergeants, deputies, and jailers or detention officers.  According to testimony presented at trial, deputies receive at least four months of training, and jailers or detention officers receive approximately three weeks of training.

^[2]  No first name is stated in the record.

^[3]  Atkinson testified that he produced the paper during the internal investigation. 

^[4]  In explaining the handwritten note that reads, AI have no [undecipherable],@ Wills stated only that A[t]his appears to be a note in Defendant=s handwriting but I cannot decipher the last word.@  The appellant contends that the last word is Achoice.@  The remaining notes were explained as discussions about the evidence, or as notes that were supplemented by their whispered conversations.

^[5]  In his brief, Colson contends the trial court should have granted him a Alive@ hearing on his motion for new trial so he could cross-examine his trial counsel.  However, the Court of Criminal Appeals recently considered and rejected Aa per se rule that a trial court must hear live testimony whenever there is a factual dispute in affidavits and a party asks for testimony.@  Holden v. State, 201 S.W.3d 761, 764 (Tex. Crim. App. 2006). 

^[6]  Specifically, Colson asserts on appeal that he thought he would waive errors that occurred in the guilt/innocence phase of trial by accepting responsibility in the punishment phase, as described in DeGarmo v. State, 691 S.W.2d 657 (Tex. Crim. App. 1985) (en banc), cert. denied, 474 U.S. 973, 106 S. Ct. 337, 88 L. Ed. 2d 322 (1985).  Colson argues that he didn=t realize that DeGarmo had been overruled by Leday v. State, 983 S.W.2d 713 (Tex. Crim. App. 1998) (en banc) (abrogating DeGarmo in holding that an appellant=s admission of guilt in the punishment phase does not waive such claims of trial error as insufficient evidence; illegal search or seizure; failure to find proof beyond a reasonable doubt; certain violations of a defendant=s Fourth, Fifth, and Fourteenth Amendment rights; improper admission of privileged evidence; statements improperly obtained during custodial interrogation; admission of uncorroborated testimony of an accomplice or of an adult victim of a sexual offense who did not make an outcry within a year; and questions propounded to witnesses by jurors).  Colson does not allege that any of the errors enumerated in Leday occurred in the present case.