

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. 



