Opinion issued July 12, 2012.




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                            NO. 01-10-00250-CR
                          ———————————
                 SAMUEL DERRICK GARCIA, Appellant
                                      V.

                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 182nd District Court
                          Harris County, Texas
                      Trial Court Case No. 1156347



                        MEMORANDUM OPINION

      Samuel Derrick Garcia appeals the trial court’s judgment revoking his

community supervision, adjudging him guilty of the felony offense of aggravated
assault, and sentencing him to ten years’ confinement.1 Garcia contends that the

trial court erred by refusing to grant a continuance of the revocation hearing and

that, by so erring, the trial court deprived him of the right to retain counsel of his

own choosing. Garcia further contends that his appointed counsel was ineffective

at the revocation hearing. We affirm.

                                    Background

      A grand jury indicted Garcia for aggravated assault arising from a motor

vehicle accident. Garcia retained attorney Israel Santana to represent him in the

criminal proceedings. Before the trial commenced, Garcia pleaded guilty, waived

certain constitutional and statutory rights, and entered a judicial confession. The

trial court deferred its adjudication of Garcia’s guilt, placed him on five years’

community supervision, and delineated several conditions of the community

supervision. Fourteen months later, the State moved for revocation of Garcia’s

community supervision and adjudication of his guilt. The State alleged ten

violations of the conditions of Garcia’s community supervision, including

commission of a new offense; failure to obtain suitable employment; failure to

timely report to his community supervision officer; failure to submit to random

urine specimen analysis; failure to perform community service as ordered by the



1
      See TEX. PENAL CODE ANN. §§ 22.01, 22.02 (West 2011).

                                          2
trial court; failure to pay numerous costs and fees; and failure to satisfactorily

complete an outpatient treatment program.

      Garcia requested the appointment of counsel for the revocation hearing. On

January 27, 2010, the trial court granted Garcia’s request, appointed attorney

Randy Martin to serve as Garcia’s counsel, and set the revocation hearing for

March 18. Not long after his appointment, Martin met separately with Garcia—

who was detained at the Harris County jail—and his wife. Both Garcia and his

wife informed Martin that they planned to retain Santana—the lawyer who handled

the plea agreement—to represent Garcia at the revocation hearing. Consistent with

the Garcias’ representations, Martin received a fax from Santana’s office enclosing

a motion to substitute counsel for Martin’s signature and a proposed order. Martin

signed the motion, returned it to Santana, and did not make any preparations for

the revocation hearing. Santana, however, never filed the motion to substitute

counsel with the trial court. When Martin appeared in the trial court on another

matter the day before Garcia’s revocation hearing, the trial court informed Martin

that no motion to substitute counsel for Garcia had been filed.

      Martin ultimately appeared at the revocation hearing. Santana did not.

Before the hearing commenced, Martin met with Garcia in the trial court’s

holdover cell to discuss the defense of the State’s motion. Because the limited time

he spent with Garcia in the holdover cell was the only time he had spent preparing

                                         3
for the revocation hearing, Martin orally requested a continuance. In support of the

continuance request, Garcia’s wife testified that she paid Santana the fee to

represent Garcia at the hearing in full and that a secretary from Santana’s office

assured her Santana would represent Garcia. Garcia also testified regarding his

surprise at Santana’s failure to appear at the hearing. In argument to the trial court,

Martin stated:

             So, what I’m saying is I did not visit with Mr. Garcia about the
      defense of this [Motion to Adjudicate Guilt] until this morning
      because I had the Motion to Substitute. I thought Israel Santana would
      be here. When I came here this morning and talked with the family,
      just like his wife testified to, just like Mr. Garcia testified to, they
      were expecting Israel Santana to be here today. And for that reason – I
      understand in a [Motion to Adjudicate Guilt] the burden of proof is
      low. There’s no jury so we don’t need to work on the dog and pony
      show. The issues are very straight forward. But, nevertheless, the only
      time I’ve spent preparing for this is this morning. And I would ask for
      a short reset.

