ANN WHITE, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed December 18, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01132-CR
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ANN WHITE, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the County Criminal Court No. 9
Dallas County, Texas
Trial Court Cause No. MB88-04548-K
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O P I N I O N
Before Justices Whitham, Rowe, and Whittington
Opinion By Justice Rowe
                A jury convicted Ann White of the offense of terroristic threat and assessed punishment at 180 days' confinement, probated, and a $1,000 fine. In three points of error, appellant contends that the trial court erred in denying a continuance, that the evidence was insufficient to support the conviction, and that the prosecutor erroneously commented on appellant's election not to testify. We disagree and affirm the judgment of the trial court.
        In her first point of error, appellant argues that the trial court erroneously denied her motion for continuance based on the absence of her retained counsel. The record indicates that appellant's attorney obtained several continuances prior to the trial of this case. A hearing was held on July 11, 1988, apparently concerning a motion for continuance filed by appellant's counsel prior to the motion at issue in this appeal. At that hearing, an attorney for the State noted that the case had previously been passed because appellant's attorney had a pinched nerve. The trial judge then addressed appellant:
                THE COURT: I am going to set this case over one more time. I am going to set it until July 20. It is a special setting. If [appellant's counsel] is unable to appear, I am giving you notice now that you need to hire another attorney within the next day or two or have [appellant's counsel] hire another attorney.
                There shall be no further resets of this case due to [appellant's counsel's] failure to appear. This is it. You will have to try it yourself if [appellant's counsel] or another attorney is not present.
                [APPELLANT]: Yes, sir.
                THE COURT: You understand that?
                [APPELLANT]: Yes, sir. I apologize, your Honor.
                THE COURT: Well, I understand, but it is not necessarily your fault, . . . but at times, you just, if your lawyer that you want can't come, then you need to make other arrangements with regard to that.
                Just a moment, and I will give you a slip with regard to the new setting. You need to take this over to [appellant's counsel's] office, make sure that he makes arrangements to be here or have another attorney here to handle this case.
                [APPELLANT]: Yes, sir.
(Emphasis added.)
        On July 19, one day before trial, another motion for continuance was filed stating that appellant's attorney had accidentally shot himself and that he was temporarily disabled for a period of four to six months. The motion also stated that counsel would not be able to effectively represent appellant because he could not write or take notes. A treating physician's statement was attached to the motion, stating that initial treatment for the gunshot wound occurred on July 13.
        On the day of trial, all parties were present with the exception of appellant's counsel. The following exchange between the trial judge and appellant then occurred:
                THE COURT: . . . [T]he last time we talked, I indicated that your case would be going to trial today, that if [appellant's counsel], your first choice for attorney was not present, you need to be in a position to go ahead and go either with substitute counsel or by yourself. Was that not our conversation?
                [APPELLANT]: Yes, sir.
                THE COURT: You are here today. Someone has brought in a Motion for Continuance on [appellant's counsel's] behalf, he again not being available for trial.
                Now, this is the third, fourth time that [appellant's counsel] has not been available for trial. Do you understand that?
                [APPELLANT]: Yes, your Honor.
                THE COURT: I cannot reset this case again. It arose in August of '86. It is now one year and 11 months old. It must go to trial. You understand that?
                [APPELLANT]: Yes, your Honor.
                THE COURT: Okay. Did you make arrangements for alternative counsel to be present?
                [APPELLANT]: No, sir.
                THE COURT: Is there some reason you did not once you learned last week that [appellant's counsel] would not be available today?
                [APPELLANT]: I didn't know until last night he couldn't be here today.
                THE COURT: You made absolutely no attempts to prepare your case for trial?
                [APPELLANT]: Your Honor, I have already paid [appellant's counsel], and I can't afford to pay another attorney to handle this.
                THE COURT: Well, [appellant's counsel] not being available, didn't he make arrangements to have counsel available for you?
                [APPELLANT]: No, sir.
                THE COURT: Well, he knew last Tuesday that he was not going to be able to come to court, that being the day he was involved in a shooting accident. That is over a week to make alternative arrangements. You're telling me [appellant's counsel] made no arrangements for you?
                [APPELLANT]: No, sir.
                THE COURT: I know his office inquired of the Court Wednesday of last week and was told to make alternative arrangements for you. That was a week ago that his office, the indication was made to his office that alternative arrangements for representation needed to be made if [appellant's counsel] couldn't be here today.
                Okay, since you have appeared in court without counsel and I have denied a further Motion for Continuance on behalf of your counsel, you must be prepared to go to trial.
