|
|
|
|
Opinion filed May 29, 2008
In The
Eleventh Court of Appeals
____________
No. 11-07-00286-CR
__________
GILBERT LEE CONTRERAS, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 358th District Court
Ector County, Texas
Trial Court Cause No. D-32,726
M E M O R A N D U M O P I N I O N
This is an appeal from a judgment adjudicating guilt. Gilbert Lee Contreras orginally entered a plea of guilty to the offense of robbery. Pursuant to the plea bargain agreement, the trial court deferred the adjudication of his guilt, placed him on community supervision for ten years, and assessed a $1,500 fine. After a hearing on the State=s first amended motion to adjudicate, the trial court found that he had violated the terms and conditions of his community supervision, revoked his community supervision, adjudicated his guilt, and assessed his punishment at confinement for eight years and a $1,500 fine. We affirm.
Issue on Appeal
In his sole issue on appeal, appellant contends that the trial court abused its discretion in revoking his community supervision because his trial counsel was only appearing as a messenger for his retained counsel who was in trial in another city at the time. Trial counsel was the only available attorney in his retained counsel=s office, and appellant argues that the attorney was not familiar with his case. Appellant contends that the trial court should have granted his trial counsel=s oral motion for continuance and that the failure to grant the continuance resulted in the denial of his right to counsel.
Adjudication Proceedings
The State alleged that appellant had violated the terms and conditions of his community supervision by committing the offense of assault, by committing the offense of interfering with an emergency call, by failing to make his court-ordered payments, by failing to perform his court-ordered community service, by committing the offense of presenting a false identification to a police officer, and by committing the offense of violating a protective order. The trial court found all of the allegations to be true.
The record from the hearing reflects that Abegail Lopez was the victim of the assault, was the injured party making the emergency call appellant interfered with, and, along with her three children, was protected from contact with appellant under the emergency order. The record further reflects that Lopez had entered the courtroom but had left before the proceedings started. Appellant=s trial counsel stated that she believed appellant knew where Lopez was and that he had access to Lopez. Trial counsel asked for a recess in order that appellant could locate Lopez. The trial court noted in open court that the parties had already been waiting for Lopez for one and one-half hours and stated, ALet=s go.@
Photographs of Lopez=s injuries and testimony concerning how appellant had given a false identity to the police when they answered Lopez=s emergency call were introduced into evidence. A copy of the emergency protective order prohibiting appellant from contacting Lopez and her children, as well as evidence that Lopez=s children provided the police with appellant=s true identity, was also introduced. Appellant=s adult community supervision officer testified that appellant had committed the alleged technical violations.
In her closing arguments, appellant=s trial counsel argued the facts of appellant=s case with familiarity and stated that Lopez had come to her office to sign an affidavit. Trial counsel further argued that she had spoken personally with Lopez, that Lopez had told trial counsel how she allowed appellant to continue to live with her, and that Lopez was in fact Acreating a life together@ with appellant.
Trial Court=s Denial of the Motion for Continuance
A sworn, written motion for continuance must be filed to preserve a complaint for appellate review. Tex. Code Crim. Proc. Ann. arts. 29.03, 29.06, 29.08 (Vernon 2006); Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999); Montoya v. State, 810 S.W.2d 160, 176 (Tex. Crim. App. 1989). Appellant=s arguments are not properly before this court. Moreover, we note that the record does not support appellant=s contentions on appeal that his trial counsel was nothing more than a mere Amessenger@ or that, therefore, his constitutional rights were violated under the holding in United States v. Gonzalez-Lopez, 548 U.S. 140 (2006). Appellant=s issue is overruled.
This Court=s Ruling
The judgment of the trial court is affirmed.
TERRY McCALL
JUSTICE
May 29, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.