COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-093-CR
NATHAN FREEMAN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
The trial court adjudicated Appellant Nathan Freeman guilty of aggravated
assault and sentenced him to twenty years’ confinement. In seven points,
Freeman argues that the trial court erred by denying his motion for continuance
and his trial counsel’s motion to withdraw and abused its discretion by finding
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See Tex. R. App. P. 47.4.
true five alleged community supervision violations that “resulted in an increased
punishment assessment by the trial court.” We will affirm.
II. B ACKGROUND
In December 2007, pursuant to a plea bargain agreement, Freeman
waived his right to a jury trial, signed a judicial confession admitting guilt, and
pleaded guilty to the offense of aggravated assault. The trial court accepted
the plea agreement, deferred adjudicating Freeman’s guilt for the offense of
aggravated assault, and placed Freeman on five years’ deferred adjudication
community supervision. The deferred adjudication order contained numerous
terms and conditions of Freeman’s community supervision.
On October 2, 2008, the State filed a motion to proceed with an
adjudication of guilt. The motion alleged that Freeman had violated several
terms and conditions of his community supervision by (1) choking Holly Anne
Tingle with his hand, hitting Tingle’s head with his hand, throwing Tingle on the
floor, and slamming Tingle on the sofa; (2) failing to pay a fine in accordance
with his payment plan for the month of September 2008; (3) failing to pay
court costs and any warrant fee in accordance with his payment plan for the
month of September 2008; (4) failing to pay his court-appointed counsel fee in
accordance with his payment plan for the month of September 2008; (5) failing
to complete four hours per week of community service restitution; (6) failing to
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timely complete a drug and alcohol evaluation; (7) failing to attend counseling
once per week and to continue attending counseling until released with
successful completion; (8) failing to timely submit to a psychological evaluation;
and (9) failing to participate in an anger management course. On March 4,
2009, the day of the hearing on the State’s motion to adjudicate, the trial court
denied Freeman’s motion for continuance and his trial counsel’s motion to
withdraw, both of which were filed that same day. After a hearing on the
motion, the trial court found each of the State’s allegations true, found Freeman
guilty of the offense of aggravated assault, and sentenced him to twenty years’
confinement. Freeman appeals.
III. C OUNSEL OF C HOICE
In his first and second points, Freeman argues that the trial court denied
him his right to the counsel of his own choosing because it denied his motion
for continuance and his trial counsel’s motion to withdraw.
The code of criminal procedure provides 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). The grant or
denial of a motion for continuance is within the sound discretion of the trial
court, and our review of the denial of the motion is limited to whether the trial
court abused that discretion. Renteria v. State, 206 S.W.3d 689, 699 (Tex.
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Crim. App. 2006); Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App.
1996), cert. denied, 522 U.S. 825 (1997).
The federal and Texas constitutions 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 defendant’s right to obtain assistance from counsel of the
defendant’s choosing. 2 Powell v. Alabama, 287 U.S. 45, 53, 53 S. Ct. 55, 58
(1932); Gonzalez, 117 S.W.3d at 836–37. The defendant’s right to the
counsel of his choice, however, is neither unqualified nor absolute; while there
is a strong presumption in favor of a defendant’s right to retain counsel of his
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. Gonzalez, 117 S.W.3d at 837. “An accused . . . may
not use his constitutional right to counsel so as to manipulate the
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Freeman states in his brief that the trial court denied him the right to
counsel of his own choice under the United States Constitution and the Texas
Constitution, but he does not set forth any argument or authority that the
protections afforded by the Texas Constitution differ from the protections
afforded by the United States Constitution. We therefore do not separately
analyze Freeman’s inadequately briefed state constitutional contention. See,
e.g., Obando v. State, No. 14-07-00359-CR, 2008 WL 2133292, at *1 n.1
(Tex. App.—Houston [14th Dist.] May 20, 2008, no pet.) (mem. op., not
designated for publication); see also Tex. R. App. P. 38.1(I).
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commencement of his trial to suit his convenience and pleasure.” Neal v.
State, 689 S.W.2d 420, 427 (Tex. Crim. App. 1984), cert. denied, 474 U.S.
818 (1985).
There is no mechanical test to evaluate when the denial of a continuance
violates the right to select counsel of one’s choice; therefore, we must evaluate
each scenario on a case-by-case basis. See Ex parte Windham, 634 S.W.2d
718, 720 (Tex. Crim. App. 1982). In deciding whether to grant a continuance
because of the absence of the defendant’s choice of counsel, 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 was for legitimate or
contrived reasons; (7) whether the case was complex or simple; (8) whether
the denial of the motion resulted in some identifiable harm to the defendant;
and (9) the quality of legal representation actually provided. Id. It is not our
role to reweigh the factors; instead, we must determine whether the trial court
could reasonably have balanced these factors and concluded that the fair and
efficient administration of justice weighed more heavily than Freeman’s right to
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counsel of his choice. Greene v. State, 124 S.W.3d 789, 794 (Tex.
App.—Houston [1st Dist.] 2003, pet. ref’d).
The State argues that Freeman did not preserve this issue for review.