      Before announcing its ruling, the trial court stated that Martin remained

counsel of record because no motion to substitute counsel had been filed. The trial

court further stated that a representative of Santana’s office had informed the trial

court that Santana could not attend the revocation hearing and had opted not to get

further involved in the case. According to the trial court, Santana’s representative

stated that Garcia “needed to come back to the office so that they could settle up

whatever business matters might be unresolved on that point.” The trial court then

denied the motion for continuance and proceeded on the State’s motion.

                                          4
      Garcia pleaded true to four violations of the conditions of his community

supervision. The trial court heard testimony from Garcia’s community supervision

officer and Garcia himself regarding the remainder of the alleged violations. The

trial court found three additional violations true, convicted Garcia of aggravated

assault, and after testimony from the complainant related to punishment, sentenced

Garcia to ten years’ confinement. This appeal followed.

                               Motion for Continuance

      In his second and third issues,2 Garcia contends that the trial court erred by

refusing to grant a continuance of the revocation hearing so that appointed counsel

Martin would have adequate time to prepare a defense to the allegations in the

State’s motion. Garcia argues, first, that Martin was entitled to have at least ten

days to prepare for the revocation hearing under article 1.051(e) of the Code of

Criminal Procedure, and second, that once it became apparent Santana would not

represent Garcia at the revocation hearing, Martin had only the morning of the

hearing to prepare. The standard of review is abuse of discretion. See Gallo v.

State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007).




2
      Garcia timely filed an appellant’s brief raising two issues. Before the State filed its
      brief, Garcia filed an “amended and supplemental brief” raising two additional
      issues. Although Garcia labels the additional issues “supplemental point of error
      one” and “supplemental point of error two,” we refer to them in this opinion
      respectively as Garcia’s third and fourth issue.
                                             5
      Neither of Garcia’s arguments establishes an abuse of discretion. First, the

record does not establish a violation of article 1.051(e). See TEX. CODE CRIM.

PROC. ANN. art. 1.051(e) (West 2011). Under article 1.051(e), “[a]n appointed

counsel is entitled to 10 days to prepare for a proceeding but may waive the

preparation time with the consent of the defendant in writing or on the record in

open court.” Id. Here, the trial court signed its order appointing Martin on January

27. The same order set the revocation hearing for March 18. Nothing in the record

suggests that Martin did not receive timely notice of either the appointment or the

hearing date; instead, the record suggests the opposite. Martin met with Garcia

shortly after the appointment on February 4. Thus, as of February 4—if not

before—Martin had notice of the March 18 hearing, giving him forty-two days to

prepare a defense to the State’s motion. The allegations in the State’s motion to

adjudicate guilt did not change in the period between Martin’s first meeting with

Garcia and the hearing on the motion. The record does not contain any substitution

order relieving Martin of his obligation to prepare for the hearing during the forty-

two-day period. See TEX. CODE CRIM. PROC. ANN. art. 26.04(j)(2) (West Supp.

2011) (providing that appointed attorney shall “represent the defendant until

charges are dismissed, the defendant is acquitted, appeals are exhausted, or the

attorney is permitted or ordered by the court to withdraw as counsel for the

defendant after a finding of good cause is entered on the record”); Bryant v. State,

                                         6
75 S.W.3d 628, 631 (Tex. App.—Fort Worth 2002, pet. ref’d) (observing that “it is

well-established that when counsel appears on behalf of a criminal defendant as his

attorney of record, that lawyer, whether appointed or retained, is obligated to

represent the client until the trial court actually grants a motion to withdraw or a

motion to substitute counsel”).

