JOHNNY LEROY FORSYTH v. THE STATE OF TEXAS--Appeal from 24th District Court of Calhoun County

NUMBER 13-04-277-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

  JOHNNY LEROY FORSYTH, Appellant,

v.

  THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 24th District Court

of Calhoun County, Texas.

_ _________________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Rodriguez

Appellant, Johnny Leroy Forsyth, was indicted for driving while intoxicatedBthird offense. See Tex. Pen. Code Ann. ' 49.04 (Vernon 2003); id. ' 49.09(b) (Vernon Supp. 2004-05). Waiving a jury trial, appellant pleaded "guilty" and was sentenced to five years in the Texas Department of Criminal Justice, Institutional Division (TDCJ), suspended to five years community supervision. Approximately one year later, the State filed a motion to revoke appellant's community supervision. At the revocation hearing, appellant announced "not ready" and requested a continuance and new counsel. The trial court denied appellant's request for new counsel. Subject to the request for continuance, appellant announced "ready" and entered a plea of "not true" to the allegations. After hearing testimony and argument of counsel, the trial court determined appellant had violated his community supervision. It assessed punishment at the original five years in the TDCJ. Appellant appeals the revocation and sentence.[1]

Concluding the appeal is frivolous, appellant's counsel filed a brief in which he presented two potentially arguable issues. The trial court has certified that this case "is not a plea-bargain case, and the defendant has the right of appeal as to [the] revocation hearing only." See Tex. R. App. P. 25.2(a)(2). We affirm the trial court's judgment.

Because all issues of law are settled, our memorandum opinion only advises the parties of the Court's decision and the basic reasons for it. See id. at 47.4.

I. Compliance with Anders v. California

Appellant's court-appointed counsel filed a brief in which he has concluded that there is no reversible error reflected by the record. See Anders v. California, 386 U.S. 738, 744 (1967). Appellant's brief meets the requirements of Anders. Id. at 744-45; see High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978). In compliance with Anders, counsel presented a professional evaluation of the record and referred this Court to what, in his opinion, are the only possible errors in the record that might arguably support an appeal. See Anders, 386 U.S. at 744; Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); see also High, 573 S.W.2d at 812. Counsel certified to this Court that: (1) he conscientiously reviewed the record and researched the applicable law; (2) in his opinion, this appeal lacks merit and is frivolous; (3) he set forth all points which might arguably support an appeal; (4) he forwarded a copy of the brief to appellant with a letter informing him of the filing of the brief which includes his request to withdraw as counsel; and (5) he informed appellant of his right to access the appellate record and to file a pro se brief. See Anders, 386 U.S. at 744-45; see also Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991) (en banc); High, 573 S.W.2d at 813. More than thirty days have passed, and appellant has not filed any pro se brief. See Anders, 386 U.S. at 744-45; see also High, 573 S.W.2d at 813.

II. Motion for Continuance

As directed by Anders, counsel raises possible error when the trial court denied appellant's motion for continuance.[2] See Tex. Code of Crim. Proc. Ann. art. 29.03 (Vernon 1989) (providing a criminal action may be continued on written motion, upon sufficient cause shown). When the trial court called this case, appellant requested a continuance because he did "not believe [he] had sufficient time" to converse with his attorney.

A revocation hearing may be continued on a showing of good cause. See Tex. Code Crim. Proc. Ann. art. 42.12 ' 21(b) (Vernon Supp. 2004-05). The standard for review of the grant or denial of a continuance is whether the trial court abused its discretion. Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996) (en banc); Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995) (en banc); Cooks v. State, 844 S.W.2d 697, 725 (Tex. Crim. App. 1992) (setting out decision to grant or deny motion for continuance falls within sound discretion of trial judge).

We first note that there is no written sworn motion for continuance in the record. See Tex. Code Crim. Proc. Ann. art. 29.08 (Vernon 1989) (requiring sworn motion for continuance); see also Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999) (en banc) (providing that the denial of an unsworn motion for continuance presents nothing for review). However, a trial court may address an unsworn oral motion for continuance on equitable grounds. See Munoz v. State, 24 S.W.3d 427, 431 (Tex. App.BCorpus Christi 2000, no pet.). Where a motion is based on an equitable ground such as inadequate preparation time, an appellate court will not overturn the trial court's decision unless a clear abuse of discretion is shown. Id. at 431-32; Coleman v. State, 481 S.W.2d 872, 873 (Tex. Crim. App. 1972) (holding no abuse of discretion shown where appellant had one month to prepare case); see Guye v. State, 501 S.W.2d 675, 676 (Tex. Crim. App. 1973) (upholding denial of continuance in rape case where counsel had three weeks to prepare); see also Ex parte Taylor, 531 S.W.2d 333, 334 (Tex. Crim. App. 1975) (continuance should have been granted where counsel had only three hours to prepare for habeas corpus proceeding in connection with extradition matter). Before an abuse of discretion will be found for the denial of a motion to continue, a defendant must show he was prejudiced by counsel's inadequate preparation time. Hubbard v. State, 912 S.W.2d 842, 843 44 (Tex. App.BHouston [14th Dist.] 1995, no pet.) (citing Duhamel v. State, 717 S.W.2d 80, 83 (Tex. Crim. App. 1986) (en banc)).