Assuming without deciding that Freeman preserved this issue for appellate
review, the trial court did not abuse its discretion by denying Freeman’s
motions. The record demonstrates that Freeman requested a continuance to
“find and prepare for hearing with new counsel,” but there is no indication in
the record regarding how long of a delay Freeman was requesting to find and
prepare for the hearing with new counsel. The State filed its motion to proceed
with an adjudication of guilt on October 2, 2008, and Freeman’s trial counsel
filed a notice of representation and appearance the following day, October 3,
2008. The hearing on the State’s motion did not take place until March 4,
2009. Freeman’s trial counsel thus had several months to prepare for the
hearing. There is nothing in the record to show that another competent
attorney was prepared to try the case; indeed, at the hearing on the State’s
motion, Freeman’s trial counsel stated that Freeman had just decided on
“Friday” (likely February 27, 2009) that he wanted to find substitute counsel.
There is little explanation regarding the reason for the requested delay; the
motion for continuance stated that Freeman wanted new counsel, and in the
motion to withdraw, trial counsel reasoned that Freeman “has expressed
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concerns with my dedication to his cause, and he seeks to retain or be
appointed new counsel.” Freeman concedes that the case “was not extremely
difficult to try.” At the hearing on the State’s motion, Freeman’s trial counsel
thoroughly cross-examined the State’s witnesses, questioned Freeman about
the State’s allegations, and argued that the court should take into consideration
Freeman’s “solid work history” and “interest and desire to support his family”
when determining his sentence. No previous continuances had been granted,
but the case had been reset several times, and the motion for continuance and
motion to withdraw were filed on the day of the hearing.
In light of the record, the trial court could reasonably have balanced the
Windham factors and concluded that the fair and efficient administration of
justice weighed more heavily than Freeman’s right to counsel of his choice.
See Windham, 634 S.W.2d at 720; Greene, 124 S.W.3d at 794. Accordingly,
we hold that the trial court did not abuse its discretion by denying Freeman’s
motion for continuance to secure counsel of his choice and trial counsel’s
motion to withdraw. We overrule Freeman’s first and second points.
IV. S ENTENCE
In his third, fourth, fifth, sixth, and seventh points, Freeman argues that
the evidence is insufficient to support—and that the trial court therefore abused
its discretion by finding true—the State’s allegations that he violated his
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community supervision by failing to pay a fine, failing to pay court costs, failing
to pay his court-appointed counsel fee, failing to timely complete a drug and
alcohol evaluation, and failing to timely submit to a psychological evaluation.
But Freeman does not contest the trial court’s decision to adjudicate his guilt;
he does not challenge the trial court’s findings of true to the State’s other four
allegations. Instead, Freeman argues that the trial court’s abuse of discretion
in finding true the above five allegations “resulted in an increased punishment
assessment by the trial court.” According to Freeman, “if the trial court had
correctly found that these five violations [were] not true, a lower punishment
would have been assessed.”
It is well established that proof by a preponderance of the evidence of any
one of the alleged violations of the conditions of community supervision is
sufficient to support a revocation order. Moore v. State, 605 S.W.2d 924, 926
(Tex. Crim. App. [Panel Op.] 1980); Sanchez v. State, 603 S.W.2d 869, 871
(Tex. Crim. App. [Panel Op.] 1980). Further, article 42.12, section 5(b)
provides that, once guilt is adjudicated, the case then proceeds as though
adjudication of guilt was never deferred. Tex. Code Crim. Proc. Ann. art.
42.12, § 5(b) (Vernon Supp. 2009).
Sentencing is within the sound discretion of the trial court. Jackson v.
State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). Generally, as long as a
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sentence is within the statutory range of punishment and has a factual basis in
the record, it will not be disturbed on appeal. Id. Accordingly, once guilt is
adjudicated, a defendant is subject to the entire range of punishment for the
offense. Ditto v. State, 988 S.W.2d 236, 238–39 (Tex. Crim. App. 1999);
Buerger v. State, 60 S.W.3d 358, 365 (Tex. App.—Houston [14th Dist.] 2001,
pet. ref’d).
Aggravated assault is a second degree felony, punishable by
imprisonment for any term of not more than twenty years or less than two
years. Tex. Penal Code Ann. §§ 12.33(a), 22.02(b) (Vernon Supp. 2009).
Here, at the adjudication hearing, a Denton County probation supervisor
testified that Freeman was in violation of each ground alleged by the State in
its motion to adjudicate. Also, Tingle testified that she dated Freeman for two
to three months; that Freeman moved in with her at some point before August
11, 2008; that on August 11, 2008, Freeman “tossed” her around, threw her
on her bed, and choked her with his hand; and that on August 13, 2008,
Freeman slapped her face with a cell phone bill, “tossed” her around on the
ground and on the couch, causing her to hit her head, and hit her ear with his
hand, which he had wrapped in a towel. After considering the evidence
adduced at the hearing, the trial court found the State’s allegations true and
adjudicated Freeman guilty of aggravated assault. Freeman’s twenty-year
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sentence is within the authorized penalty range, and he does not challenge the
trial court’s findings of true to the State’s allegations that he violated his
community supervision by choking Tingle, hitting Tingle, throwing Tingle on the
floor, and slamming Tingle on the sofa; failing to complete community service
restitution; failing to attend counseling; and failing to participate in an anger
management course. Freeman’s argument that he would have received a lesser
sentence had the trial court not found true the five challenged allegations is
unpersuasive because the trial court could have sentenced him to twenty years’
confinement based on its findings of true to the allegations that he does not
challenge. Accordingly, we overrule Freeman’s third, fourth, fifth, sixth, and
seventh points.
V. C ONCLUSION
Having overruled Freeman’s seven points, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: MEIER, DAUPHINOT, and GARDNER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 10, 2009
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