NO. 07-09-0297-CR 

IN THE COURT OF APPEALS 

FOR THE SEVENTH DISTRICT OF TEXAS 

AT AMARILLO 

PANEL A 

 NOVEMBER 10, 2010 

ROBERT DAVID ARGUIJO, APPELLANT 

v. 

THE STATE OF TEXAS, APPELLEE 

 FROM THE 242ND DISTRICT COURT OF CASTRO COUNTY; 

NO. B3145-0708; HONORABLE EDWARD SELF, JUDGE 

Before CAMPBELL and HANCOCK and PIRTLE, JJ. 

MEMORANDUM OPINION 

On August 28, 2009, Appellant, Robert David Arguijo, was adjudicated guilty of 

the offense of aggravated assault1 and sentenced to ten years confinement and a fine 

of $5,000. In a single issue, Appellant asserts the trial court abused its discretion by 

denying him the opportunity to hire counsel of his choice. We affirm. 

 

1

Tex. Penal Code Ann. § 22.02(a)(2) (Vernon Supp. 2010). 
2 

Background 

 On February 12, 2008, Appellant entered a plea of guilty to the offense of 

aggravated assault. Pursuant to a plea bargain, he was granted five years deferred 

adjudication community supervision. 

 On December 31, 2008, the State filed an Amended Motion to Proceed to 

Adjudication alleging the following violations of the terms and conditions of his 

community supervision: (1) failed to report to the Community Supervision Officer, (2) 

failed to pay restitution, fees, and costs, and (3) failed to complete community service 

hours. On April 2, 2009, following a hearing on the State's amended motion, the trial 

court entered an order continuing Appellant on deferred adjudication community 

supervision and modifying the terms thereof to include, among other conditions, 

Appellant's commitment to the Lubbock County Court Residential Treatment Center. 

 On July 22, 2009, the State filed a subsequent Motion to Proceed to Adjudication

alleging Appellant failed to complete the court-ordered residential treatment center 

program. On August 6, Appellant filed an affidavit of financial status which indicated he 

had no income and requested court-appointed counsel. The same day, the trial court 

appointed Kregg Hukill to represent Appellant and set a hearing on the State's Motion to 

Proceed to Adjudication for August 28. 

 Prior to the commencement of the hearing on August 28, Appellant's counsel 

announced he was ready to proceed but indicated that Appellant wanted more time to 

hire an attorney of his choosing. Thereafter, the following exchange occurred: 
3 

DEFENDANT: Your honor, I would like to ask for more time so I 

could hire my own lawyer. 

COURT: You asked the Court to appoint a lawyer for you on 

 August 6, 2009. You submitted a financial affidavit 

 indicating you had no income. That's why Mr. Hukill 

 was appointed for you. So why do you think you can 

 afford to hire your own lawyer now? 

DEFENDANT: My mother is going to help me. 

COURT: Why didn't she help before? 

DEFENDANT: I had no contact with her at the time. I didn't know if 

 she was going to be able to. 

COURT: How much time is it going to take you to get a lawyer, 

 then? 

DEFENDANT: I think about---I'm not sure, your Honor. 

COURT: Not sure? 

DEFENDANT: No, sir. 

COURT: I will deny your motion for continuance, then. We'll 

 proceed. 

 Appellant signed a stipulation of evidence admitting that all of the facts and 

allegations in the State's motion to adjudicate were true and correct and, thereafter, 

entered a plea of true. The trial court adjudicated Appellant guilty and sentenced him to 

ten years confinement and assessed a $5,000 fine, court costs, restitution and 

attorney's fees--previously assessed but unpaid. This appeal followed. 

Discussion 

Appellant contends the trial court erred by denying a request for a continuance 

so that he could retain counsel of his choosing rather than proceed with the attorney 

who had been appointed to represent him. 
4 

 

Standard of Review 

 Appellant's request to the trial court for more time to retain different counsel and 

his appellate complaint involving the denial of that request is a challenge to the denial of 

a motion for a continuance.2 See Coleman v. State, 188 S.W.3d 708, 722-24 

(Tex.App.--Tyler 2005, pet. ref'd), cert. denied, 549 U.S. 999, 127 S.Ct. 502, 166 

L.Ed.2d 376 (2006). The denial of a motion for continuance is within the sound 

discretion of the trial court, and our review of the denial of such a motion is limited to 

whether the trial court abused that discretion. Renteria v. State, 206 S.W.3d 689, 699 

(Tex.Crim.App. 2006); Janecka v. State, 937 S.W.2d 456, 468 (Tex.Crim.App. 1996), 

cert. denied, 522 U.S. 825, 118 S.Ct. 86, 139 L.Ed.2d 43 (1997). 

