Kenneth Charles Saulsberry v. The State of Texas--Appeal from County Court at Law No 2 of Smith County

NO. 12-06-00106-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

KENNETH CHARLES SAULSBERRY, APPEAL FROM THE

APPELLANT

V. COUNTY COURT AT LAW NO. 2 OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Appellant Kenneth Charles Saulsberry was convicted of assault, with a finding of family violence, and sentenced to 360 days of confinement with a $1,000.00 fine. In one issue, Appellant alleges that the trial court abused its discretion by denying his motion for a continuance, thereby depriving him of his right to counsel by forcing him to trial before he had the opportunity to retain counsel. The State did not file a brief. We affirm.

Background

On September 12, 2005, Appellant, a Baptist minister, truck driver, and Hurricane Katrina evacuee,1 allegedly assaulted his wife, LaShonda Saulsberry, by striking her with his hand. Mrs. Saulsberry reported this incident to the Tyler Police Department. On January 5, 2006, Appellant was charged by information with committing an assault involving family violence.

Appellant was arraigned on January 20, 2006. At the arraignment, the trial court asked Appellant if he wished the court to appoint a lawyer for him. Appellant said No, sir. He also informed the trial court that he was in the process of hiring attorney, Kyle Beale. The trial court then confirmed that Appellant was aware of his trial setting, which was February 6, 2006 at 9:00 a.m., and released Appellant on bond.

On Monday, February 6, 2006, Appellant appeared before the trial court and announced that he was not ready to proceed to trial. He stated that he was in the process of retaining Kyle Beale and that he had just started a job as a truck driver. After some discussion, the trial court found that Appellant could afford to hire an attorney and that Appellant s efforts to retain counsel were kind of late.

After allowing Appellant a portion of the morning to retain counsel, the trial court then inquired again about Appellant s efforts to do so. Appellant stated that he had scheduled an appointment to meet with attorney Kyle Beale on Sunday, February 5, 2006 (the day before trial), to pay him his retainer. He stated that he had been delayed on his truck driving route and had not actually gotten into town until 7:00 a.m. on the day of trial. He also stated that he had spoken to several lawyers during the morning and that none would agree to accept his case on such short notice. The trial court informed Appellant that the case would proceed to trial, stating that Appellant should have retained counsel during the time period between his arraignment and his trial date.

Before trial commenced, Appellant made an unsworn oral request for a continuance to retain counsel, which was denied by the trial court. In response to Appellant s request, the trial court stated as follows:

All right, sir. That s why I gave you that delay from the day this case was filed and arraigned and today. I have also found that you have the ability to get your own lawyer, based on the evidence that s been presented to me. So, therefore, sir, the case will go to trial today.

Trial commenced as promised, at which Appellant, out of necessity, acted as his own counsel. The jury found Appellant guilty as charged. Following a sentencing hearing, the trial court assessed punishment at 360 days of confinement with a $1,000.00 fine. This appeal followed.

Denial of the Continuance

In his sole issue, Appellant alleges that the trial court abused its discretion by denying his motion for a continuance, thereby depriving him of his right to counsel by forcing him to trial before he had the opportunity to retain counsel.

Standard of Review

The United States Supreme Court has long recognized that an accused should be afforded a fair opportunity to secure counsel of his own choice. Ex parte Windham, 634 S.W.2d 718, 720 (Tex. Crim. App. 1982) (citing Powell v. Alabama, 287 U.S. 45, [53,] 53 S. Ct. 55, [58,] 77 L. Ed. 158 (1932)). However the right to obtain counsel of one s own choice is neither unqualified nor absolute. Id. (citing United States v. Barrentine, 591 F.2d 1069, [1075] (5th Cir. 1979)). Thus that right must be balanced with a trial court s need for prompt and efficient administration of justice. Id.

The matter of continuance is traditionally within the discretion of the trial court, and it is not every denial of a request for more time that violates due process, even if the party is compelled to defend without counsel. Id. (citing Ungar v. Sarafite, 376 U.S. 575, [589,] 84 S. Ct. 841, [849,] 11 L. Ed. 2d 921 (1964)). It must be remembered that the public interest in the fair and orderly administration of justice may be greater than a defendant s right to have counsel of his choice. Id. (citing United States v. Kitchin, 592 F.2d 900 (5th Cir. 1979)). Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. Id. (quoting Ungar, 376 U.S. at 589, 84 S. Ct. at 849). There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. Ungar, 376 U.S. at 589, 84 S. Ct. at 850; Windham, 634 S.W.2d at 720. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial court at the time the request is denied. Id.

Discussion

In denying Appellant s motion for continuance, the trial court found that Appellant could have afforded to secure counsel in a timely manner. Appellant does not challenge this finding.

[T]he mere fact that the accused appears in court without counsel, and requests a continuance until he can obtain an attorney of his choice, is insufficient, without more, to require the motion for continuance to be automatically granted. Neal v. State, 689 S.W.2d 420, 433 (Tex. Crim. App. 1984) (Teague, J., dissenting). [A]n accused . . . must use diligence [in securing counsel,] and may not use a motion for continuance to prevent the trial from occurring or justice from being administered. Id. Where a financially capable defendant fails to exercise ordinary diligence in arranging for counsel to represent him, he waives his right to representation by counsel. See Stanfield v. State, 152 Tex. Crim. 324, 329-30, 212 S.W.2d 516, 519-20 (1948) (op. on reh g) (holding that, where the defendant had known of his trial date for approximately one month in advance, his failure to arrange for counsel to represent him was a failure to use ordinary diligence and constituted a waiver of his right to representation by counsel2); see also Youngblood v. State, 162 Tex. Crim. 227, 228-29, 283 S.W.2d 952, 953 (1955) (holding that the trial court did not abuse its discretion by denying defendant s motion for continuance where defendant failed to act with diligence in arranging for counsel to represent him). Therefore, we must determine if the record demonstrates that Appellant exercised ordinary diligence in arranging for counsel to represent him. See id.

Here, the record shows that Appellant was aware of his trial date for at least sixteen days in advance. The record also reflects that, on the day of his arraignment, Appellant declined the trial court s offer to appoint an attorney and, stated that he was in the process of hiring one. Further, the trial court made an uncontested finding that Appellant could afford to hire counsel. Finally, Appellant s scheduled meeting to hire an attorney was set for the last day before trial. While Appellant may not have anticipated that he would be delayed on his trucking run, under these facts, we must conclude that Appellant failed to exercise ordinary diligence to obtain counsel. Therefore, Appellant waived his right to representation of counsel by this failure and the trial court did not abuse its discretion by denying Appellant s motion for a continuance. See id.

We overrule Appellant s sole issue.

Disposition

We affirm the judgment of the trial court.

JAMES T. WORTHEN

Chief Justice

Opinion delivered June 20, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

1 The record reflects that Appellant had come to Tyler, Texas as an evacuee only days before the assault in question occurred.

2 In addition to clarifying and confirming this holding from its original opinion, the court of criminal appeals also held on rehearing that, where the defendant had advance knowledge of his trial date for some time, and yet failed to secure counsel, the defendant had failed to exercise ordinary diligence. Id., 152 Tex. Crim. at 329-30, 212 S.W2d at 519-20. The court also noted that Stanfield did not request that counsel be appointed by the trial court and that there was no evidence in the record that indicated Stanfield could not afford counsel. Id., 152 Tex. Crim. at 329, 212 S.W.2d at 519.