      Second, the Code of Criminal Procedure provides that “[a] criminal action

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

sufficient cause shown.” TEX. CODE CRIM. PROC. ANN. art. 29.03 (West 2011)

(emphasis added). Although Martin orally informed the trial court that he was

unprepared for the revocation hearing and presented supporting testimony, he did

not move for a continuance in writing. To preserve error from the trial court’s

ruling denying the motion for continuance, Garcia was required to comply with

article 29.03’s in-writing requirement. See Anderson v. State, 301 S.W.3d 276,

278–81 (Tex. Crim. App. 2009) (determining that failure to move for continuance

in writing forfeits right of appellate review of motion). “[T]he denial of an oral

motion for continuance preserves nothing for our review.” Robinson v. State, 310

S.W.3d 574, 579 (Tex. App.—Fort Worth 2010, no pet.) (citing Anderson, 301

S.W.3d at 278−81); see also Donahoe v. State, No. 01-07-00862-CR, 2010 WL

2873694, at *3−4 (Tex. App.—Houston [1st Dist.] July 22, 2010, no pet.) (mem.

op., not designated for publication).

                                         7
      We conclude that because Garcia did not establish a violation of article

1.051(e) and because his motion for continuance was not in writing, the trial court

did not abuse its discretion in proceeding with the revocation hearing. We overrule

Garcia’s second and third issues.

                                 Choice of Counsel

      In his first issue, Garcia contends that the trial court erred by denying Garcia

his right to “have his retained attorney, Israel Santana[,] to be present and represent

[Garcia] during his Motion to Adjudicate Guilt Hearing[.]” Garcia further contends

that the trial court “unlawfully and without permission, unilaterally substituted

previously appointed attorney [Martin] for attorney Santana.” We disagree.

      A defendant has the right to assistance of counsel in a criminal proceeding.

See U.S. CONST. amend VI; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN.

art. 1.05(a) (West 2011); 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

retain counsel of his choice. See United States v. Gonzalez-Lopez, 548 U.S. 140,

144, 126 S. Ct. 2557, 2561 (2006); Gonzalez, 117 S.W.3d at 836−37. But the right

to counsel of choice is not absolute. See Wheat v. United States, 486 U.S. 153, 159,

108 S. Ct. 1692, 1697 (1988) (“[W]hile the right to select and be represented by

one’s preferred attorney is comprehended by the Sixth Amendment, the essential

aim of the Amendment is to guarantee an effective advocate for each criminal

                                          8
defendant rather than to ensure that a defendant will inexorably be represented by

the lawyer whom he prefers.”). A defendant may not insist on representation by an

attorney who declines the representation. See id. The defendant’s right must also

be balanced against “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; see also Gonzalez-Lopez, 548 U.S. at 152, 126 S. Ct. at 2566−67

(“We have recognized a trial court’s wide latitude in balancing the right to counsel

of choice against the needs of fairness and against the demands of its calendar.”)

(citations omitted); Ex parte Windham, 634 S.W.2d 718, 720 (Tex. Crim. App.

1982) (listing factors to be weighed in balancing defendant’s right to counsel of

choice against trial court’s need for prompt and efficient administration of justice).

When a trial court unreasonably or arbitrarily interferes with the defendant’s right

to choose counsel, however, its actions rise to the level of a constitutional

violation. See Gonzalez, 117 S.W.3d at 837.

      Garcia’s argument regarding the trial court’s denial of his right to choose

counsel rests on the premise that Santana agreed to represent Garcia at the

revocation hearing and moved to substitute counsel. With respect to whether

Santana agreed to represent Garcia, the record contains conflicting information.

Garcia’s wife testified that she paid Santana’s fee in full and received assurances

that Santana would represent Garcia at the revocation hearing; however, the trial

                                          9
court stated that a representative of Santana’s office had declined the

representation and noted outstanding “business matters” with Garcia. Garcia’s

assertion regarding the filing of a motion to substitute counsel is factually

incorrect. The record does not contain any request from Santana to substitute as

counsel for Garcia, and the trial court stated for the record that no motion had been

filed. Thus, the trial court did not unilaterally substitute Martin for Santana;

Martin, whom the trial court appointed forty-five days before the hearing, was

Garcia’s only counsel of record. See TEX. CODE CRIM. PROC. ANN. art. 26.04;

Bryant, 75 S.W.3d at 631.

