Opinion
No. 06-05-00119-CR
Submitted: February 1, 2006.
Decided: February 23, 2006. DO NOT PUBLISH.
On Appeal from the 202nd Judicial District Court, Bowie County, Texas, Trial Court No. 04-F-0044-202.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
Felisa McFarland appeals from her conviction pursuant to a guilty plea before the trial court based on three indictments for forgery. Three appeals are presently pending before this Court. When McFarland appeared for jury selection March 1, 2005, Paul Hoover, McFarland's recently retained attorney, filed a motion for continuance alleging insufficient time to prepare for trial. The trial court denied the motion, and McFarland pled guilty to all three charges. On March 14, 2005, the trial court sentenced McFarland to eighteen months' imprisonment for each charge of forgery, with the sentences to run concurrently. McFarland raises identical issues and makes identical arguments in all three of the appeals. McFarland's sole issue on appeal is that the trial court abused its discretion in denying her motion for continuance. We affirm. The trial court's ruling on a motion for continuance is reviewed for abuse of its discretion. Wright v. State, 28 S.W.3d 526, 532 (Tex.Crim.App. 2000); Heiselbetz v. State, 906 S.W.2d 500 (Tex.Crim.App. 1995); see Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 1989). A trial court abuses its discretion when it acts arbitrarily or unreasonably without reference to guiding rules or principles. See Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990). An abuse of discretion is shown only when the trial court's ruling lies outside the "zone of reasonable disagreement." Montgomery, 810 S.W.2d at 391 (op. on reh'g). A motion for continuance must be in writing and sworn to preserve the issue for appellate review. Dewberry v. State, 4 S.W.3d 735, 755 (Tex.Crim.App. 1999). The motion for continuance in this case is in writing and sworn to by McFarland's attorney. The right to assistance of counsel requires that the accused "should 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). The right to obtain counsel of one's own choice, however, is not unqualified or absolute. Windham, 634 S.W.2d at 720. A defendant may not manipulate his or her right to secure counsel of defendant's choice in a manner which obstructs the judicial process or interferes with the administration of justice. Rosales v. State, 841 S.W.2d 368, 374 (Tex.Crim.App. 1992); see King v. State, 29 S.W.3d 556, 566 (Tex.Crim.App. 2000). In reviewing the circumstances of each case to determine whether to grant a continuance, the trial court should weigh the following factors:
(1) the length of the delay requested, (2) whether other continuances were requested and whether they were denied or granted, (3) the length of time in which the accused's counsel had to prepare for trial, (4) whether another competent attorney was prepared to try the case, (5) the balanced convenience or inconvenience to the witnesses, the opposing counsel, and the trial court, (6) whether the delay is for legitimate or contrived reasons, (7) whether the case was complex or simple, (8) whether a denial of the motion resulted in some identifiable harm to the defendant, (9) the quality of legal representation actually provided.Windham, 634 S.W.2d at 720; Greene v. State, 124 S.W.3d 789, 793-94 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). The appellate court should not reweigh the Windham factors, but rather only 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, 124 S.W.3d at 794. When the trial court denied the motion for continuance March 1, 2005, all three charges against McFarland had been pending for over a year. This was McFarland's ninth court appearance in this case. Two of the charges had originally been set for jury trial July 6, 2004. After obtaining one continuance, the case was reset for August 30, 2004, for the purpose of entering a guilty plea. On August 30, 2004, the case was reset for jury trial February 1, 2005. At the trial announcement January 31, 2005, McFarland expressed a desire to hire another attorney to replace her attorney, John Delk. The trial court granted McFarland a four-week continuance to hire another attorney, but informed her that the case would be going to trial in four weeks. The three cases were set for jury trial March 3, 2005. McFarland did not retain another attorney until February 22, 2005 — seven days before trial. Before jury selection March 1, 2005, Paul Hoover, McFarland's recently retained attorney, requested a continuance because he was not sufficiently prepared for trial. When the trial court denied the motion, McFarland pled guilty to all three counts of forgery. McFarland argues that the trial court abused its discretion in denying the motion for a continuance because Hoover had less than seven days to prepare for trial, had other obligations, and had been unable to procure McFarland's file from Delk. In addition, McFarland argues that the complexity of the case and the fact that no motion had been filed contesting the voluntariness of her confession were further reasons her motion for continuance should have been granted. A few of the Windham factors do favor granting of the continuance. As discussed above, Hoover, McFarland's counsel, had been retained only seven days before the hearing. Hoover testified he had not been able to secure the file. He testified that he had a prior obligation the day before jury selection and that the State's attorney had been out of town. Although a few of the Windham factors favor the granting of a continuance, several of the factors weigh against a continuance. Other continuances had been granted, and all three cases had been pending for over a year. In addition, the cases, despite McFarland's claim otherwise, were relatively simple. There is no evidence concerning whether a denial of the motion resulted in some identifiable harm to McFarland. In addition, the inconvenience to the