                [APPELLANT]: Your Honor, I don't have the legal ability to do it. I am not an attorney.
                THE COURT: Well, you have had adequate opportunity to make --
                [APPELLANT]: I can't afford another attorney.
                THE COURT: Well, is there some reason during this last week when [appellant's counsel] knew he wasn't going to be available that he didn't make those arrangements for you?
                [APPELLANT]: I guess not, your Honor.
At this point, the trial judge appointed an attorney who was present in the courtroom as standby counsel for appellant:
                THE COURT: . . . [Y]ou're appointed as stand-by counsel for [appellant]. You are to be available to her throughout the duration of her trial. You will advise her on any legal questions that she has during the course of the trial; and if she at any point wishes you to question any witness or to present any testimony in her behalf, you are to do so for her.
                [STANDBY COUNSEL]: For the record, your Honor, I would object. I have not had any time to prepare for this trial.
                THE COURT: I am not asking you to prepare the case for [appellant]. You are to answer any questions she has with regard to procedure or law. You are to counsel her with regard to the questioning of any witnesses. If there is an objection to one of her questions, you are to advise her how to overcome that objection, if it can be overcome.
                If an objection needs to be made during the course of the trial, you may advise her that an objection needs to be made during the course of the trial. But you are not called upon to prepare the case factually.
                [STANDBY COUNSEL]: Yes, your Honor. I just want the record to be clear that I object to this representation, but I am doing it under court order.
                THE COURT: That's correct.
        Under the code of criminal procedure, 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 1989). The granting or denial of a motion for continuance is vested in the sound discretion of the trial court, and reversal of a judgment is justified only if it is shown that the trial court abused its discretion. Hernandez v. State, 643 S.W.2d 397, 399 (Tex. Crim. App. 1982), cert. denied, 462 U.S. 1144 (1983); Esquivel v. State, 595 S.W.2d 516, 519 (Tex. Crim. App.) (citing article 29.03), cert. denied, 449 U.S. 986 (1980). The issue of abuse of discretion and harm is evaluated by examining the record to determine if the defendant was ably represented by counsel throughout the trial. Jimenez v. State, 717 S.W.2d 1, 2 (Tex. Crim. App. 1986); see Miller v. State, 537 S.W.2d 725, 726 (Tex. Crim. App. 1976), cert. denied, 429 U.S. 1099 (1977); Gray v. State, 477 S.W.2d 635, 638 (Tex. Crim. App. 1972).
        Due process requires only that a defendant be afforded a fair or reasonable opportunity to be represented by chosen counsel. United States v. Mitchell, 777 F.2d 248, 256 (5th Cir. 1985), cert. denied, 476 U.S. 1184 (1986). The right to choose counsel may not be subverted to obstruct orderly court procedure or to interfere with the fair administration of justice. Proper exercise of the trial court's discretion requires a delicate balance between the defendant's due process right to adequate representation by counsel of his choice and the general interest in prompt and efficient administration of justice. Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir. 1978). When a continuance has been requested and denied, the determination of whether the accused was afforded a fair or reasonable opportunity to be represented by chosen counsel depends upon all the surrounding circumstances. Factors to be considered include: (1) the length of the requested delay; (2) whether chosen counsel has an associate who is adequately prepared to try the case; (3) whether other continuances have been requested and granted; (4) the balance of convenience or inconvenience to litigants, witnesses, opposing counsel, and the court; (5) whether the requested delay is for a legitimate reason or dilatory and contrived; (6) other unique factors. Id. at 1324.
        We have examined the entire record, and we note that the standby counsel was available, as ordered, to assist appellant throughout the trial. In fact, standby counsel acted on behalf of appellant throughout the proceedings. There was a noon recess after selection of the jury, and the record shows that standby counsel and appellant engaged in numerous consultations. Standby counsel extensively cross-examined the complaining witness, and some of the cross-examination was obviously inspired by information provided by appellant. He also cross-examined the wife of the complainant and developed some inconsistencies between the versions of events as told by the complainant and his wife. Standby counsel made a number of objections during trial, many of which were sustained. On appellant's behalf, he attempted to call an investigator, but it was determined that the investigator, who had not been subpoeanaed, was unavailable. He called the complainant as an adverse witness and interrogated him further. He made appropriate closing arguments to the jury, both at the guilt/innocence and the punishment stage of the trial. He asked that any jail term or fine be probated, and the jury did probate the jail sentence.