 To establish an abuse of discretion, there must be a showing that the defendant 

was actually prejudiced by the denial of his motion. Janeka, 937 S.W.2d at 468. A bare 

assertion of prejudice will not suffice. Gallo v. State, 239 S.W.3d 757, 764 

(Tex.Crim.App. 2007). Rather, "a defendant must demonstrate both that the trial court 

erred in denying the motion and that the lack of a continuance harmed him." Gonzales 

v. State, 304 S.W.3d 838, 843 (Tex.Crim.App. 2010). Examples of specific prejudice 

include unfair surprise, an inability to effectively cross-examine witnesses, and the 

inability to elicit crucial testimony from potential witnesses. Janecka, 937 S.W.2d at 

468. 

2

The Texas Rules of Criminal Procedure provide 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). 
5 

 

Motion for Continuance 

While the Sixth Amendment of the United States Constitution and article I, 

section 10 of the Texas Constitution provide an accused in a criminal prosecution with 

the right to counsel of his or her own choosing, U.S. Const. amend VI; Tex. Const. art. I, 

§ 10,3

 "[t]he choice of counsel of one's choice is not absolute, and may under some 

circumstances be forced to bow to 'the general interest in the prompt and efficient 

administration of justice.'" Rosales v. State, 841 S.W.2d 368, 374 (Tex.Crim.App. 1992) 

(footnote omitted) (quoting Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir. 1978), 

cert. denied, 510 U.S. 949, 114 S.Ct. 393, 126 L.Ed.2d 341 (1993)). 

 A defendant's Sixth Amendment rights are protected when he has effective 

assistance from either retained or appointed counsel; Trammel v. State, 287 S.W.3d 

336, 343 (Tex.App.--Fort Worth 2009, no pet.) (collected cases cited therein), and, once 

the trial court appoints an attorney to represent the defendant, there must be some 

principled reason to justify the replacement of appointed counsel. Buntion v. Harmon, 

827 S.W.2d 945, 949 (Tex.Crim.App. 1992) (orig. proceeding). See Thomas, 550 

S.W.2d at 68.4 A defendant does not have the right to the appointed counsel of his 

choice and the accused's right to select his own counsel cannot be insisted upon or 

manipulated so as to obstruct the orderly procedure in the courts or to interfere with the 

3

The Due Process Clause of the Fourteenth Amendment guarantees the same right to the assistance of 

counsel, including the right to the appointment of counsel in the case of an indigent defendant, in state 

criminal proceedings. Thomas v. State, 550 S.W.2d 64, 67 (Tex.Crim.App. 1977) (citing Argersinger v. 

Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972)). 

4

An accused bears 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). 
6 

 

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, 786 (Tex.Crim.App. 1976). Thus, an accused may not 

wait until the day of trial to demand different counsel or request counsel be dismissed 

so that he may retain other counsel because such a delay interferes with the timely 

administration of justice. Robles v. State, 577 S.W.2d 699, 704 (Tex.Crim.App. [Panel 

Op.] 1979) (collected cases cited therein). 

 The State filed its motion to proceed on July 22, 2009. Fifteen days later, 

Appellant requested that the trial court appoint counsel because he was indigent. The 

same day, the trial court appointed counsel and scheduled a revocation hearing for 

August 28, twenty-two days later. During the interim, Appellant did not seek a 

continuance or new representation. Rather, on the day of the hearing, Appellant 

requested a continuance to hire a new attorney for no other reason than his mother had 

agreed to pay the cost.5

 His mother did not attend the hearing to verify that she would 

be subsidizing new representation, Appellant did not know who his new counsel would 

be and his request for more time was open-ended, i.e., he could not tell the trial court 

how long it would take to find a new attorney. Further, prior to making the request, his 

court-appointed attorney had announced he was ready to proceed and, after the trial 

court denied Appellant's request, ably represented Appellant throughout the remainder 

of the hearing. Appellant makes no showing that the lack of a continuance harmed him. 

Based upon this record, we cannot say the trial court abused its discretion by denying 

Appellant's motion for a continuance. Accordingly, Appellant's sole issue is overruled. 

5

Appellant did not assert, and the record does not reflect, any bad faith, insincerity, or disloyalty towards 

Appellant by his attorney. 
7 

Conclusion

 The trial court’s judgment is affirmed. 

 Patrick A. Pirtle 

 Justice 

Do not publish.