          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                         NO. 03-01-00352-CR


                                     Scotty Lynn Collum, Appellant

                                                      v.

                                      The State of Texas, Appellee



   FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
          NO. 00-293-K368, HONORABLE BURT CARNES, JUDGE PRESIDING




                Appellant Scotty Lynn Collum appeals his conviction for aggravated robbery. See Tex.

Pen. Code Ann. ' 29.03 (West 1994). Appellant asks this Court to reverse his conviction and render a

judgment of acquittal on two grounds: (1) he was subjected to double jeopardy because the trial of his case

proceeded with a second jury; and (2) the jury was improperly qualified by a county court at law judge, and

therefore violated his rights under article I, section 10 of the Texas Constitution. Alternatively, appellant

asks this Court to reverse his conviction and remand the case to the district court for a new trial because he

received ineffective assistance of counsel at trial. We will affirm the judgment of the trial court.


                                            BACKGROUND

                On March 24, 2000, Ralph Moreno, a loss prevention employee of the Target store in

Round Rock, observed appellant enter the store, remove the contents of several boxes of Suphedrine, and

conceal the contents on his person. After appellant left the store without paying for the Suphedrine, Moreno
followed appellant, approached him, identified himself as ATarget security,@ and instructed appellant to

return to the store. Appellant ignored Moreno and kept walking away. After Moreno made his request a

second time, appellant turned around, pulled a revolver from his pocket, pointed the gun at Moreno, and

shouted at him to get back. Moreno backed away, and appellant ran off. Twenty minutes later Round

Rock police apprehended appellant while he was attempting to hide in a nearby parking lot.

                 The State indicted appellant for aggravated robbery, a first degree felony offense. On

March 5, 2001, the day set for trial, appellant moved for a continuance, partly on the ground that a witness

he needed for his defense could not be located. The trial court delayed ruling on the motion and allowed

voir dire to continue while the State attempted to locate the witness. The district court stated:


        [T]he one concern in my mind is this witness the State is going to be looking for this
        afternoon. What I propose to do to cure that problem, if it is a problem, is to go through
        the voir dire this afternoon, not swear the jury in, have them come back Wednesday
        morning as opposed to tomorrow morning and see if we=ve located that witness this
        afternoon and make sure that you have an opportunity to visit with that witness tomorrow.


Two days later, the witness was still unavailable, and the district court granted appellant=s motion for

continuance. The court informed appellant that pursuant to the motion the jury would be dismissed and the

entire process repeated at a later date; the court dismissed the jury after clarifying on the record that the jury

had not been sworn. On May 21, 2001, another jury was selected, impaneled, and sworn. The jury found

appellant guilty of aggravated robbery and assessed his punishment at fifty years in the Institutional Division

of the Texas Department of Criminal Justice, as well as a $5,000 fine.


                                                DISCUSSION

                                                        2
Double Jeopardy

                In his first issue, appellant contends that jeopardy attached when the first jury was selected

and impaneled, even though the record clearly reflects that it was not sworn. In a jury trial, jeopardy

attaches when the jury is impaneled and sworn. See Crist v. Bretz, 437 U.S. 28, 29 (1978); see also Ex

parte Preston, 833 S.W.2d 515, 517 (Tex. Crim. App. 1992); McElwee v. State, 589 S.W.2d 455,

457-60 (Tex. Crim. App. 1979). Here, the record clearly reflects that the jury was not sworn. Appellant

argues, however, that in his case jeopardy attached as soon as the first jury was selected and impaneled.

                Appellant raises this issue for the first time on appeal. He failed to raise any objection at

trial and therefore failed to preserve his complaint for appeal. See Tex. R. App. P. 33.1(a). Even a claim

of double jeopardy must be preserved for appeal. See Gonzalez v. State, 8 S.W.3d 640, 642 (Tex. Crim.

App. 2000) (holding that double jeopardy issue must be raised at, or before, time charge is submitted to

jury). Appellant acknowledges that he did not raise the double jeopardy issue at trial, but relying on

Gonzales, contends that an exception to the general rule requiring preservation applies in the present case:


        [B]ecause of the fundamental nature of double jeopardy protections, a double jeopardy
        claim may be raised for the first time on appeal . . . when the undisputed facts show the
        double jeopardy violation is clearly apparent on the face of the record and when
        enforcement of usual rules of procedural default serves no legitimate state interests.