        We conclude that standby counsel acted skillfully and resourcefully on behalf of appellant. There has been no suggestion that he did not ably and competently defend appellant. Under those circumstances, a finding is warranted that the trial court did not abuse its discretion in denying the requested continuance. See Jimenez, 717 S.W.2d at 2; Miller, 537 S.W.2d at 726; Gray, 477 S.W.2d at 638.
        The court of criminal appeals reached the same conclusion in a case with facts that are strikingly similar to the facts of this case. See Young v. State, 163 Tex. Crim. 30, , 288 S.W.2d 116, 117-18 (1956). In Young, an attorney had been retained by the accused. On the day of trial, a motion for continuance was presented in which it was alleged that the defendant's attorney was ill. The motion was apparently granted, and the trial was reset. When the case was again called for trial, a second application for continuance based on the illness of the defendant's attorney was presented and granted. At the time of granting the second postponement, the trial court advised the accused that the case would be tried on July 25. The court told the defendant to obtain someone to represent him, either his chosen counsel or someone else. On July 25, a third motion for continuance was presented, based on the illness of the defendant's retained counsel. The motion alleged that the attorney was being treated for a condition brought about by recent dental work and had been advised not to engage in any activities requiring strain or exertion. The motion was sworn to by the defendant, but there was no doctor's certificate or affidavit of the accused's attorney. The motion also alleged that the defendant had no money or property with which to employ another attorney in whom he had confidence. Id. at 117. The trial court denied the requested continuance and offered to appoint counsel for the accused, which offer was declined. Id. at 118. Based on the record, the court of criminal appeals held that the trial court did not abuse its discretion and that the defendant was not denied the right to be represented by counsel of his choice. Id. In our view, the record in the instant case supports the same conclusion here.
        As to the other factors to be considered, we determine that they weigh in favor of a finding that appellant was not unfairly or unreasonably denied the right to representation by counsel of her choice. The length of the delay requested by appellant was four to six months, a substantial period of time. We think that this fact weighs against appellant, especially in view of the fact that the case against appellant had been pending for almost two years. A related consideration is the fact that appellant had requested and received several other continuances prior to the continuance at issue in this case. This factor also weighs against appellant. With respect to the relative convenience or inconvenience that would have been caused by the requested continuance, we determine that this consideration clearly does not favor appellant. We will assume that appellant would have been convenienced by the continuance. However, virtually all other parties would have been inconvenienced. As noted previously, the continuance at issue in this case was only the last of several continuances requested by appellant. The record shows that the State objected to the granting of the previous continuance, stating that the complaining witness was present and that the State had at all times been ready to proceed with the case. The trial judge's frustration with the series of requested continuances was evident from the record, and he was plainly attempting to get the case tried after considerable prior delays. In our view, the requested continuance would have caused considerable additional inconvenience to the State, its attorneys, its witnesses, and the court.
        As to whether appellant's chosen counsel had an associate who could have tried the case, the record seems to indicate that he did not. We therefore conclude that this factor for consideration weighs in appellant's favor. We also assume that the continuance was requested for a legitimate reason since there is support in the record for this conclusion; therefore, this factor weighs in appellant's favor. With respect to any other relevant factors unique to this case, we have previously discussed the fact that this case had been pending for almost two years when the trial court denied appellant's last request for a continuance. Moreover, the court had clearly warned appellant that the case would definitely go to trial on July 20, when the trial was in fact held. These last two factors do not favor appellant.
        Based on the relevant factors that we have identified, we hold that, under the circumstances of this case, appellant's due process right to adequate representation by counsel of her choice was outweighed by the general interest in the prompt and efficient administration of justice. Appellant was not denied a fair or reasonable opportunity to obtain counsel of her choice. See Mitchell, 777 F.2d at 256-58. We further hold that the trial judge did not abuse his discretion in denying appellant's motion for continuance. See id.; Jimenez, 717 S.W.2d at 2; Miller, 537 S.W.2d at 726; Gray, 477 S.W.2d at 638; Young, 288 S.W.2d at 117-18. We therefore overrule appellant's first point of error.
        In her second point of error, appellant contends that the evidence was insufficient to support the conviction. In reviewing the sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865 (1985). Appellant was charged with terroristic threat, which was alleged to have been committed by threatening to commit an offense involving violence to a person (specifically, aggravated assault with a deadly weapon by pointing a handgun at the complainant) with intent to place the complainant in fear of imminent serious bodily injury. See Tex. Penal Code Ann. § 22.07(a)(2) (Vernon 1989). In order to commit this offense, the accused must have acted with the specific intent to place any person in fear of imminent serious bodily injury. Completion of the offense requires that the accused by his threat sought as a desired reaction to place a person in fear of imminent serious bodily injury. Dues v. State, 634 S.W.2d 304, 305-06 (Tex. Crim. App. [Panel Op.] 1982).
