
                           NO. 07-09-0297-CR

                        IN THE COURT OF APPEALS

                   FOR THE SEVENTH DISTRICT OF TEXAS

                              AT AMARILLO

                                PANEL A

                            NOVEMBER 10, 2010








                    ROBERT DAVID ARGUIJO, APPELLANT


                                   v.


                      THE STATE OF TEXAS, APPELLEE





             FROM THE 242ND DISTRICT COURT OF CASTRO COUNTY;

              NO. B3145-0708; HONORABLE EDWARD SELF, JUDGE





Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                           MEMORANDUM OPINION

       On  August  28,  2009,  Appellant,  Robert  David  Arguijo,  was
adjudicated  guilty  of  the  offense  of  aggravated  assault[1]   and
sentenced to ten years confinement and a fine of $5,000.  In  a  single
issue, Appellant asserts the  trial  court  abused  its  discretion  by
denying him the opportunity to hire counsel of his choice.  We affirm.

                               Background

      On February 12, 2008, Appellant entered a plea of guilty  to  the
offense of aggravated assault.  Pursuant to  a  plea  bargain,  he  was
granted five years deferred adjudication community supervision.

      On December 31, 2008,  the  State  filed  an  Amended  Motion  to
Proceed to Adjudication alleging the following violations of the  terms
and conditions of his community supervision:  (1) failed to  report  to
the Community Supervision  Officer,  (2)  failed  to  pay  restitution,
fees, and costs, and (3) failed to complete  community  service  hours.
On April 2, 2009, following a hearing on the  State's  amended  motion,
the trial court entered  an  order  continuing  Appellant  on  deferred
adjudication community supervision and modifying the terms  thereof  to
include, among other conditions, Appellant's commitment to the  Lubbock
County Court Residential Treatment Center.

      On July 22, 2009, the State filed a subsequent Motion to  Proceed
to Adjudication  alleging  Appellant  failed  to  complete  the  court-
ordered residential treatment center program.  On August  6,  Appellant
filed an affidavit of  financial  status  which  indicated  he  had  no
income and requested court-appointed counsel.  The same day, the  trial
court appointed Kregg Hukill to represent Appellant and set  a  hearing
on the State's Motion to Proceed to Adjudication for August 28.

       Prior  to  the  commencement  of  the  hearing  on  August   28,
Appellant's counsel announced he was ready  to  proceed  but  indicated
that Appellant wanted more time to hire an attorney  of  his  choosing.
Thereafter, the following exchange occurred:

      DEFENDANT:  Your honor, I would like to ask for more  time  so  I
                       could hire my own lawyer.

      COURT:           You asked the Court to appoint a lawyer for you
      on                     August 6, 2009.  You submitted a financial
      affidavit                    indicating you had no income.
      That's why Mr. Hukill                   was appointed for you.
      So why do you think you can                  afford to hire your
      own lawyer now?

      DEFENDANT:  My mother is going to help me.

      COURT:           Why didn't she help before?

      DEFENDANT:  I had no contact with her at the time.  I didn't know
      if                     she was going to be able to.

      COURT:           How much time is it going to take you to  get  a
      lawyer,                      then?

      DEFENDANT:  I think about---I'm not sure, your Honor.

      COURT:           Not sure?

      DEFENDANT:  No, sir.

      COURT:           I will deny your motion for  continuance,  then.
      We'll                        proceed.




      Appellant signed a stipulation of evidence admitting that all  of
the facts and allegations in the  State's  motion  to  adjudicate  were
true and correct and, thereafter, entered a plea of  true.   The  trial
court adjudicated Appellant guilty  and  sentenced  him  to  ten  years
confinement and assessed a $5,000 fine, court  costs,  restitution  and
attorney's  fees--previously  assessed   but   unpaid.    This   appeal
followed.

                               Discussion

      Appellant contends the trial court erred  by  denying  a  request
for a continuance so that he  could  retain  counsel  of  his  choosing
rather than proceed  with  the  attorney  who  had  been  appointed  to
represent him.

      Standard of Review

      Appellant's request to the trial court for more  time  to  retain
different counsel and his appellate complaint involving the  denial  of
that  request  is  a  challenge  to  the  denial  of  a  motion  for  a
continuance.[2]   See  Coleman  v.  State,  188  S.W.3d   708,   722-24
(Tex.App.--Tyler 2005, pet. ref'd), cert. denied,  549  U.S.  999,  127
S.Ct. 502, 166  L.Ed.2d  376  (2006).   The  denial  of  a  motion  for
continuance is within the sound discretion of the trial court, and  our
review of the denial of such a motion is limited to whether  the  trial
court abused that discretion.  Renteria v. State, 206 S.W.3d  689,  699
(Tex.Crim.App.  2006);  Janecka  v.  State,   937   S.W.2d   456,   468
(Tex.Crim.App. 1996), cert. denied, 522 U.S. 825,  118  S.Ct.  86,  139
L.Ed.2d 43 (1997).

