                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


  AARON CRAIG HINMAN,                              §
                                                                    No. 08-16-00226-CR
                        Appellant,                 §
                                                                      Appeal from the
  v.                                               §
                                                                    112th Judicial District
  THE STATE OF TEXAS,                              §
                                                                  of Pecos County, Texas
                        Appellee.                  §
                                                                   (TC# P-3601-112-CR)
                                                   §

                                           OPINION

       Aaron Craig Hinman appeals the trial court’s conviction of intoxication manslaughter and

injury to a child. In a single issue, Appellant contends the trial court erred in denying his motion

for continuance to retain counsel of his choice. We affirm.

                                         BACKGROUND

       On August 15, 2015, Appellant was arrested after he drove his truck into a family home,

killing a four-year-old child, and injuring another child. On September 2, 2015, attorney Frank

Lacy was appointed to represent Appellant. Appellant was indicted on October 21, 2015, with

five felony counts. Appellant posted bond on October 30, 2015 and was free on bond until his

conviction. On February 18, 2016, the trial court notified the parties the jury trial date was set for

May 23, 2016 at 9:00 a.m.
       On the day of trial at approximately 8:31 a.m., Appellant’s attorney filed a motion for

continuance so that Appellant could retain his counsel of choice. Appellant’s attorney explained

to the trial court he had just been informed that morning of Appellant’s desire to retain counsel of

his choosing. The trial court responded that Appellant had been indicted on October 21, 2015,

counsel had been appointed prior to the indictment, the trial date had been set at the February

hearing, and assured Appellant that his appointed attorney “is one of this Court’s better attorneys.”

Appellant testified regarding the motion for continuance. Appellant told the trial court he had not

yet hired anyone, but his family was seeing an attorney out of El Paso by the name of “Ken Starr”

that same day. When asked by the trial court how long his communication with this attorney had

been, Appellant responded his uncle had been in contact with the attorney because he is “the one

that has the financial means.” The trial court explained to Appellant that the fact that he waited

until “8:40 [a.m.] right before voir dire” to indicate his desire to hire a new attorney—over eight

months after counsel had been appointed to represent him—was insufficient because the trial date

had “been pending a while. Efforts have been made to try this today.” After asking whether

Appellant’s potential attorney was present and ready to proceed to trial, to which Appellant

responded “[n]o, your Honor,” the trial court denied Appellant’s motion for continuance.

       Before trial, the State abandoned counts two and three—a first degree felony of injury to a

child—and Appellant plead guilty to counts one and five—a second degree felony of intoxication

manslaughter and a State jail felony of injury to a child. Prior to resting its case, the State also

abandoned count four—a third degree felony of injury to a child. The jury found Appellant guilty

on counts one and five—a second degree felony of intoxication manslaughter and a state jail felony




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of injury to a child.1 This appeal followed.

                                                 DISCUSSION

                  Denial of Motion for Continuance to Retain Counsel of Choice

         In his sole issue for review, Appellant contends the trial court violated his Sixth

Amendment right to counsel and his Fourteenth Amendment right to due process by denying his

motion for continuance to retain counsel of his choice. We disagree.

                                              Standard of Review

         We review a trial court’s denial of motion for continuance to retain counsel of choice for

abuse of discretion. Greene v. State, 124 S.W.3d 789, 794 (Tex.App.--Houston [1st Dist.] 2003,

pet. ref’d). When determining whether a motion for continuance to retain counsel of choice

should be granted or denied, the trial court must weigh the following non-exclusive factors: (1)

the length of the delay requested; (2) whether other continuances were requested and whether they

were denied or granted; (3) the length of time in which the accused's counsel had to prepare for

trial; (4) whether another competent attorney was prepared to try the case; (5) the balanced

convenience or inconvenience to the witnesses, the opposing counsel, and the trial court; (6)

whether the delay is for legitimate or contrived reasons; (7) whether the case was complex or

simple; (8) whether a denial of the motion resulted in some identifiable harm to the defendant; and

(9) the quality of legal representation actually provided. Ex parte Windham, 634 S.W.2d 718,

720 (Tex.Crim.App. 1982). A trial court does not abuse its discretion when it reasonably balances

these factors and concludes that the “general interest in the prompt and efficient administration of

justice” outweighs the right to retain counsel of choice. Greene, 124 S.W.3d at 793, (quoting


1
 Appellant plead guilty to counts one and five immediately before trial began and the jury was instructed to find
Appellant guilty on those counts.
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Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir. 1978)). The trial court is afforded substantial

discretion and the ruling will not be reversed absent a showing of a clear abuse that deprived the

defendant of his right. United States v. Burton, 584 F.2d 485, 489, 492 (D.C. Cir. 1978).

                                             Analysis

       The Sixth and Fourteenth Amendments afford defendants the constitutional right to a

reasonable opportunity to secure counsel of his choosing. See Powell v. State of Alabama, 287

U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932). However, that right is not absolute and must

not “be manipulated so as to obstruct the orderly procedure in the courts or to interfere with the

fair administration of justice.” Webb v. State, 533 S.W.2d 780, 784 (Tex.Crim.App. 1976); see

also Rosales v. State, 841 S.W.2d 368, 374 (Tex.Crim.App. 1992)(citing Gandy, 569 F.2d at

1323);. Ultimately, the defendant carries the burden of proving he is entitled to a change of

counsel. Malcom v. State, 628 S.W.2d 790, 791 (Tex.Crim.App. 1982)(citing Webb, 533 S.W.2d

at 784 n.3).