Id. at 643. Appellant contends that the record clearly reflects a double jeopardy violation because

jeopardy attached when the jury was selected and impaneled. But see McElwee, 589 S.W.2d at 457-60.

According to appellant, the oath requirement is a mere Amagic words@ formality, and is irrelevant to whether

his trial by the second jury violated his Fifth Amendment right.

                                                     3
                 This Court has emphasized that Athe critical question is not whether the defendant raised the

double jeopardy issue in the trial court, but whether the record before the appellate court clearly reflects a

double jeopardy violation.@ Duvall v. State, 59 S.W.3d 773, 777 (Tex. App.CAustin 2001, pet. ref=d).

In the present case, when the district court granted appellant=s motion for continuance and dismissed the first

jury, it made Aclear on the record that the jury has not been sworn.@ On the face of the record, it is not

clearly apparent that the district court subjected appellant to double jeopardy by dismissing an unsworn jury

pursuant to appellant=s motion for continuance. In addition, appellant failed to raise the double jeopardy

issue at trial. Therefore, appellant=s first issue is overruled.


Properly Qualified Jury

                 In his second issue, appellant contends that he was denied the right to trial by a Aproperly

qualified@ jury in violation of article I, section 10, of the Texas Constitution. See Tex. Const. art. I, ' 10.1

The record reflects that on May 18, 2001, the venire panel was summoned to the court and apparently

qualified by Judge Higginbotham.2 Three days later, Judge Carnes, the district court judge, presided during

the voir dire. According to appellant, Judge Higginbotham is a county court at law judge.3 Based on his


        1
          The Bill of Rights in the Texas Constitution recognizes the right to trial by jury: AIn all criminal
prosecutions the accused shall have a speedy public trial by an impartial jury.@ Tex. Const. art. I, '10.
        2
          Appellant infers Judge Higgenbotham=s involvement in jury qualification from the district court=s
statements to the venire panel prior to voir dire: A[F]irst of all, let me start out and ask: Did Judge
Higginbotham explain why we have you come in on Friday afternoons now and then reassigned out? It=s
simply a matter of space. . . . So we=ve had to go to Friday afternoon qualifications.@
        3
           Appellant requests that we take judicial notice that the Honorable Don Higginbotham is the
Presiding Judge of Williamson County Court at Law No. 3. We note that the State disputes the facts on

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interpretations of various statutory provisions of the Government Code, appellant argues that a panel of

prospective jurors Amust be examined by a district judge as to the legal qualifications of the panel members

to serve on a criminal jury.@ Appellant therefore requests that this Court set aside his conviction and

sentence and remand the case for a new trial on the merits.

                 Appellant acknowledges that he did not raise an objection on this issue at trial. See Tex. R.

App. P. 33.1(a). The failure to make a timely objection waives the right to challenge the jury=s

qualifications. See Mayo v. State, 4 S.W.3d 9, 12 (Tex. Crim. App. 1999). Section 62.102 of the

Government Code prescribes the qualifications for jurors. See Tex. Gov=t Code Ann. ' 62.102 (West

1998). These qualifications are not absolute and can be waived. See Mayo, 4 S.W.3d at 12. A[E]ven if an

absolutely disqualified juror sits on a criminal jury, reversal of the conviction is permitted only if the

defendant timely objected at trial or shows significant harm on appeal.@ Id.

                 Appellant does not contend that any of the jurors were unqualified for jury service.

However, his complaint that a county court at law judge was the improper judge to determine juror

qualifications amounts to the same contention. If appellant was concerned that Judge Higginbotham

improperly qualified the venire panel, he was required to object prior to the impaneling and swearing of the

jury. Id.; see also Andrews v. State, 359 So.2d 1172, 1175 (Ala. Crim. App. 1978) (AFailure to make a

timely objection waives the right to question the jury=s qualifications.@).



this point, arguing that while the record refers to AJudge Higginbotham,@ it makes no mention of that judge=s
court or regular judicial assignment.




