Michael Salomon Obando v. State

Affirmed and Memorandum Opinion filed May 20, 2008 Affirmed and Memorandum Opinion filed May 20, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-07-00359-CR ____________ MICHAEL SALOMON OBANDO, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 262nd District Court Harris County, Texas Trial Court Cause No. 1090031 M E M O R A N D U M   O P I N I O N Michael Salomon Obando was convicted of murder and sentenced to confinement for 45 years in the Texas Department of Criminal Justice, Institutional Division. Obando challenges his conviction, asserting that he was denied the right to retain counsel of his choosing in violation of the United States Constitution, the Texas Constitution, and the Texas Code of Criminal Procedure. We affirm. Obando was charged by indictment with the felony offense of murder. He requested appointment of counsel, and subsequently filed a motion to substitute counsel, naming Juan Guerra as the attorney of record on November 21, 2006. Obando entered a plea of not guilty and trial was set for April 23, 2007, with voir dire to commence on April 20, 2007. Guerra filed various documents on behalf of Obando, including two agreed settings for arraignment, an agreed setting for disposition, a request for notice of state=s intention to use evidence of extraneous offenses at trial, as well as motions for discovery of exculpatory and mitigating evidence, for discovery of punishment evidence, and a motion to suppress. Additionally, Guerra appeared as counsel for Obando on multiple occasions prior to April, 2007. On April 13, 2007, Guerra and Bergquist filed a motion for continuance, citing a scheduling conflict between this trial and a pretrial hearing in federal court. Both Bergquist and Guerra are partners at the law firm of Bergquist, Guerra & Farrah. The motion for continuance was the first document in the record also signed by Bergquist. It was verified by the notarized statement of Bergquist, stating: AI am the attorney of record along with Juan L. Guerra, Jr., for Michael Obando and have been so at all material times relevant to this proceeding.@ The court denied this motion on April 17, 2007, and subsequently appointed another defense attorney to assist Obando=s counsel. On April 20, 2007, prior to voir dire, Guerra once again raised the continuance issue. Guerra informed the court that he was to be second chair at trial with Bergquist designated as lead counsel. Bergquist could not attend the entire trial due to a pretrial hearing in federal court. However, Obando requested that both Guerra and Bergquist attend the trial in its entirety. The court responded that there had been no such designation of lead counsel and that Guerra had made the first appearance. The court once again denied the motion for continuance. Guerra represented Obando at trial, assisted by the defense attorney the court had appointed. The jury found Obando guilty of murder and found that he did not cause the death of the complainant while under the influence of sudden passion arising from an adequate cause. The jury then assessed punishment at 45 years confinement. The trial court sentenced Obando accordingly. Obando timely filed this appeal. The Sixth Amendment of the United States Constitution requires that A[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel.@ U.S. Const. amend. VI.[1] This includes the right of a defendant to choose who will represent him, when the defendant does not require appointed counsel. See Wheat v. United States, 486 U.S. 153, 159 (1980). AWhile the right to select and be represented by one=s preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers. Id. (citations omitted). The right to counsel of choice is not unlimited. Id. A defendant may not insist on an attorney he cannot afford, an attorney who has a conflict, or an attorney who declines to represent the defendant for other reasons. Id. Additionally, the right to counsel of choice Amust be balanced with a trial court=s need for prompt and efficient administration of justice.@ Ex parte Windham, 634 S.W.2d 718, 720 (Tex. Crim. App. 1982)(en banc). When evaluating this claim, it is necessary to distinguish between the right to effective assistance of counsel and the right to select counsel of one=s choice. A violation of the right to effective assistance of counsel requires a defendant to establish prejudice. United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 2562-63, 165 L.Ed.2d 409 (2006). When evaluating an ineffective assistance of counsel claim, the Texas Court of Criminal Appeals held that Aa judgment will not be reversed because of the refusal to postpone a case on account of the absence of leading counsel where the record shows that associate counsel ably represented the defendant.