                             In the
                        Court of Appeals
                Second Appellate District of Texas
                         at Fort Worth
                       ___________________________

                            No. 02-18-00458-CR
                       ___________________________

   SERGIO MARTINEZ CORONA AKA SERIGO MARTINEZ, Appellant

                                      V.

                           THE STATE OF TEXAS


                   On Appeal from the 355th District Court
                           Hood County, Texas
                         Trial Court No. CR13984


Before Birdwell and Womack, JJ.; and Lee Ann Dauphinot (Senior Justice, Retired,
                          Sitting by Assignment).
                  Memorandum Opinion by Justice Dauphinot
                             MEMORANDUM OPINION

       Upon his plea of not guilty, a jury convicted Appellant Sergio Martinez Corona

of Assault Family Violence with a prior conviction and assessed his punishment at 5

years’ confinement in the Institutional Division of the Texas Department of Criminal

Justice.1     The jury also assessed a fine of $10,000. The trial court sentenced him

accordingly. The complainant was Christine Mercado.

       Appellant brings a single issue on appeal, arguing that trial counsel rendered

ineffective assistance for failing to investigate or offer mitigation evidence during the

punishment phase of the trial. Considering the record as a whole, and applying the

appropriate standard of review, we hold Appellant has failed to establish that his trial

counsel rendered ineffective assistance.

Brief Facts

       Appellant, who had previously been convicted of assaulting his mother in

California, and Christine had a volatile relationship. Officer Martinez testified that the

police went to Appellant and Christine’s residence on a past occasion in March 2017

after Appellant reported that Christine had assaulted him, causing injuries to the left

side of his body and the right side of his face. In August 2017, Officer Martinez was

called to the residence again in response to a report that Appellant had assaulted

Christine.



       1
            Tex. Penal Code Ann. § 22.01(b)(2)(A).

                                             2
       When Officer Martinez arrived, he saw Christine and Appellant’s minor

daughter, V.M., on the front porch, crying. Christine told Officer Martinez that

Appellant had choked her, kicked her, and gotten on top of her. V.M. testified she

lived with Appellant, her sister K.M., and Christine. V.M. saw Appellant sitting on

top of Christine’s hips. Christine looked as though she had been crying, and her neck

was red as though Appellant had been choking her. Appellant told V.M. not to call

the police because he would be arrested. She also heard him say he liked the way it

felt to choke Christine and that he would do it again. When Appellant began choking

Christine again, V.M. pushed him off her. Christine called 911, and Appellant broke

through the door and she began screaming again. Appellant left the house, and V.M.

locked all the doors.

       Christine testified that she was married to Appellant and had come to the

house to pack her things and leave when he assaulted her. She and Appellant argued,

and then Appellant left with V.M. When they returned, Appellant attacked her. She

described the assault in detail and suggested that Appellant refused to allow her to

leave and also that he told her he was going to leave to live with his girlfriend and

V.M.

       Appellant testified he and Christine had argued about the offer to sell the house

and that he suspected she had sold the house to two different parties and he did not

want to be a part of it. He testified Christine had been violent toward him and

thrown things at him on the day she said he had assaulted her. He testified that V.M.

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had lied because Christine had been abusive toward him and V.M. was afraid of her.

He admitted his prior conviction, but denied strangling Christine or getting on top of

her.

Performance of Counsel

       Appellant appeared pro se at the first two hearings on this case. The trial court

appointed counsel on February 23, 2018. The jury trial began October 1, 2018.

Appellant was also represented by counsel in pursuing a motion for new trial and on

appeal.     Appellant filed his amended motion for new trial, alleging ineffective

assistance of counsel. After an evidentiary hearing, the trial court overruled the

motion for new trial.

Burden of Proof of Ineffective Assistance of Counsel

       To establish ineffective assistance of counsel, an appellant must show by a

preponderance of the evidence that his counsel’s representation was deficient and that

the deficiency prejudiced the defense.2 In assessing a claim of ineffective assistance,

the appellant must overcome the strong presumption that his counsel’s actions might

be considered sound trial strategy.3 An ineffective-assistance claim must be “firmly

founded in the record,” and “the record must affirmatively demonstrate” the


       2
        Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Nava v.
State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013); Hernandez v. State, 988 S.W.2d 770,
770 (Tex. Crim. App. 1999).
       3
          Strickland, 466 U.S. at 689.


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meritorious nature of the claim.4 Direct appeal is usually an inadequate vehicle for

raising an ineffective-assistance-of-counsel claim because the record is generally

undeveloped.5     In evaluating the effectiveness of counsel under the deficient-

performance prong, we look to the totality of the representation and the particular

circumstances of each case.6 The issue is whether counsel’s assistance was reasonable

under all the circumstances and prevailing professional norms at the time of the

alleged error.7   Review of counsel’s representation is highly deferential, and the

reviewing court indulges a strong presumption that counsel's conduct was not

deficient.8

Representation by Appellant’s Counsel

       In his motion for new trial, Appellant argued trial counsel rendered ineffective

assistance during the punishment phase of the trial because he refused to call

witnesses to present evidence of Appellant’s volunteerism, his positive work history,




       4
        Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

      Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012); Thompson, 9
       5

S.W.3d at 813–14.
       6
        Thompson, 9 S.W.3d at 813.
       7
        See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307.
       8
        Nava, 415 S.W.3d at 307–08.



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and the fact Appellant had been a model prisoner, as well as evidence he had been

molested as a child, spent time in foster care, and had been assaulted by his father.

       At the hearing on the motion for new trial, Appellant did not call trial counsel

to testify. Rather, he offered trial counsel’s sworn affidavit, in which he responded to

Appellant’s complaints. Trial counsel stated he was afraid to open the door to

Appellant’s California assault on his mother and that the witnesses Appellant wanted

to call “often did not share his high opinion of himself.” Additionally, he did not

want Appellant’s mother and sister placed under the witness rule so they could

provide him feedback during the trial. The State offered State’s Exhibit 17, which

contained documents relating to the California assault of Appellant’s mother,

including a six-count information alleging: (1) that assault, (2) his threat to kill a

previous wife during an assault with a knife, and (3) resisting arrest.

       The State argues correctly that the exhibit would have become admissible had

trial counsel followed Appellant’s trial strategy instead of his own. Additionally, the

State argues that Appellant’s five-year sentence is evidence that trial counsel pursued a

sound trial strategy.

       The record abundantly reflects Appellant’s failure to overcome the strong

presumption that trial counsel’s conduct fell within the wide range of reasonable

professional assistance and might be considered sound trial strategy. We, therefore,

overrule Appellant’s sole issue on appeal and affirm the trial court’s judgment.



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                                 /s/ Lee Ann Dauphinot
                                 Lee Ann Dauphinot
                                 Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: August 26, 2019




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