                                                      5
                 Appellant invokes Rule 103(d) of the Texas Rules of Evidence, which states that in a

criminal case notice can be taken of Afundamental errors affecting substantial rights although they were not

brought to the attention of the court.@ Tex. R. Evid. 103(d).4 Appellant emphasizes that constitutional

provisions bear on the selection of a jury for the trial of a criminal case. However, Athe constitutional right to

trial by an impartial jury is not violated by every error in the selection of a jury.@ Jones v. State, 982

S.W.2d 386, 391 (Tex. Crim. App. 1998). A fundamental error is presented only where an Aappellant can

show he was denied a trial by a fair and impartial jury.@ Id. at 392. For example, where an appellant seeks

reversal for an erroneous sustaining of a challenge for cause, it must be shown that Athe jury, as finally

constituted, was biased or prejudiced; or that appellant was deprived of trial by an impartial jury.@ Id. at

391. Appellant has not contended, and has further failed to show, that the jury as finally constituted was not

an impartial jury.5 Accordingly, appellant was required to voice this objection to preserve the issue for

appeal. Appellant concedes he made no such objection; therefore, his issue is overruled.



        4
            We note that appellant=s issue does not involve an evidence question.
        5
           Appellant submits that a jury venire Aqualified@ by a county court at law judge Aconstitutes error
which defies any meaningful harm analysis@ precisely because there is Ano way of knowing whether qualified
veniremen were improperly excused, or if disqualified veniremen were improperly left on the panel.@ This
argument falls short of a showing that the jury was biased and prejudiced, so as to deprive appellant of his
right to an impartial jury.




                                                        6
Ineffective Assistance of Counsel

                In his third and final issue, appellant claims that his trial counsel=s failure to preserve his first

two issues for appellate review denied him the effective assistance of counsel, thereby violating his Sixth

Amendment right to a fair trial under the Federal Constitution. See Cuyler v. Sullivan, 446 U.S. 335, 343-

44 (1980); see also Gideon v. Wainwright, 372 U.S. 335, 339-40 (1963) (holding that right to counsel is

necessary to protect fundamental right to fair trial). The Supreme Court established a two prong test for

determining ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668, 687 (1984). In

Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986), Texas adopted the Strickland test. To

establish ineffective assistance of counsel, an appellant must first show counsel=s performance was deficient

to the extent that it fell below a minimum objective level of reasonableness under prevailing professional

norms. See Strickland, 466 U.S. at 687-88. Second, appellant must demonstrate that he was prejudiced

by such performance, so that the result of the trial would have been different had appellant=s counsel

properly objected. Id. at 691-92.

                Appellant emphasizes that any finding of ineffective assistance of counsel must be predicated

upon two prior determinations. First, we must determine that Ajeopardy attached with the selection of the

first jury, so that the trial in this case violated double jeopardy protections andCif properly challenged in

the trial courtCthe issue would have been preserved for appellate review.@ Second, we must determine

that Athe jury that ultimately heard this case was not properly constituted, so that the appellant would be

entitled to a new trial on the merits, had he challenged this jury in the trial court, thereby preserving the




                                                        7
issue for appellate review.@ We have overruled appellant=s first two issues, and he has not demonstrated

that his trial counsel rendered ineffective assistance.

                 A determination of whether appellant received ineffective assistance of counsel requires

some evidence regarding such matters as the defense counsel=s strategy, which can be developed at a

hearing on a motion for new trial; otherwise, we must presume the attorney made his decisions reasonably.

Thompson v. State, 9 S.W.3d 808, 814-15 (Tex. Crim. App. 1999). The record contains no hearing on

appellant=s motion for new trial and no record developing his claim of ineffectiveness of counsel. Based on

the record before us, appellant cannot overcome the strong presumption that his trial counsel provided

reasonable professional assistance. See Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993);

Flores v. State, 18 S.W.3d 796, 799-800 (Tex. App.CAustin 2000, no pet.).

                 Further, counsel does not render ineffective assistance of counsel by failing to preserve an

error that is not reversible. See Mathews v. State, 960 S.W.2d 750, 753 (Tex. App.CTyler 1997, no

pet.). Failure to object constitutes ineffective assistance of counsel only when, viewing the totality of the

circumstances, the error falls outside professional norms and prejudices the defense such that there is a

reasonable probability that the trial result would have been different but for the error. See Washington v.

State, 771 S.W.2d 537, 545 (Tex. Crim. App. 1989). Because the record clearly reflects that the first jury

was not sworn, and because appellant has failed to establish that any jurors were unqualified, we cannot say

that his counsel=s failure to object falls outside professional norms and prejudiced the defense such that the

outcome of the trial would have been different but for the error. See Strickland, 466 U.S. at 692.

Accordingly, we overrule appellant=s third issue.


                                                          8
                                              CONCLUSION

          Appellant=s issues on appeal are overruled. We therefore affirm the judgment of the district court.




                                                   __________________________________________

                                                   Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel

Affirmed

Filed: May 2, 2002

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