In this case, appellant's trial counsel was appointed on June 3, 2002, more than two months before the August 15 revocation hearing. During the hearing, appellant's counsel reserved making an opening statement. He cross-examined the probation officer who testified that, in fact, no other program had been provided for treatment of appellant's drug or alcohol use and that many people who have such problems experience some sort of denial. Counsel also cross-examined the program director of the organization that provides treatment at the substance abuse felony program where appellant was assigned. Although the witness's answers were not necessarily beneficial to appellant, counsel cross-examined the witness for several minutes. Counsel then summarized appellant's difficulties and asked the trial court to consider alternatives to revocation and prison.

Based on our review of the record, we agree with counsel that this issue presented for our review is without merit.

III. Motion for New Counsel

Appellate counsel also raises, as a possible issue for our review, the trial court's denial of appellant's motion for new trial counsel. Appellant filed the motion because his appointed trial counsel had advised him that he might not be available to represent him on appeal, and appellant wanted "an attorney who [could] do both the revocation hearing and also immediately work on an appeal if, in fact, the revocation [hearing was unsuccessful]." However, "an accused does not have the right to have his own choice of appointed counsel, and unless he waives his right to counsel and chooses to represent himself, or shows adequate reason for the appointment of new counsel, he must accept the counsel appointed by the court." Aguilar v. State, 651 S.W.2d 822, 823-24 (Tex. App.BHouston [1st Dist.] 1983, no pet.). We find no authority that requires a trial court to appoint a trial attorney who will be available to represent a defendant at a hearing and then to represent him immediately on appeal. Appellant's stated purpose in having the court appoint counsel who would represent him at his revocation hearing and immediately on appeal does not constitute an "adequate" reason for the appointment of new counsel. See id. ("Appellant's stated purpose in having the court appoint counsel who would follow appellant's defense strategy, regardless of counsel's own views, does not constitute an 'adequate' reason for the appointment of new counsel."); see also Davis v. State, 150 S.W.3d 196, 207 (Tex. App.BCorpus Christi 2004, no pet.) (concluding appellant's "expressed dissatisfaction with his trial counsel does not rise to the level of adequate cause for appointment of new counsel").

Based on the above, we agree with counsel that this issue presented for our review is without merit.

IV. Independent Review of Record

The Supreme Court advised appellate courts that upon receiving a Afrivolous appeal@ brief, they must conduct Aa full examination of all the proceeding[s] to decide whether the case is wholly frivolous.@ Penson v. Ohio, 488 U.S. 75, 80 (1988); see Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.BCorpus Christi 2003, no pet.). Accordingly, we have carefully reviewed the record and have found nothing that would arguably support an appeal. See Stafford, 813 S.W.2d at 509. We agree with counsel that the appeal is wholly frivolous and conclude the appeal is without merit.

V. Conclusion

The judgment of the trial court is affirmed. Additionally, in accordance with Anders, appellant's attorney has asked permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744. We grant counsel's motion to withdraw. We order counsel to notify appellant of the disposition of this appeal and of the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (en banc) (per curiam).

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P.47.2(b).

Memorandum Opinion delivered and

filed this 18th day of August, 2005.

[1]Appellant originally filed an untimely notice of appeal on September 25, 2002. This Court dismissed the appeal for want of jurisdiction. See Forsyth v. State, No. 13-02-551-CR, 2002 Tex. App. LEXIS 8446, at *2 (Tex. App.CCorpus Christi Nov. 27, 2002, no pet.) (not designated for publication), writ of habeas corpus granted, Ex parte Johnny Leroy Forsyth, Sr., No. 74,928 (Tex. Crim. App. Mar. 31, 2004) (orig. proceeding) (unpublished). However, on writ of habeas corpus, the court of criminal appeals granted this out-of-time appeal. See Ex parte Forsyth, No. 74,928 (Tex. Crim. App. Mar. 31, 2004).

[2]A court docket entry sets out that appellant's oral motion for continuance was denied.