                           NUMBER 13-14-00177-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

MICHAEL ADAM ALVAREZ,                                                   Appellant,

                                              v.


THE STATE OF TEXAS,                                                       Appellee.


                   On appeal from the 24th District Court
                           of DeWitt County, Texas.


                        MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Perkes and Longoria
           Memorandum Opinion by Chief Justice Valdez

      Appellant, Michael Adam Alvarez, appeals the trial court’s revocation of his

community supervision and adjudication of guilt for aggravated assault with a deadly

weapon, punishable as a first-degree felony pursuant to the habitual offender statute.

See TEX. PENAL CODE ANN. §§ 22.02 (West, Westlaw through 2013 3d C.S.), 12.42(b)
(West, Westlaw through 2013 3d C.S.). By one issue, appellant contends that the trial

court violated his Sixth Amendment right to consult with counsel by forcing his

adjudication hearing to proceed after he indicated he was feeling ill. We affirm.

                                     I.     BACKGROUND

       On May 31, 2011, Alvarez pleaded guilty to aggravated assault with a deadly

weapon, punishable as a first-degree felony pursuant to the habitual offender statute.

See id. §§ 22.02, 12.42(b). As a result of a plea agreement, Alvarez received eight years

of deferred adjudication community supervision. On January 9, 2014, the State filed a

motion to revoke community supervision and adjudicate guilt, alleging that Alvarez had

committed multiple violations of the terms of his community supervision. The trial court

held a hearing on the State’s motion on February 27, 2014, at which appellant pleaded

“not true” to all of the allegations. After hearing testimony from the State’s witnesses, the

trial court found multiple allegations true, revoked Alvarez’s community supervision, and

assessed punishment at thirty-four years’ imprisonment. This appeal followed.

                                      II.    DISCUSSION

       During the hearing, Alvarez’s trial counsel initially informed the court that Alvarez

had advised him that “he does not want to go forward with this. I’ve told him unless we

do some kind of plea bargain we’re going forward and I’m ready.” However, after the

State called its first witness, trial counsel notified the trial court that Alvarez had requested

to talk to the trial court about his medical condition. Alvarez then addressed the trial court,

stating that he was on medication for a slipped disc and was very dizzy.                Alvarez

explained, “I got a slipped disc and a pinched nerve and it’s killing me right now. I just

want to get this over.” The trial court responded,



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      The problem is that we have all kind of people that have traveled here today
      for this hearing, people that have been subpoenaed to be here, and I just
      want the record to reflect that, you know, I am able to observe you and your
      condition. I see that you are in a wheelchair, but you were able to get up
      and you were able to get into your chair and sit next to [your trial attorney]
      and, from my observations, I think you’re capable of going forward. I’d like
      to go forward with the hearing . . . .

Neither Alvarez nor his attorney ever requested a continuance.

      Appellant argues that the trial court should have granted a continuance or a recess

to allow Alvarez to regain his health so that he could participate at trial. See TEX. CODE

CRIM. PROC. ANN. art. 29.03 (West, Westlaw through 2013 3d C.S.) (“A criminal action

may be continued on the written motion of the State or of the defendant, upon sufficient

cause shown; which cause shall be fully set forth in the motion.”). Appellant contends

that because of his illness, he was unable to effectively communicate with his trial

attorney; therefore, by proceeding with the hearing, the trial court violated his Sixth

Amendment right to counsel. See U.S. CONST. amend. VI. We disagree.

      We review the granting or denying of a motion for continuance using an abuse of

discretion standard. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007). The

only case cited by appellant in support of his argument relates to whether a trial court

abuses its discretion by failing to grant a continuance when trial counsel is not prepared

for trial. See Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995) (en banc)

(“Where denial of a continuance has resulted in representation by counsel who was not

prepared, we have not hesitated to declare an abuse of discretion.”).

      In the present case, Alvarez’s trial counsel never informed the trial court that he

could not communicate with Alvarez and, in fact, told the trial court that he was ready to

proceed. And, while addressing the court, Alvarez specifically requested that he wanted



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“to get this over.” Moreover, the trial court determined on the record that, from its

observations, Alvarez was capable of going forward. Nothing in the record indicates that

Alvarez was unable to effectively communicate with his trial attorney or even that he or

his attorney believed he was incapable of doing so. Accordingly, we hold that the trial

court did not abuse its discretion by failing to grant a continuance and did not violate

Alvarez’s Sixth Amendment right to counsel. See U.S. CONST. amend. VI; Gallo, 239

S.W.3d at, 764.

       We overrule Alvarez’s sole issue.

                                   III.    CONCLUSION

       We affirm the trial court’s judgment.

                                                /s/ Rogelio Valdez
                                                Rogelio Valdez
                                                Chief Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
29th day of August, 2014.




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