      To establish an abuse of discretion,  there  must  be  a  showing
that the defendant  was  actually  prejudiced  by  the  denial  of  his
motion.  Janeka, 937 S.W.2d at 468.   A  bare  assertion  of  prejudice
will not suffice.  Gallo v. State, 239 S.W.3d 757,  764  (Tex.Crim.App.
2007).  Rather, "a defendant  must  demonstrate  both  that  the  trial
court erred in denying the motion and that the lack  of  a  continuance
harmed him."  Gonzales v. State, 304  S.W.3d  838,  843  (Tex.Crim.App.
2010).  Examples of specific  prejudice  include  unfair  surprise,  an
inability to effectively cross-examine witnesses, and the inability  to
elicit  crucial  testimony  from  potential  witnesses.   Janecka,  937
S.W.2d at 468.

      Motion for Continuance

      While the Sixth Amendment of the United States  Constitution  and
article I, section 10 of the Texas Constitution provide an  accused  in
a criminal prosecution with the right to counsel  of  his  or  her  own
choosing, U.S. Const. amend VI; Tex. Const. art.  I,  §  10,[3]  "[t]he
choice of counsel of one's choice is not absolute, and may  under  some
circumstances be forced to bow to 'the general interest in  the  prompt
and efficient administration  of  justice.'"   Rosales  v.  State,  841
S.W.2d 368, 374 (Tex.Crim.App. 1992) (footnote omitted) (quoting  Gandy
v. Alabama, 569 F.2d 1318, 1323 (5th  Cir.  1978),  cert.  denied,  510
U.S. 949, 114 S.Ct. 393, 126 L.Ed.2d 341 (1993)).

      A defendant's Sixth Amendment rights are protected  when  he  has
effective  assistance  from  either  retained  or  appointed   counsel;
Trammel v. State, 287 S.W.3d 336, 343 (Tex.App.--Fort  Worth  2009,  no
pet.) (collected cases  cited  therein),  and,  once  the  trial  court
appoints an attorney to represent the defendant,  there  must  be  some
principled reason to justify  the  replacement  of  appointed  counsel.
Buntion v. Harmon, 827 S.W.2d  945,  949  (Tex.Crim.App.  1992)  (orig.
proceeding).  See Thomas, 550 S.W.2d at 68.[4]  A  defendant  does  not
have the  right  to  the  appointed  counsel  of  his  choice  and  the
accused's right to select his own counsel cannot be  insisted  upon  or
manipulated so as to obstruct the orderly procedure in  the  courts  or
to interfere with the fair administration of justice.  Ex parte  Davis,
818 S.W.2d 64, 66 (Tex.Crim.App. 1991); Webb v. State, 533 S.W.2d  780,
786 (Tex.Crim.App. 1976).  Thus, an accused may not wait until the  day
of trial to demand different counsel or request  counsel  be  dismissed
so that he may retain other counsel because  such  a  delay  interferes
with the timely  administration  of  justice.   Robles  v.  State,  577
S.W.2d 699, 704  (Tex.Crim.App.  [Panel  Op.]  1979)  (collected  cases
cited therein).

      The State filed its motion to proceed on July 22, 2009.   Fifteen
days later, Appellant requested that the trial  court  appoint  counsel
because he was indigent.  The  same  day,  the  trial  court  appointed
counsel and scheduled a revocation hearing for  August  28,  twenty-two
days later.  During the interim, Appellant did not seek  a  continuance
or new representation.  Rather, on the day of  the  hearing,  Appellant
requested a continuance to hire a new  attorney  for  no  other  reason
than his mother had agreed to pay the  cost.[5]   His  mother  did  not
attend the  hearing  to  verify  that  she  would  be  subsidizing  new
representation, Appellant did not know who his  new  counsel  would  be
and his request for more time was open-ended, i.e., he could  not  tell
the trial court how  long  it  would  take  to  find  a  new  attorney.
Further, prior to making the request, his court-appointed attorney  had
announced he was ready to proceed and, after  the  trial  court  denied
Appellant's  request,  ably  represented   Appellant   throughout   the
remainder of the hearing.  Appellant makes no showing that the lack  of
a continuance harmed him.  Based upon this record, we  cannot  say  the
trial court abused its discretion by denying Appellant's motion  for  a
continuance.  Accordingly, Appellant's sole issue is overruled.

                               Conclusion

      The trial court’s judgment is affirmed.



                                             Patrick A. Pirtle
                                                   Justice

Do not publish.
-----------------------
[1]Tex. Penal Code Ann. § 22.02(a)(2) (Vernon Supp. 2010).

[2]The Texas Rules of Criminal Procedure  provide  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).



[3]The Due Process Clause of the Fourteenth  Amendment  guarantees  the
same right to the assistance of counsel, including  the  right  to  the
appointment of counsel in the case of an indigent defendant,  in  state
criminal  proceedings.   Thomas   v.   State,   550   S.W.2d   64,   67
(Tex.Crim.App. 1977) (citing Argersinger v. Hamlin,  407  U.S.  25,  92
S.Ct. 2006, 32 L.Ed.2d 530 (1972)).

[4]An accused bears the burden of proving that  he  is  entitled  to  a
change of counsel.  King v. State, 511  S.W.2d  32,  34  (Tex.Crim.App.
1974).

[5]Appellant did not assert, and the record does not reflect,  any  bad
faith, insincerity, or disloyalty towards Appellant by his attorney.