        The evidence, viewed in the light most favorable to the verdict, shows that the complainant and his wife were riding a motorcycle on Highway 175 heading toward Dallas. A car driven by appellant came up very close behind them, within a few feet of the motorcycle's rear fender. The complainant moved to the right lane, and the car passed and swerved sharply to the right immediately in front of the motorcycle and pulled off on the right shoulder. A few minutes later, the car reappeared behind the motorcycle. The complainant slowed down, and the car pulled up beside the motorcycle. Appellant turned on the inside dome light of the car, displayed a handgun, and pointed it at the complainant. The appellant then passed the motorcycle and continued on ahead. The complainant and his wife got the license number of the car, and they observed appellant exit from the highway and park the car at a particular location. The complainant and his wife contacted the police.
        We determine that the evidence was sufficient to allow a trier of fact to find all essential elements of the offense beyond a reasonable doubt. Appellant notes that the complainant and his wife gave inconsistent testimony regarding whether or not they were ever on the service road of the highway. However, the testimony of these two witnesses in this respect was unrelated to the offense itself. Appellant never explains what element of the offense was affected by this conflicting testimony. Granting that the testimony was conflicting, we conclude that the conflict was totally unrelated to the essential elements of the offense. If appellant is suggesting that the conflict adversely affected the credibility of one or both of the witnesses, the suggestion does not help her. The jury, as the judge of the facts and the credibility of the witnesses, was entitled to believe or disbelieve any portion of the witnesses' testimony, and the jury could choose to believe the testimony of witnesses even if their testimony was contradicted. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986), cert. denied, U.S. , 109 S. Ct. 190 (1988). Although appellant does not specifically question the sufficiency of the evidence regarding intent, we note that appellant's intent could be inferred from the conduct of the accused. See Dues, 634 S.W.2d at 305. We overrule appellant's second point of error.
        In her third point of error, appellant argues that the prosecutor erroneously commented on appellant's election not to testify. During the prosecutor's jury argument, the following exchange occurred:
                [PROSECUTOR]: Well, what have we heard from the defense? We have heard --
                [STANDBY COUNSEL]: I object. That is a comment on [appellant's] exercising her right not to testify. "What have we heard from the defense?"
                THE COURT: The defense did present a witness, although an adverse witness, and he may comment. Overrule your objection.
        A prosecutor's comment on a defendant's failure to testify offends both the state and federal constitutions. Johnson v. State, 611 S.W.2d 649, 650 (Tex. Crim. App. [Panel Op.] 1981); cf. Tex. Code Crim Proc. Ann. art. 38.08 (Vernon 1979) (prohibiting such comments). Jury argument does not violate article 38.08, however, unless the language used, examined from the standpoint of the jury, necessarily implies that reference is being made to the accused's election not to testify. Language that might be construed as an implied or indirect allusion to the defendant's exercise of his right not to testify is not improper. In determining the propriety of jury argument in this regard, the test employed is whether the language used was manifestly intended, or was of such character, that the jury would naturally and necessarily take it to be a comment on the accused's election not to testify. See Nickens v. State, 604 S.W.2d 101, 104 (Tex. Crim. App. 1980) (op. on reh'g).
        Since appellant did call a witness for the defense, the prosecutor's reference to what was heard from the defense was an appropriate comment. Moreover, had he not been interrupted by appellant's objection, the prosecutor was apparently going to discuss what had been heard from the defense. In our view, the prosecutor's language referring to evidence elicited by the defense cannot be said to necessarily refer to what had not been elicited from the defendant. Finally, we conclude that the prosecutor's comments were not necessarily improper for the simple reason that the prosecutor was not allowed to finish his comments. Had he been allowed to finish, it might well have become clear that the prosecutor's language did not refer to appellant's choice not to testify. See id. (prosecutor's responsive argument, which was interrupted in midsentence and never finished, was not improper comment on defendant's election not to testify). We overrule appellant's third point of error.
        We affirm the judgment of the trial court.
 
 
 
                                                          
                                                          GORDON ROWE
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
881132F.U05
 
 
File Date[12-18-89]
File Name[881132F]