Opinion
Nos. 05-07-00149-CR, 05-07-00150-CR, 05-07-00151-CR, 05-07-00152-CR
Opinion Filed April 14, 2008. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the 265th Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F05-50447-SR, F05-50450-SR, F06-86072-VR, F06-86273-SR.
Before Justices WRIGHT, O'NEILL, and FRANCIS. Opinion By Justice WRIGHT.
MEMORANDUM OPINION
Appellant appeals his convictions for possession of methamphetamine, unlawful possession of a firearm by a felon, unlawful possession of diazepam, and unlawful possession of alprazolam. Pursuant to plea agreements, the trial court deferred adjudicating guilt, placed appellant on community supervision for five years, and assessed a $1500 fine in each case. The State later moved to adjudicate guilt, alleging appellant violated the terms of his community supervision. After appellant pleaded true, the trial court adjudicated appellant guilty, and assessed punishment in the four cases at confinement for 45 years, 10 years, 10 years, and 20 years respectively. In a single issue, appellant contends the trial court violated his Sixth Amendment right to counsel of his choice. Initially, we question whether appellant's oral request for additional time to retain counsel adequately preserved this issue for our review. However, if we were to address appellant's sole issue, we would nevertheless conclude the trial court did not violate appellant's right to counsel of his choice. We examine a trial court's ruling denying such a request under an abuse of discretion standard. See King v. State, 29 S.W.3d 556, 565 (Tex. Crim App. 2000) (appointed counsel); Childress v. State, 794 S.W.2d 119, 121 (Tex.App.-Houston [1st Dist.] 1990, pet. ref'd) (retained counsel). We will not disturb the trial court's ruling absent an abuse of discretion. Wenzy v. State, 855 S.W.2d 47, 49 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd). The United States and Texas Constitutions, as well as Texas statute, guarantee a defendant in a criminal proceeding the right to have assistance of counsel. Gonzalez v. State, 117 S.W.3d 831, 836 (Tex.Crim.App. 2003). The right to assistance of counsel contemplates the right to obtain assistance of the defendant's choosing. Id. However, the defendant's right to counsel of choice is not absolute. Id.; Ex parte Windham, 634 S.W.2d 718, 720 (Tex.Crim.App. 1982) (right to counsel of one's own choice is neither absolute nor unqualified). The right must be balanced with the trial court's need for prompt, orderly, effective, and efficient administration of justice. Emerson v. State, 756 S.W.2d 364, 369 (Tex.App.-Houston [14th Dist.] 1988, pet. ref'd). Further, an accused's right to select his own counsel cannot be 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, 784 (Tex.Crim.App. 1976); Thompson v. State, 447 S.W.2d 920, 921 (Tex.Crim.App. 1969). Thus, an accused may not wait until the day of trial to demand different counsel or to request counsel be dismissed so that he may retain other counsel. Webb, 533 S.W.2d at 784; Brown v. State, 464 S.W.2d 134, 135 (Tex.Crim.App. 1971). Further, an accused carries 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). In this case, the record shows the State filed its motion to proceed with adjudication of guilt on September 13, 2006. On January 19, 2007, appellant appeared at the revocation hearing represented by appointed counsel. Before the proceeding began, appellant's counsel informed the trial court that appellant's stepfather told counsel the day before that he was "going to hire an attorney, I believe Bob Wilson" and "they want more time to hire a lawyer. It's [counsel's] understanding . . . [Wilson] has a conflicting date today and he wasn't able to be down here, that he wanted to get a reset date." The trial court then asked about Sandra Reynolds, an attorney "here today that purported to either be hired or talked to the family about being hired." Trial counsel explained to the trial court that Reynolds had spoken with appellant but would not "take [the cases] over." The trial court then denied "the motion for continuance, if that's what that was." Appellant did not complain about trial counsel's assistance and the record does not show any bad faith, insincerity, or disloyalty towards appellant by his trial attorney. Because appellant waited until the day of the adjudication hearing to ask for time to retain a different lawyer and appellant did not indicate any dissatisfaction with counsel that had been appointed for him, we conclude appellant's complaint lacks merit. We overrule appellant's sole issue. Accordingly, we affirm the trial court's judgments.