       Moreover, at the time the trial court conducted its hearing, the State’s

motion to adjudicate guilt had been pending for more than sixty days, giving

Garcia a fair amount of time to secure Santana’s representation. Nothing in the

record suggests that Santana would have accepted the representation if the trial

court had granted a continuance. Although Martin requested additional time to

prepare, he recognized at the hearing that the matters presented in the State’s

motion were simple and straightforward. The State’s witnesses were present and

ready to testify.

       From Santana’s failure to file a motion to substitute or appear at the

revocation hearing, the trial court could reasonably have concluded that Santana

declined the representation. Garcia had ample notice of the revocation hearing and

                                         10
did not request a continuance in writing. We cannot conclude that the record

supports Garcia’s contention that the trial court unreasonably or arbitrarily

interfered with his right to counsel of choice. We conclude instead that the trial

court acted within its discretion in proceeding on the State’s motion to adjudicate

guilt, and we overrule Garcia’s first issue.

                         Ineffective Assistance of Counsel

      In his fourth issue, Garcia argues that Martin was ineffective at the

revocation hearing because he erroneously relied on “retained counsel’s

[Santana’s] representations that [he] would file a motion to substitute counsel,” and

as a result of that reliance, failed to prepare a defense or to perform “any case

investigation or trial preparation[.]” Garcia claims prejudice arising from Martin’s

deficient performance in that Garcia “essentially pleaded true to some of the

State’s allegations without the benefit of effective counsel, was found guilty based

on those pleas and the State’s evidence (which counsel was unprepared to rebut or

mitigate), and received a ten-year prison sentence.”

      Garcia’s right to effective legal representation extended to the revocation

hearing. See Hill v. State, 480 S.W.2d 200, 203 (Tex. Crim. App. 1971) (op. on

reh’g). Generally, we adhere to the two-prong Strickland analysis in determining

whether counsel rendered adequate legal assistance. See Strickland v. Washington,

466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Bone v. State, 77 S.W.3d 828,

                                          11
833 (Tex. Crim. App. 2002). Under Strickland, Garcia must demonstrate both

deficient performance and prejudice—i.e., he must show that (1) Martin’s

performance fell below an objective standard of reasonableness and (2) there is a

reasonable probability that, but for Martin’s unprofessional errors, the result of the

revocation hearing would have been different. See Strickland, 466 U.S. at 687, 104

S. Ct. at 2064; Bone, 159 S.W.3d at 833. The prejudice to Garcia resulting from

Martin’s performance is judged by whether Martin’s conduct “so undermined the

proper functioning of the adversarial process that the [revocation hearing] cannot

be relied on as having produced a just result.” Ex parte Amezquita, 223 S.W.3d

363, 366 (Tex. Crim. App. 2006) (citing Strickland, 466 U.S. at 686, 104 S. Ct. at

2064).

      Both the United States Supreme Court and the Texas Court of Criminal

Appeals have recognized, however, a limited exception to the Strickland analysis

for “circumstances that are so likely to prejudice the accused that the cost of

litigating their effect in a particular case is unjustified.” United States v. Cronic,

466 U.S. 648, 658, 104 S. Ct. 2039, 2046 (1984); see also Batiste v. State, 888

S.W.2d 9, 14 (Tex. Crim. App. 1994). Prejudice is presumed when (1) the accused

is denied the presence of counsel at a critical stage of his trial, (2) counsel entirely

fails to subject the prosecution’s case to meaningful adversarial testing, or (3)

circumstances at trial are such that, although counsel is available to assist the

                                          12
accused during trial, the likelihood that any lawyer, even a fully competent one,

could provide effective assistance is so small that a presumption of prejudice is

appropriate without inquiry into the actual conduct of the trial. See Cronic, 466

U.S. at 659−60, 104 S. Ct. at 2047.

      Garcia relies primarily on Strickland’s two-prong analysis in his complaints

about Martin’s performance. This is not a case in which prejudice, because it is so

likely, is presumed. The Court of Criminal Appeals has rejected Cronic’s

presumption of prejudice when counsel has only a short time to prepare for a

revocation hearing. See Solis v. State, 718 S.W.2d 282, 285 (Tex. Crim. App.