       In James v. State, the defendant filed a motion for continuance to retain counsel of choice

on the day of trial because he did not “feel comfortable” with his appointed attorney. 506 S.W.3d

560, 564 (Tex.App.--Houston [1st Dist.] 2016, no pet.). The trial setting had been scheduled for

over three months and the defendant had been in jail for nearly six months. Id. The defendant

told the court that his family had acquired funds to retain an attorney whom they would be meeting

with that same day; the defendant knew “for sure that they’re going to hire him,” and asked the

court for “a little bit of time” to retain that attorney. Id. The court applied the Windham factors

and concluded that most of the factors favored the denial of his motion for continuance. Id., at

565.


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       The present case is analogous to James because Appellant also waited until the day of trial

to file a motion for continuance to retain counsel of choice. Appellant was appointed an attorney

over eight months prior to the day of trial, which was enough time to secure an attorney of his

choosing. Like James, the trial setting had been scheduled over three months prior to the set trial

date. Appellant posted bond over six months prior to the trial date; unlike in James where the

court denied the defendant’s motion for continuance despite having been incarcerated for nearly

six months. Like James, Appellant also testified that his family was meeting that same day with

an attorney. However, unlike Appellant, the defendant in James was certain that a specific

attorney would be hired and asked the court for a small amount of time, which the court still found

to be insufficient because the request was made the day of trial. When asked by the court whether

he had hired an attorney, Appellant responded, “[n]ot that I know of,” and “I believe they’re

speaking to Ken Starr. I believe that’s his name[.]” Appellant clearly had not yet retained an

attorney and was uncertain as to whether the named attorney his family was supposedly going to

meet with would even be hired. Appellant’s lack of certainty was also made apparent to the court

by the indefinite time requested to retain an attorney. The court in James concluded that most of

the factors favored the denial of defendant’s motion for continuance, “particularly the timing of

the request (morning of trial) and the absence of specific complaints about the appointed lawyer

(who was prepared to try the case that day) or specific reasons for substituting a new lawyer (who

had not yet been retained).” James, 506 S.W.3d at 565.

       The majority of the Windham factors as applied to this case clearly support the trial court’s

ruling. First, Appellant’s motion for continuance failed to specify the length of delay requested.

Appellant essentially requested an indefinite length of delay, which would surely “obstruct the


                                                5
orderly procedure in the courts or interfere with the fair administration of justice.” Webb, 533

S.W.2d at 784.     Second, the record reflects no prior continuances were requested.           Third,

Appellant’s attorney was appointed prior to the indictment and had over seven months to prepare

for trial. Moreover, Appellant and Appellant’s attorney were aware of the trial date three months

prior to trial. Pursuant to the Texas Code of Criminal Procedure, “appointed counsel is entitled

to 10 days to prepare for a proceeding . . . .” TEX.CODE CRIM.PROC.ANN. art. 1.051(e)(West

Supp. 2017). Thus, Appellant’s attorney had an abundance of time to prepare for trial. Fourth,

another competent attorney was not prepared to try the case. Appellant testified about the

possibility of hiring another attorney, but had not yet retained one. Fifth, the record does not

contain evidence to determine the balanced convenience or inconvenience to the witnesses, the

opposing counsel, and the trial court. Sixth, the record does not contain evidence proving whether

the requested delay was for legitimate or contrived reasons. Seventh, although the charges against

Appellant were serious, the record does not appear to be particularly complex because the evidence

against him was overwhelming. Appellant was driving at ninety-two miles per hour, had a blood

alcohol count of 0.247—three times the legal limit—and a urinalysis that tested positive for

cocaine. Furthermore, the record is filled with testimony that Appellant was driving the truck that

killed a four-year-old child, and an EMS paramedic also testified that Appellant confirmed to her

that he was the driver. The evidence was overwhelming to such a degree that Appellant plead

guilty to intoxication manslaughter and injury to a child, which the jury found him guilty of.

Eighth, the record does not indicate that the court’s denial of the indefinite time requested resulted

in any particular, identifiable harm to Appellant. Ninth, Appellant’s appointed attorney was not

aware of Appellant’s desire to retain new counsel until the morning of trial and, ostensibly, been


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preparing to try the case for seven months. From his performance at trial—questioning potential

jurors during voir dire, directing and cross-examining witnesses on Appellant’s behalf, objecting

to evidence exhibits, and presenting opening and closing statements—it is evident Appellant’s

attorney was prepared and provided him with adequate representation. Moreover, the trial judge

assured Appellant that his appointed attorney “is one of this Court’s better attorneys.” Ultimately,

only one Windham factor—no prior continuances requested—favors the granting of the motion for

continuance. Although three of the Windham factors are not absolutely supported either in favor

of or in opposition of granting the motion for continuance, “under an abuse of direction standard,

it is not our role to reweigh the factors, but to determine whether the trial court could reasonably

have balanced them and concluded that the fair and efficient administration of justice weighed

more heavily than appellant’s right to counsel of his choice.” Rosales, 841 S.W.2d at 375.

Nonetheless, most of the Windham factors support the trial court’s ruling, specifically the timing

of the request, the absence of specific complaints—or any complaint—about the appointed

attorney, and the absence of specific reasons for wanting to obtain a new attorney. In James, our

sister court found these factors to be sufficient to deny the motion for continuance and we agree.

506 S.W.3d at 565. Thus, the trial court reasonably concluded that administration of justice

outweighed Appellant’s right to counsel of choice. Accordingly, we hold that the trial court did

not abuse its discretion in denying Appellant’s motion for continuance to retain counsel of his

choice. Appellant’s issue is overruled.

                                          CONCLUSION

       The judgment of the trial court is affirmed.




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July 27, 2018
                                            YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)




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