Freddy De La Paz v. State of Texas

• Court: Court of Appeals of Texas
• Decided: August 7, 2008
• Docket: 11-07-00189-CR
• Status: Published

Opinion

Opinion filed August 7, 2008

Opinion filed August 7, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-07-00189-CR

                                                    __________

                                     FREDDY DE LA PAZ, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                         On Appeal from the 106th District Court

                                                         Gaines County, Texas

                                                  Trial Court Cause No. 00-3060

                                             M E M O R A N D U M   O P I N I O N

This is an appeal from a judgment revoking community supervision.  The trial court convicted appellant, upon his plea of guilty, of the state jail felony offense of theft and assessed his punishment at confinement for two years and a $1,000 fine.  The trial court suspended the imposition of the sentence and placed appellant on community supervision for five years.  After the State filed an application to revoke appellant=s community supervision, the trial court modified appellant=s community supervision by, among other things, extending the term of the community supervision for a period of three years.  The State filed an application and an amended application to revoke appellant=s community supervision.  After an evidentiary hearing, the trial court found that appellant had violated the terms and conditions of his community supervision, revoked his community supervision, and imposed a sentence of two years confinement and a fine of $1,000.  In his sole issue on appeal, appellant contends that the trial court abused its discretion in denying his motion for continuance.  We affirm.

On January 11, 2007, the State filed its application to revoke appellant=s community supervision.  On March 29, 2007, the trial court appointed counsel to represent appellant.  In April 2007, the trial court set the State=s application to revoke for hearing on June 1, 2007, at 9:00 a.m.  On May 18, 2007, the State filed its amended application to revoke.

On June 1, 2007, the morning of the hearing, appellant=s counsel, Arthur Aguilar Jr., filed a motion for continuance.  In the motion, Aguilar stated that, on May 31, 2007, appellant=s family had hired counsel, Barry Crutchfield, to represent appellant.  Aguilar also stated that appellant=s family had told him that Crutchfield was in hearings that morning.  Aguilar sought a continuance for thirty days or, alternatively, for one week or, alternatively, for four hours.  The State opposed the motion for continuance.

The trial court heard appellant=s motion for continuance.  Aguilar stated that he had learned from appellant=s family that morning that they had hired Crutchfield.  Crutchfield had not filed a notice of substitution of counsel, and the trial court had not received any communication from Crutchfield or his office indicating that he intended to represent appellant.  The trial court denied appellant=s motion.

We review a trial court=s ruling on a motion for continuance for abuse of discretion.  Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007); Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996).  In a criminal proceeding, the accused has the right to assistance of counsel, and the accused Ashould be afforded a fair opportunity to secure counsel of his own choice.@  Powell v. Alabama, 287 U.S. 45, 53 (1932); Ex parte Windham, 634 S.W.2d 718, 720 (Tex. Crim. App. 1982).  However, the right to obtain counsel of one=s choice is neither unqualified nor absolute.  Windham, 634 S.W.2d at 720.  An accused may not manipulate his or her right to select counsel in a manner that obstructs the orderly procedure of the courts or interferes with the fair administration of justice.  Robles v. State, 577 S.W.2d 699, 704 (Tex. Crim. App. [Panel Op.] 1979); Coleman v. State, 188 S.W.3d 708, 722 (Tex. App.CTyler 2005, pet. ref=d). We review the record to determine whether the trial court could have reasonably concluded that the fair and efficient administration of justice weighed more heavily in favor of denying the motion.  Greene v. State, 124 S.W.3d 789, 794 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d).

At the hearing on appellant=s motion for continuance, the trial court stated that it had reviewed the file.  The trial court also stated a number of observations:  that the revocation hearing had been set on June 1, 2007, for more than a month; that Crutchfield had not notified the court, either in writing or by telephone call, that he intended to represent appellant; and that, if in fact, Crutchfield intended to substitute as appellant=s counsel, Crutchfield=s office could have notified the court that morning.  The trial court concluded that it would not Aallow a delay for something that is basically unconfirmed by any attorney in the file or by any telephone call to the Court or anything prior to the time for the beginning of this.@  In addition to the trial court=s observations, the record demonstrates that Aguilar was prepared to proceed with the hearing and that the trial court=s denial of appellant=s motion for continuance did not result in harm to appellant.  The record does not demonstrate when Crutchfield would have been prepared to proceed with the hearing if he had wanted to represent appellant, and there is no indication in the record that Crutchfield ever contacted the trial court in this case. 

We conclude that the trial court did not act unreasonably in denying appellant=s motion for continuance.  Appellant did not file his motion for continuance until the morning of the hearing.  Crutchfield did not appear with appellant on the morning of the hearing, and Crutchfield did not inform the trial court or appellant=s court-appointed counsel of his willingness to serve as appellant=s counsel.  The trial court did not abuse its discretion in denying appellant=s motion for continuance.  We overrule appellant=s sole issue.

We affirm the trial court=s judgment revoking appellant=s community supervision.

JIM R. WRIGHT

CHIEF JUSTICE

August 7, 2008

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.