                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-093-CR


NATHAN FREEMAN                                                    APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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           FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

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                         MEMORANDUM OPINION 1

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                                I. INTRODUCTION

      The trial court adjudicated Appellant Nathan Freeman guilty of aggravated

assault and sentenced him to twenty years’ confinement. In seven points,

Freeman argues that the trial court erred by denying his motion for continuance

and his trial counsel’s motion to withdraw and abused its discretion by finding




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           See Tex. R. App. P. 47.4.
true five alleged community supervision violations that “resulted in an increased

punishment assessment by the trial court.” We will affirm.

                                 II. B ACKGROUND

      In December 2007, pursuant to a plea bargain agreement, Freeman

waived his right to a jury trial, signed a judicial confession admitting guilt, and

pleaded guilty to the offense of aggravated assault. The trial court accepted

the plea agreement, deferred adjudicating Freeman’s guilt for the offense of

aggravated assault, and placed Freeman on five years’ deferred adjudication

community supervision. The deferred adjudication order contained numerous

terms and conditions of Freeman’s community supervision.

      On October 2, 2008, the State filed a motion to proceed with an

adjudication of guilt. The motion alleged that Freeman had violated several

terms and conditions of his community supervision by (1) choking Holly Anne

Tingle with his hand, hitting Tingle’s head with his hand, throwing Tingle on the

floor, and slamming Tingle on the sofa; (2) failing to pay a fine in accordance

with his payment plan for the month of September 2008; (3) failing to pay

court costs and any warrant fee in accordance with his payment plan for the

month of September 2008; (4) failing to pay his court-appointed counsel fee in

accordance with his payment plan for the month of September 2008; (5) failing

to complete four hours per week of community service restitution; (6) failing to

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timely complete a drug and alcohol evaluation; (7) failing to attend counseling

once per week and to continue attending counseling until released with

successful completion; (8) failing to timely submit to a psychological evaluation;

and (9) failing to participate in an anger management course. On March 4,

2009, the day of the hearing on the State’s motion to adjudicate, the trial court

denied Freeman’s motion for continuance and his trial counsel’s motion to

withdraw, both of which were filed that same day. After a hearing on the

motion, the trial court found each of the State’s allegations true, found Freeman

guilty of the offense of aggravated assault, and sentenced him to twenty years’

confinement. Freeman appeals.

                             III. C OUNSEL OF C HOICE

      In his first and second points, Freeman argues that the trial court denied

him his right to the counsel of his own choosing because it denied his motion

for continuance and his trial counsel’s motion to withdraw.

      The code of criminal procedure provides that “[a] criminal action may be

continued on the written motion . . . of the defendant, upon sufficient cause

shown.” Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 2006). The grant or

denial of a motion for continuance is within the sound discretion of the trial

court, and our review of the denial of the motion is limited to whether the trial

court abused that discretion. Renteria v. State, 206 S.W.3d 689, 699 (Tex.

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Crim. App. 2006); Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App.

1996), cert. denied, 522 U.S. 825 (1997).

      The federal and Texas constitutions guarantee a defendant in a criminal

proceeding the right to have assistance of counsel. Gonzalez v. State, 117

S.W.3d 831, 836 (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. 2 Powell v. Alabama, 287 U.S. 45, 53, 53 S. Ct. 55, 58

(1932); Gonzalez, 117 S.W.3d at 836–37.          The defendant’s right to the

counsel of his choice, however, is neither unqualified nor absolute; while there

is a strong presumption in favor of a defendant’s right to retain counsel of his

choice, this presumption may be overridden by other important considerations

relating to the integrity of the judicial process and the fair and orderly

administration of justice. Gonzalez, 117 S.W.3d at 837. “An accused . . . may

not use his constitutional right to counsel so as to manipulate the




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        Freeman states in his brief that the trial court denied him the right to
counsel of his own choice under the United States Constitution and the Texas
Constitution, but he does not set forth any argument or authority that the
protections afforded by the Texas Constitution differ from the protections
afforded by the United States Constitution. We therefore do not separately
analyze Freeman’s inadequately briefed state constitutional contention. See,
e.g., Obando v. State, No. 14-07-00359-CR, 2008 WL 2133292, at *1 n.1
(Tex. App.—Houston [14th Dist.] May 20, 2008, no pet.) (mem. op., not
designated for publication); see also Tex. R. App. P. 38.1(I).

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commencement of his trial to suit his convenience and pleasure.”         Neal v.

State, 689 S.W.2d 420, 427 (Tex. Crim. App. 1984), cert. denied, 474 U.S.

818 (1985).

      There is no mechanical test to evaluate when the denial of a continuance

violates the right to select counsel of one’s choice; therefore, we must evaluate

each scenario on a case-by-case basis. See Ex parte Windham, 634 S.W.2d

718, 720 (Tex. Crim. App. 1982). In deciding whether to grant a continuance

because of the absence of the defendant’s choice of counsel, the trial court

should weigh the following 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 was for legitimate or

contrived reasons; (7) whether the case was complex or simple; (8) whether

the denial of the motion resulted in some identifiable harm to the defendant;

and (9) the quality of legal representation actually provided. Id. It is not our

role to reweigh the factors; instead, we must determine whether the trial court

could reasonably have balanced these factors and concluded that the fair and

efficient administration of justice weighed more heavily than Freeman’s right to

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counsel of his choice.      Greene v. State, 124 S.W.3d 789, 794 (Tex.

App.—Houston [1st Dist.] 2003, pet. ref’d).

      The State argues that Freeman did not preserve this issue for review.

