Dwayne Corona v. The State of Texas--Appeal from 290th Judicial District Court of Bexar County

MEMORANDUM OPINION
Nos. 04-02-00861-CR & 04-02-00862-CR
Dwayne CORONA,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court Nos. 2002-CR-4128 & 2002-CR-4129
Honorable Sharon MacRae, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: January 14, 2004

AFFIRMED

Dwayne Corona appeals the trial court's judgments convicting him of aggravated assault and murder. We affirm.

1. Corona first argues he was denied effective assistance of counsel because his trial counsel did not meet with him for the first time until three days before trial, (1) failed to adequately investigate his case, failed to present witnesses on his behalf during trial and at sentencing, failed to file motions, and failed to make an opening statement. However, the record is silent as to the pretrial investigation undertaken by Corona's trial counsel, as well as her reasoning in declining to make an opening statement, present witnesses, or obtain rulings on her numerous pre-trial motions. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003) (explaining that burden of establishing ineffective assistance of counsel cannot be met if "the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions") (quoting Mallet v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001)). And, as Corona concedes, the record establishes his trial attorney did communicate with him at least once prior to trial. See Tex. Code Crim. Proc. Ann. art. 26.04(b)(3) (Vernon Supp. 2002). The record also establishes that Corona's trial counsel cross-examined many of the State's witnesses and presented a relevant closing argument, all in an apparent effort to discredit the testimony of the State's eyewitnesses. Based on the totality of the record, we conclude that Corona has failed to overcome the presumption that his trial counsel provided reasonably effective assistance. See Rylander, 101 S.W.3d at 110-11.

2. Corona next argues the trial court erred "by not allowing [him] a hearing on his [pretrial pro se motion to dismiss his court-appointed attorney] and by not ensuring [his] rights as required by article 26.04 of the Texas Code of Criminal Procedure and the procedures adopted therefrom" in violation of his federal and state constitutional rights to procedural and substantive due process. We again disagree. Corona did not receive a hearing on his motion to dismiss because he did not request one. See Cain v. State, 976 S.W.2d 228, 236 (Tex. App.-San Antonio 1998, no pet.). And Corona waived his complaint under article 26.04 by failing to inform the court that his attorney was not following article 26.04 procedures either in his written motion to dismiss or on the first day of trial when he inquired about the status of his motion. See Tex. R. App. P. 33.1. Moreover, even if Corona had established a violation of article 26.04(j)(1), dismissal is discretionary under article 26.04(k).

3. Corona next argues the trial court reversibly erred "by not initiating an inquiry when the trial court knew or reasonably should have known that a conflict of interest existed between [him] and [his] attorney." We disagree.

If there is a conflict of interest between an attorney and her client, the client "may, upon a proper showing, be entitled to a change of counsel." Garner v. State, 864 S.W.2d 92, 98-99 (Tex. App.-Houston [1st Dist.] 1993, pet. ref'd). However, "the accused must bring the matter to the trial court's attention, and must successfully bear the burden of proving that he is entitled to a change of counsel." Id. at 99.

In support of his argument that an "inability to communicate" between an attorney and his client should be considered a conflict of interest, Corona cites Smith v. Lockhart, 923 F.2d 1314 (8th Cir. 1991). However, in Smith, the court was concerned with a demonstrated actual conflict of interest that arose because there was a pending "federal lawsuit pitting the defendant against his attorney." Id. at 1321. In contrast, Corona's motion to dismiss did not notify the trial court there was an actual or potential conflict of interest; it merely alleged that Corona's attorney was not adequately preparing for trial and was no longer trusted by Corona, so that their relationship was "irrepa[r]able [and] antagonistic[.]" Corona fails to demonstrate how his alleged antagonism with his attorney constitutes a conflict of interest. Therefore, the trial court was under no obligation to initiate an inquiry. See Garner, 864 S.W.2d at 99.

4. Corona also argues the evidence is factually insufficient to support the jury's verdicts, because there is "no physical evidence." We again disagree. Physical evidence is not required. See Shavers v. State, 881 S.W.2d 67, 73 (Tex. App.-Dallas 1994, no pet.) (upholding murder conviction even though physical evidence was "sparse" because other evidence linked appellant to the offense). Other direct evidence, such as eyewitness identification and victim testimony, is generally sufficient to establish the necessary link between an accused and an alleged crime. See, e.g., Loserth v. State, 985 S.W.2d 536, 539 (Tex. App.-San Antonio 1998, pet. ref'd) (eyewitness identification); Smith v. State, 961 S.W.2d 501, 504 (Tex. App.-San Antonio 1997, no pet.) (victim's testimony).

Here, the State presented the testimony of three eyewitnesses, including the testimony of one of the victims, that Corona shot the two victims; and, despite minor inconsistencies in the witnesses' testimony, none equivocated in their identification of Corona. Corona argues the eyewitness testimony is insufficient because it is "contradictory [and] inherently suspect [and] ... unreliable." However, we defer to the jury's determinations "concerning the weight and credibility of the evidence." Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000); see Murray v. State, 24 S.W.3d 881, 887 (Tex. App.-Waco 2000, pet. ref'd) (holding that differences in the testimony of an outcry witness, the victim, and the investigating officer "not sufficient ... to completely discount the victim's direct testimony"). Moreover, while Corona cross-examined each of these witnesses, he did not present any contradictory evidence.

The State also presented the testimony of Corona's cell mate, Martin Sean Coons. Coons testified that Corona told him he was accused of "aggravated assault and a homicide" because "he had shot two individuals at the house across the street from his mother's;" he confronted four men who lived down the street from his mother's house because they were making fun of his little brother's weight and had "verbally abused" his mother; and "[h]e shot one man in the torso twice. He shot another man twice in the chest, and then fired a third shot into the first man. And then finished - there was two - there's two people by the truck, the two that he shot, and then there's two people by the house. He shot the last shot of the six-shot revolver at the two people and then - that's what he did." Coons further testified that he relayed this information to the police voluntarily and declined to accept the reward money. Coons' testimony was admissible and is properly considered in a sufficiency review. See Baldree v. State, 784 S.W.2d 676, 686 (Tex. Crim. App. 1989), cert. denied, 495 U.S. 940 (1990); Shavers, 881 S.W.2d at 73. We conclude the evidence is factually sufficient to support the jury's verdict and affirm the trial court's judgments.

Sarah B. Duncan, Justice

Do not publish

1. Corona supports his position with jail visitation logs. However, Corona did not obtain and file the logs until after the State's appellate brief was filed. At the request of Corona's appellate counsel, the logs were then included in a supplemental clerk's record filed with this court. The logs were not before the trial court and neither the State nor Corona's trial counsel has had an opportunity to respond to Corona's interpretation of the logs. The logs are therefore not properly part of the appellate record. See Pena v. State, 932 S.W.2d 33, 35 (Tex. App.-El Paso 1996, no pet.) (evidence not made part of trial record at motion for new trial hearing or otherwise is not properly part of appellate record); Callaway v. State, 818 S.W.2d 816, 823 (Tex. App.-Amarillo 1991, pet. ref'd) (evidence presented in support of an untimely motion for new trial is not properly part of record on appeal and will not be considered); see also Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003) (direct appeal is generally not the means to raise an ineffective assistance claim because trial counsel has not had opportunity to respond to contentions).