NUMBER 13-14-00177-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MICHAEL ADAM ALVAREZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of DeWitt County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Perkes and Longoria
Memorandum Opinion by Chief Justice Valdez
Appellant, Michael Adam Alvarez, appeals the trial court’s revocation of his
community supervision and adjudication of guilt for aggravated assault with a deadly
weapon, punishable as a first-degree felony pursuant to the habitual offender statute.
See TEX. PENAL CODE ANN. §§ 22.02 (West, Westlaw through 2013 3d C.S.), 12.42(b)
(West, Westlaw through 2013 3d C.S.). By one issue, appellant contends that the trial
court violated his Sixth Amendment right to consult with counsel by forcing his
adjudication hearing to proceed after he indicated he was feeling ill. We affirm.
I. BACKGROUND
On May 31, 2011, Alvarez pleaded guilty to aggravated assault with a deadly
weapon, punishable as a first-degree felony pursuant to the habitual offender statute.
See id. §§ 22.02, 12.42(b). As a result of a plea agreement, Alvarez received eight years
of deferred adjudication community supervision. On January 9, 2014, the State filed a
motion to revoke community supervision and adjudicate guilt, alleging that Alvarez had
committed multiple violations of the terms of his community supervision. The trial court
held a hearing on the State’s motion on February 27, 2014, at which appellant pleaded
“not true” to all of the allegations. After hearing testimony from the State’s witnesses, the
trial court found multiple allegations true, revoked Alvarez’s community supervision, and
assessed punishment at thirty-four years’ imprisonment. This appeal followed.
II. DISCUSSION
During the hearing, Alvarez’s trial counsel initially informed the court that Alvarez
had advised him that “he does not want to go forward with this. I’ve told him unless we
do some kind of plea bargain we’re going forward and I’m ready.” However, after the
State called its first witness, trial counsel notified the trial court that Alvarez had requested
to talk to the trial court about his medical condition. Alvarez then addressed the trial court,
stating that he was on medication for a slipped disc and was very dizzy. Alvarez
explained, “I got a slipped disc and a pinched nerve and it’s killing me right now. I just
want to get this over.” The trial court responded,
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The problem is that we have all kind of people that have traveled here today
for this hearing, people that have been subpoenaed to be here, and I just
want the record to reflect that, you know, I am able to observe you and your
condition. I see that you are in a wheelchair, but you were able to get up
and you were able to get into your chair and sit next to [your trial attorney]
and, from my observations, I think you’re capable of going forward. I’d like
to go forward with the hearing . . . .
Neither Alvarez nor his attorney ever requested a continuance.
Appellant argues that the trial court should have granted a continuance or a recess
to allow Alvarez to regain his health so that he could participate at trial. See TEX. CODE
CRIM. PROC. ANN. art. 29.03 (West, Westlaw through 2013 3d C.S.) (“A criminal action
may be continued on the written motion of the State or of the defendant, upon sufficient
cause shown; which cause shall be fully set forth in the motion.”). Appellant contends
that because of his illness, he was unable to effectively communicate with his trial
attorney; therefore, by proceeding with the hearing, the trial court violated his Sixth
Amendment right to counsel. See U.S. CONST. amend. VI. We disagree.
We review the granting or denying of a motion for continuance using an abuse of
discretion standard. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007). The
only case cited by appellant in support of his argument relates to whether a trial court
abuses its discretion by failing to grant a continuance when trial counsel is not prepared
for trial. See Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995) (en banc)
(“Where denial of a continuance has resulted in representation by counsel who was not
prepared, we have not hesitated to declare an abuse of discretion.”).
In the present case, Alvarez’s trial counsel never informed the trial court that he
could not communicate with Alvarez and, in fact, told the trial court that he was ready to
proceed. And, while addressing the court, Alvarez specifically requested that he wanted
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“to get this over.” Moreover, the trial court determined on the record that, from its
observations, Alvarez was capable of going forward. Nothing in the record indicates that
Alvarez was unable to effectively communicate with his trial attorney or even that he or
his attorney believed he was incapable of doing so. Accordingly, we hold that the trial
court did not abuse its discretion by failing to grant a continuance and did not violate
Alvarez’s Sixth Amendment right to counsel. See U.S. CONST. amend. VI; Gallo, 239
S.W.3d at, 764.
We overrule Alvarez’s sole issue.
III. CONCLUSION
We affirm the trial court’s judgment.
/s/ Rogelio Valdez
Rogelio Valdez
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
29th day of August, 2014.
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Michael Adam Alvarez v. State
Combined Opinion