@ McKnight v. State, 432 S.W.2d 69, 71 (Tex. Crim. App. 1968) (citations omitted). Similarly, the Texas Court of Criminal Appeals held that the trial court did not abuse its discretion in denying appellant=s motion for continuance when his retained counsel was involved in another trial in a different part of the state. Thrush v. State, 515 S.W.2d 122, 123 (Tex. Crim. App. 1974). Since retained counsel Awas allowed to select a convenient date for the trial of this case by the trial judge, and since appellant was represented at trial by [his] law partner,@ the trial court did not abuse its discretion in denying the motion. Id. In contrast, when evaluating the right to select counsel of one=s choice, when we conclude that the trial court wrongly denied this right, Ait is unnecessary to conduct an ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation. Deprivation of the right is >complete= when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of representation he received.@ Gonzalez-Lopez,126 S.Ct. 2557, at 2563. There is no mechanical test to evaluate when the denial of a continuance violates the right to select counsel of one=s choice, therefore we must evaluate each scenario on a case-by-case basis. See Ex parte Windam, 634 S.W.2d at 720 (holding that the trial court did not abuse its discretion and deny petitioner his right to counsel of choice by overruling petitioner=s motion for continuance when the motion was made on the day set for trial, the case was not complex, and counsel provided capable and effective representation). The Texas Court of Criminal Appeals set out several factors to consider, including: (1) the length of the delay requested, (2) whether other continuances were requested and whether they were denied or granted, (3) the length of time in which the accused=s counsel had to prepare for trial, (4) whether another competent attorney was prepared to try the case, (5) the balanced convenience or inconvenience to the witnesses, the opposing counsel, and the trial court, (6) whether the delay is for legitimate or contrived reasons, (7) whether the case was complex or simple, (8) whether a denial of the motion resulted in some identifiable harm to the defendant, [and] (9) the quality of legal representation actually provided. Id. The court also noted that Athe 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. (citations omitted). The State contends that Obando presents nothing for review because he failed to preserve the error and failed to adequately brief his state claim. Assuming Obando did preserve error and adequately brief his claim, the claim still will not succeed because the trial court did not abuse its discretion in denying Obando=s motion for continuance. Although Obando=s counsel had not requested any continuances prior to April 13, 2007, and the delay was requested for a seemingly legitimate reason, we conclude that the trial court did not abuse its discretion in overruling the motion. Guerra had been counsel of record for Obando since November, 2006. As such, he had adequate time to prepare for trial set for April, 2007. Guerra filed various documents on behalf of Obando, and continued to represented Obando throughout the trial without Bergquist. Although Obando contends that Bergquist was to be lead counsel, we find so such designation in the record. Additionally, Guerra was assisted at trial by another defense attorney who was appointed by the trial court after the motion for continuance. Obando has not proven any identifiable harm resulting from the denial of the motion for continuance, nor has he proven that the quality of legal representation provided was insufficient. Although Obando requested that both Guerra and Bergquist represent him during the entire trial, we must balance Obando=s preferences with the fair and orderly administration of justice. See id. Based on the foregoing, we affirm the judgment of the trial court. /s/ Jeff Brown Justice Judgment rendered and Memorandum Opinion filed May 20, 2008. Panel consists of Justices Yates, Guzman, and Brown. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Obando inadequately briefed his state constitutional claim by failing to provide any argument or authority regarding how the protections afforded by the Texas Constitution differ from the protections afforded by the United States Constitution. Therefore, we will not review his state constitutional claim. Tex. R. App. P. 38.1(h); McCambridge v. State, 712 S.W.2d 499, 502 n. 9 (Tex. Crim. App. 1986) (explaining that A[a]ttorneys, when briefing constitutional questions, should carefully separate federal and state issues into separate grounds and provide substantive analysis or argument on each separate ground. If sufficient distinction between state and federal constitutional grounds is not provided by counsel, this Court may overrule the ground as multifarious.@); Johnson v. State, 853 S.W.2d 527, 533 (Tex. Crim. App. 1992), cert. denied, 114 S.Ct. 154 (1993) (holding that although appellant claimed that there was a violation of the Texas Constitution, Aappellant proffers no argument or authority as to the protection offered by the Texas Constitution or how that protection differs from the protection guaranteed by the U.S. Constitution. We decline to pursue appellant=s Texas Constitutional arguments for him.@).