                             Fourth Court of Appeals
                                     San Antonio, Texas
                                MEMORANDUM OPINION
                                       No. 04-12-00756-CR

                                  George Kirk PRENDERGAST,
                                            Appellant

                                               v.
                                          The STATE of
                                       The STATE of Texas,
                                             Appellee

                         From the County Court at Law, Kerr County, Texas
                                    Trial Court No. CR11-1108
                         The Honorable Spencer W. Brown, Judge Presiding

Opinion by:      Catherine Stone, Chief Justice

Sitting:         Catherine Stone, Chief Justice
                 Marialyn Barnard, Justice
                 Rebeca C. Martinez, Justice

Delivered and Filed: July 10, 2013

AFFIRMED

           George Kirk Prendergast was convicted by a jury of a misdemeanor offense of driving

while intoxicated and sentenced by the trial court to twelve months community supervision. On

appeal, Prendergast contends the trial court violated his Sixth Amendment right to counsel by

denying his motion for continuance after his attorney’s motion to withdraw was granted. We

affirm the trial court’s judgment.
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                                  PROCEDURAL BACKGROUND

        On September 10, 2011, Prendergast was arrested for DWI. The magistrate’s form setting

his bond stated, “will hire own attorney.”

        On October 28, 2011, notice was sent setting an arraignment for November 29, 2011;

however, on November 7, 2011, attorney Norman T. Whitlow filed a notice of appearance and a

waiver of arraignment. On that same day, notice was sent setting the case for a pre-trial hearing

on November 22, 2011. Prendergast subsequently filed a motion for continuance which was

granted, resetting the pre-trial hearing to December 6, 2011. On December 6, 2011, the hearing

was reset to January 10, 2012, with a notation that the reset was to enable Whitlow time to watch

the video of the offense. On January 10, 2012, the hearing was reset to January 17, 2012, with a

notation that Whitlow was sick.

        On January 17, 2012, another motion for continuance was filed requesting a reset of the

January 17, 2012 setting because Prendergast “scheduled a business meeting out of the city and

will not be able to have this meeting re-scheduled.” The motion was granted, and the hearing was

reset to January 31, 2012. On January 31, 2012, the hearing was reset to March 6, 2012, with a

notation that the reset was to enable Whitlow time to hire an investigator.

        On March 6, 2012, notice was sent setting a pre-trial hearing for June 13, 2012, jury

selection for July 9, 2012, and jury trial for July 11, 2012. On June 11, 2012, Whitlow filed a

motion to withdraw and a motion for continuance based on the motion to withdraw. On June 13,

2012, the trial court granted the motion to withdraw, and a motions hearing was set for June 19,

2012.

        On June 19, 2012, Prendergast appeared at the hearing pro se. At the hearing, Prendergast

stated that he was requesting a reset so he could hire an attorney. The trial court responded that

six previous pre-trial hearings had already been reset at Prendergast’s request. Prendergast stated
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that he did not have an attorney because his attorney quit, and he requested sixty days to hire a

new attorney. The prosecutor asserted that Prendergast had ample time to retain a new attorney in

time to be ready for the current trial setting, which was one month away. The trial court clarified

that the trial date was July 11, 2012, which was twenty-two days from the date of the hearing.

Prendergast stated that he believed the trial deadline would be too short for a new attorney to look

at the files and be prepared for trial. The trial court stated that the trial setting was going to be left

in place so Prendergast “better go out there and find you a lawyer.” The trial court instructed

Prendergast to tell the new attorney that the county has an open file policy and would give him a

copy of everything they have. The prosecutor responded that he would provide the new attorney

with the file the same day it was requested. In response to Prendergast’s concern about the attorney

having enough time to prepare, the trial court responded, “Well, you hire a lawyer. Let the lawyer

contact these guys. See what they find out.”