1986) (declining to find that appointment of counsel on same day as revocation

hearing justified “a presumption of ineffectiveness and dispense with the need to

inquire into counsel’s actual performance”). Martin—although mistaken in his

belief that Santana would represent Garcia at the revocation hearing—did not

“entirely fail[ ] to subject the prosecution’s case to meaningful adversarial testing,”

so that there was a constructive denial of the assistance of counsel altogether.

Cronic, 466 U.S. at 659, 104 S. Ct. at 2047. He demonstrated knowledge of the

facts of Garcia’s case, actively participated in the hearing by subjecting the State’s

witness to meaningful cross-examination, and presented testimony and argument

on behalf of Garcia. Thus, even assuming that Martin’s purported lack of

preparedness fell below the standard of prevailing professional norms, Garcia was

                                          13
not constructively denied the assistance of counsel and therefore must still

affirmatively prove that Martin’s actions prejudiced him under Strickland.

      We cannot agree that there is a reasonable probability that, but for Martin’s

deficient performance, the result of the revocation hearing would have been

different. As Martin acknowledged during the revocation hearing, the State’s

burden of proof on its motion to adjudicate guilt was low. The State needed only

prove the allegations in its motion by a preponderance of the evidence. See

Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). Proof of any one

violation was sufficient to support a revocation. See Moses v. State, 590 S.W.2d

469, 470 (Tex. Crim. App. [Panel Op.] 1979); Smith v. State, 290 S.W.3d 368, 375

(Tex. App.—Houston [14th Dist.] 2009, pet. ref’d); Lee v. State, 952 S.W.2d 894,

897 (Tex. App—Dallas 1997, no pet.) (en banc).

      Here, Garcia pleaded true to four violations of the conditions of his

community supervision—namely, (1) the commission of another offense, (2) the

failure to submit to random urine specimen analysis on one occasion, (3) the

failure to pay a community supervision fee, and (4) the failure to successfully

complete outpatient treatment. Despite Garcia’s contention that his guilty pleas

were made without the assistance of counsel, the record establishes that Martin met

with Garcia for an undisclosed length of time before the hearing commenced. The




                                        14
record is silent with respect to any advice Martin gave Garcia regarding his guilty

pleas during that meeting.

      Garcia does not complain on appeal that the allegations in the State’s motion

with respect to those four violations were involuntary or inaccurate—despite his

pleas of true—or that he had any defense to them. Rather, consistent with his pleas

of true, Garcia testified at the revocation hearing that he pleaded guilty to criminal

mischief in another case while on community supervision, he failed to submit to

random urine specimen analysis when requested by his community supervision

officer, he fell behind in payment of fees, and he was not allowed to complete the

outpatient treatment program after being late to meetings on more than one

occasion. To establish the violations of the other community supervision terms, the

State presented testimony of Garcia’s community supervision officer and some

exhibits. The record does not reflect that witnesses or other evidence were

available to rebut or mitigate the State’s allegations or that a viable defense would

have been uncovered upon a more thorough investigation. Thus, Garcia cannot

show that the result of the revocation hearing would have been different had he

been advised by counsel not to plead true to any of the State’s allegations.

      Even after considering all the evidence and the arguments of counsel, the

trial court did not find all of the State’s allegations true. The punishment assessed

by the trial court (ten years’ confinement) was in the middle of the sentencing

                                         15
range for aggravated assault (two to twenty years’ confinement). See TEX. PENAL

CODE ANN. § 12.33(a) (West 2011). On this record, we cannot conclude that the

result of the revocation hearing is rendered unreliable by a breakdown in the

adversarial process, and therefore we cannot grant Garcia relief on his ineffective

assistance claim. We overrule Garcia’s fourth issue.

                                   Conclusion

      Having overruled each of Garcia’s issues on appeal, we affirm the trial

court’s judgment.




                                                   Harvey Brown
                                                   Justice

Panel consists of Justices Bland, Massengale, and Brown.

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




                                           16