Assuming without deciding that Freeman preserved this issue for appellate

review, the trial court did not abuse its discretion by denying Freeman’s

motions. The record demonstrates that Freeman requested a continuance to

“find and prepare for hearing with new counsel,” but there is no indication in

the record regarding how long of a delay Freeman was requesting to find and

prepare for the hearing with new counsel. The State filed its motion to proceed

with an adjudication of guilt on October 2, 2008, and Freeman’s trial counsel

filed a notice of representation and appearance the following day, October 3,

2008. The hearing on the State’s motion did not take place until March 4,

2009.      Freeman’s trial counsel thus had several months to prepare for the

hearing.     There is nothing in the record to show that another competent

attorney was prepared to try the case; indeed, at the hearing on the State’s

motion, Freeman’s trial counsel stated that Freeman had just decided on

“Friday” (likely February 27, 2009) that he wanted to find substitute counsel.

There is little explanation regarding the reason for the requested delay; the

motion for continuance stated that Freeman wanted new counsel, and in the

motion to withdraw, trial counsel reasoned that Freeman “has expressed

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concerns with my dedication to his cause, and he seeks to retain or be

appointed new counsel.” Freeman concedes that the case “was not extremely

difficult to try.” At the hearing on the State’s motion, Freeman’s trial counsel

thoroughly cross-examined the State’s witnesses, questioned Freeman about

the State’s allegations, and argued that the court should take into consideration

Freeman’s “solid work history” and “interest and desire to support his family”

when determining his sentence. No previous continuances had been granted,

but the case had been reset several times, and the motion for continuance and

motion to withdraw were filed on the day of the hearing.

      In light of the record, the trial court could reasonably have balanced the

Windham factors and concluded that the fair and efficient administration of

justice weighed more heavily than Freeman’s right to counsel of his choice.

See Windham, 634 S.W.2d at 720; Greene, 124 S.W.3d at 794. Accordingly,

we hold that the trial court did not abuse its discretion by denying Freeman’s

motion for continuance to secure counsel of his choice and trial counsel’s

motion to withdraw. We overrule Freeman’s first and second points.

                                 IV. S ENTENCE

      In his third, fourth, fifth, sixth, and seventh points, Freeman argues that

the evidence is insufficient to support—and that the trial court therefore abused

its discretion by finding true—the State’s allegations that he violated his

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community supervision by failing to pay a fine, failing to pay court costs, failing

to pay his court-appointed counsel fee, failing to timely complete a drug and

alcohol evaluation, and failing to timely submit to a psychological evaluation.

But Freeman does not contest the trial court’s decision to adjudicate his guilt;

he does not challenge the trial court’s findings of true to the State’s other four

allegations. Instead, Freeman argues that the trial court’s abuse of discretion

in finding true the above five allegations “resulted in an increased punishment

assessment by the trial court.” According to Freeman, “if the trial court had

correctly found that these five violations [were] not true, a lower punishment

would have been assessed.”

      It is well established that proof by a preponderance of the evidence of any

one of the alleged violations of the conditions of community supervision is

sufficient to support a revocation order. Moore v. State, 605 S.W.2d 924, 926

(Tex. Crim. App. [Panel Op.] 1980); Sanchez v. State, 603 S.W.2d 869, 871

(Tex. Crim. App. [Panel Op.] 1980).         Further, article 42.12, section 5(b)

provides that, once guilt is adjudicated, the case then proceeds as though

adjudication of guilt was never deferred.      Tex. Code Crim. Proc. Ann. art.

42.12, § 5(b) (Vernon Supp. 2009).

      Sentencing is within the sound discretion of the trial court. Jackson v.

State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). Generally, as long as a

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sentence is within the statutory range of punishment and has a factual basis in

the record, it will not be disturbed on appeal. Id. Accordingly, once guilt is

adjudicated, a defendant is subject to the entire range of punishment for the

offense. Ditto v. State, 988 S.W.2d 236, 238–39 (Tex. Crim. App. 1999);

Buerger v. State, 60 S.W.3d 358, 365 (Tex. App.—Houston [14th Dist.] 2001,

pet. ref’d).

      Aggravated   assault   is   a   second   degree   felony,   punishable   by

imprisonment for any term of not more than twenty years or less than two

years. Tex. Penal Code Ann. §§ 12.33(a), 22.02(b) (Vernon Supp. 2009).

      Here, at the adjudication hearing, a Denton County probation supervisor

testified that Freeman was in violation of each ground alleged by the State in

its motion to adjudicate. Also, Tingle testified that she dated Freeman for two

to three months; that Freeman moved in with her at some point before August

11, 2008; that on August 11, 2008, Freeman “tossed” her around, threw her

on her bed, and choked her with his hand; and that on August 13, 2008,

Freeman slapped her face with a cell phone bill, “tossed” her around on the

ground and on the couch, causing her to hit her head, and hit her ear with his

hand, which he had wrapped in a towel.         After considering the evidence

adduced at the hearing, the trial court found the State’s allegations true and

adjudicated Freeman guilty of aggravated assault.       Freeman’s twenty-year

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sentence is within the authorized penalty range, and he does not challenge the

trial court’s findings of true to the State’s allegations that he violated his

community supervision by choking Tingle, hitting Tingle, throwing Tingle on the

floor, and slamming Tingle on the sofa; failing to complete community service

restitution; failing to attend counseling; and failing to participate in an anger

management course. Freeman’s argument that he would have received a lesser

sentence had the trial court not found true the five challenged allegations is

unpersuasive because the trial court could have sentenced him to twenty years’

confinement based on its findings of true to the allegations that he does not

challenge. Accordingly, we overrule Freeman’s third, fourth, fifth, sixth, and

seventh points.

                                V. C ONCLUSION

      Having overruled Freeman’s seven points, we affirm the trial court’s

judgment.

                                            PER CURIAM

PANEL: MEIER, DAUPHINOT, and GARDNER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 10, 2009




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