        On July 9, 2012, the trial court called the case for trial. Prendergast appeared and stated

that he had retained an attorney “going back over two weeks,” and the attorney’s secretary was

supposed to call the court. When the trial court inquired regarding whether the new attorney would

be ready to go to trial, Prendergast stated that he could not speak for him. When Prendergast

disclosed the name of his attorney, the prosecutor stated, “Judge, if I may. He’s in South Africa

right now. I don’t think he’ll be back for a few weeks.” The trial court responded that the case

was proceeding to trial.

                                              DISCUSSION

        “A defendant in a criminal matter is entitled to be represented by counsel in an adversarial

judicial proceeding.” TEX. CODE CRIM. PROC. ANN. art. 1.051(a) (West Supp. 2012). “If a

nonindigent defendant appears without counsel at a proceeding after having been given a

reasonable opportunity to retain counsel, the court, on 10 days’ notice to the defendant of a
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dispositive setting, may proceed with the matter without securing a written waiver or appointing

counsel.” TEX. CODE CRIM. PROC. ANN. art. 1.051(e) (West Supp. 2012). The record clearly

establishes that Prendergast appeared at the June 19, 2012 hearing without counsel and was given

more than 10 days’ notice of the jury trial setting. Accordingly, the only issue presented on appeal

is whether Prendergast was given a reasonable opportunity to retain counsel. See Tuffiash v. State,

948 S.W.2d 873, 878 (Tex. App.—San Antonio 1997, pet. ref’d) (“When the complaining party’s

attorney withdraws from the case, a continuance should be allowed for a reasonable time to allow

the party to employ other counsel and to enable the new counsel to investigate the case and

adequately prepare for trial or hearing.”)      We review the trial court’s determination that

Prendergast was given a reasonable opportunity to retain counsel under an abuse of discretion

standard. Brent v. State, No. 14-09-00960-CR, 2011 WL 1251330, at *2 (Tex. App.—Houston

[14th Dist.] Apr. 5, 2011, pet. ref’d); see also Kozacki v. Knize, 883 S.W.2d 760, 763 (Tex. App.—

Waco 1994, orig. proceeding) (reviewing whether trial court unreasonably or arbitrarily interfered

with the right to choose counsel under abuse of discretion standard).

       “The right to assistance of counsel contemplates the defendant’s right to obtain assistance

from counsel of the defendant’s choosing.” Gonzalez v. State, 117 S.W.3d 831, 836-37 (Tex.

Crim. App. 2003). “However, the defendant’s right to counsel of choice is not absolute.” Id. at

837. “[W]hile there is a strong presumption in favor of a defendant’s right to retain counsel of

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.” Id. Stated

differently, the right to counsel may not be manipulated so as to obstruct the judicial process or

interfere with the administration of justice. King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App.

2000); Brazil v. State, 665 S.W.2d 561, 562 (Tex. App.—San Antonio 1984, no pet.).



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       The first pretrial hearing in Prendergast’s case was set for November 7, 2011. Prendergast

requested and received numerous resets until March 6, 2012, when notice was sent that pre-trial

was set for June 13, 2012. Prendergast’s retained counsel filed his motion to withdraw on June

11, 2012. On June 13, 2012, the motion was granted, and the hearing was reset to June 19, 2012.

At that time, Prendergast had an additional twenty days to retain new counsel before voir dire was

scheduled to begin on July 9, 2012. Although Prendergast represented to the trial court that he had

retained new counsel, the trial court had not received a notice of appearance and was informed that

the attorney Prendergast allegedly retained was out of the country for two weeks. Given the prior

delays, the time Prendergast was given to retain new counsel, and the absence of any notice of

appearance by the new counsel Prendergast allegedly had retained, the trial court did not abuse its

discretion in determining that Prendergast had been given a reasonable opportunity to retain new

counsel.

                                          CONCLUSION

       The trial court’s judgment is affirmed.

                                                       Catherine Stone, Chief Justice

DO NOT PUBLISH




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