witnesses — who had already been subpoenaed twice — and the inconvenience to the trial court was considerable. As discussed above, the case had already been rescheduled on numerous occasions. Even though Hoover testified he had been unable to contact Delk, there is no evidence that Hoover attempted to obtain discovery through other means. The Bowie County District Attorney's Office had provided voluntary discovery to Delk. While Hoover did attempt to set up a meeting with the State's attorney the day before jury selection, there is no evidence he requested discovery. "A court cannot be expected to be constantly rearranging its schedule, with the subsequent impact upon others appearing before the court, when informed on the day set for trial that it is an inconvenient time for the defendant's counsel." Windham, 634 S.W.2d at 721. Given the prior delays and the tardiness in retaining an attorney, the trial court could have reasonably concluded that the interest in fair and efficient administration of justice outweighed the factors in favor of granting the continuance. Further, to establish an abuse of discretion, there must be a showing that the defendant was actually prejudiced by the denial of his or her motion. Janecka v. State, 937 S.W.2d 456, 468 (Tex.Crim.App. 1996); Heiselbetz, 906 S.W.2d at 511. "The bare assertion that counsel did not have adequate time to interview the State's potential witnesses does not alone establish prejudice." Heiselbetz, 906 S.W.2d at 512. McFarland criticizes her court-appointed attorney for not filing a pretrial motion challenging the voluntariness of her confession. However, McFarland fails to demonstrate that she was prejudiced by the inability of her retained counsel to file a motion challenging the voluntariness of the confession. McFarland has failed to advance any arguments concerning why her confession was not voluntary and could have challenged the voluntariness of the confession at trial, if the case had proceeded to trial. Further, McFarland has provided no evidence concerning harm. In view of the entirety of the circumstances, we are unable to conclude the trial court abused its discretion. For the reasons stated, we affirm.
We note that nonjurisdictional errors may be waived by a plea of guilty. The extent of the waiver depends on whether a plea of guilty was made pursuant to plea negotiations. Compare Young v. State, 8 S.W.3d 656, 666-67 (Tex.Crim.App. 2000), with Tex.R.App.P. 25.2(b). The certification of McFarland's right to appeal and the judgment indicate that this case is a plea bargain case, but the reporter's record indicates McFarland entered an open plea of guilty. The record does not contain a written negotiated plea agreement other than an unsigned agreed punishment recommendation. The unsigned document is blank except for a notation that the "[d]efendant reserves the right to appeal the denial of [her] motion for continuance." At sentencing, McFarland claimed that she had a prior negotiated plea agreement for eighteen months' confinement, but the State claimed it had withdrawn that offer because of the discovery of additional criminal history. Under the Helms v. State, 484 S.W.2d 925 (Tex.Crim.App. 1972), rule, as modified by Young, a defendant's right to challenge nonjurisdictional errors occurring before his or her guilty or nolo contendere plea is waived "only when the judgment of guilt was rendered independent of, and is not supported by, the error." Young, 8 S.W.3d at 666-67. While both bargaining and nonbargaining defendants can appeal rulings on written pretrial motions and jurisdictional issues, "a non-bargaining defendant pleading guilty may be able to appeal an error not raised on a written pre-trial motion, if it is otherwise preserved and survives Young." Monreal v. State, 99 S.W.3d 615, 619-20 (Tex.Crim.App. 2003). Because any waiver issue has not been briefed and the motion for continuance was raised by a written pretrial motion, we will address this case on the merits.
See McFarland v. State, Nos. 06-05-00120-CR and 06-05-00121-CR.
McFarland was indicted for the felony offense of forgery in cause number 02F0583-202 on September 28, 2002. On Februrary 5, 2004, McFarland was indicted in cause numbers 04F0044-202 and 04F0045-202.
The State provided notice of intent to try cause numbers 04F0044-202 and 04F0045-202 together on June 8, 2004.
We note that McFarland buttresses her argument by directing our attention to Article 1.051(e) of the Texas Code of Criminal Procedure. McFarland argues the continuance should have been granted because Article 1.051(e) requires a court-appointed attorney be provided with ten days to prepare for trial. Since her retained attorney only had seven days, McFarland contends the trial court abused its discretion in denying the motion. In addition, McFarland argues she "is being punished, because in her rush to obtain counsel, she hired one instead of waiting for another appointed counsel." However, McFarland had already been represented by appointed counsel for over a year, and the record does not contain any evidence which would require the trial court to appoint another attorney. An indigent defendant's right to counsel does not require the trial court to appoint a counsel agreeable to the accused. King, 29 S.W.3d at 566. Article 1.051(e) provides as follows:
An 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. If a nonindigent defendant or an indigent defendant who has refused appointed counsel in order to retain private counsel 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 dispositive setting, may proceed with the matter without securing a written waiver or appointing counsel.
Tex. Code Crim. Proc. Ann. art. 1.051(e) (Vernon 2005). McFarland does not argue that Article 1.051(e) was violated, and the record affirmatively indicates that McFarland was given at least twenty-nine days' notice.
Hoover testified Delk had been unreachable because Delk's wife had been in the hospital.