AFFIRM; Opinion Filed January 30, 2013.




                                                                  In The
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                                                       No. 05-11-01525-CR


                    RAYMUNDO VALDEZ aka REMUNDO ARROYO, Appellant

                                                                     V.

                                           THE STATE OF TEXAS, Appellee


                               On Appeal from the Criminal District Court No. 2
                                            Dallas County, Texas
                                     Trial Court Cause No. F10-58225-I


                                                            OPINION
                                  Before Justices Lang-Miers, Myers, and Richter
                                                                         1
                                             Opinion By Justice Myers

         Appellant Raymundo Valdez was convicted of murder and sentenced to life imprisonment.

In two issues, he challenges the sufficiency of the evidence and argues the trial court abused its

discretion by refusing his request for additional time to secure the trial counsel of his choice. We

affirm the trial court’s judgment.

                                                             DISCUSSION

                                                              Sufficiency

         In his first issue, appellant argues the evidence was insufficient to support the murder

conviction because “the non-accomplice evidence was not enough to tend to connect him to the


    The Honorable Martin E. Richter, retired Justice, sitting by assignment.
offense” as either a primary actor or a party.

          In reviewing a challenge to the sufficiency of the evidence, we examine all of the evidence

in the light most favorable to the verdict and determine whether a rational trier of fact could have

found the essential element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319 (1979): Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). We

defer to the jury’s credibility and weight determinations because the trier of fact is the sole judge of

the witnesses’ credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326.

          Appellant was indicted for murder.       A person commits murder if he intentionally or

knowingly causes the death of an individual, or intends to cause serious bodily injury and commits

an act clearly dangerous to human life that causes the death of an individual. TEx. PENAL CODE

ANN.     § 19.02(b)(1), (2).
          The jury was instructed that it could find appellant guilty either as a principal or a party to

the offense. A person is criminally responsible as a party to the offense if it is committed by the

actor’s own conduct, by the conduct of another for which he is criminally responsible, or by both.

Id.   § 7.01(a). A person is criminally responsible for an offense committed by another if, “acting with
intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or

attempts to aid the other person to commit the offense.” Id.     § 7.02(a)(2).
          The trial court also instructed the jury that Neftali Abonza and Jesus Valdez, both of whom

testified at appellant’s trial, were accomplice witnesses as a matter of law. An accomplice is a

person who participates in the offense before, during, or after its commission with the requisite

mental state. Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011). According to article

38.14 of the Texas Code of Criminal Procedure, “[a] conviction cannot be had upon the testimony

of an accomplice unless corroborated by other evidence tending to connect the defendant with the




                                                   —2—
  offense committed.” See TEx. CODE CRIM. PROC. ANN. art.
                                                          38.14. Evidence that merely shows the
  commission of the offense is not sufficient to corroborate an
                                                                accomplice’s testimony. Id.
         In conducting a sufficiency review under article 38.14, we must
                                                                         eliminate the accomplice
 testimony from consideration and then examine the remaining
                                                             portions of the record to see if there
 is other evidence that tends to connect the accused with the
                                                              commission of the crime. Malone v.
 State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008). “The
                                                         appellant’s liability as a principal or
 under a parties theory is of no relevance under an Article 38.14
                                                                  analysis. The question is whether
 some evidence tends to connect’ him to the crime; the connection
                                                                  need not establish the exact   nature
 of his involvement (as a principal or party).” Joubert v. State,
                                                                  235 S.W.3d 729, 731 (Tex. Crim,
 App. 2007). The corroborating evidence may be direct or circum
                                                                stantial, and need not be sufficient
 by itself to establish the defendant’s guilt; it is sufficient if
                                                                   the combined weight of the non-
 accomplice evidence tends to connect the defendant to the offense
                                                                  . See Solomon v. State, 49 S.W.3d
 356, 361 (Tex. Crirn. App. 2001); Gosch v. State, 829 S.W.2d
                                                              775, 777 (Tex. Crim. App. 1991).
While a defendant’s mere presence in the company of the
                                                        accomplice before, during, or after the
commission of the offense is insufficient by itself to corroborate
                                                                   accomplice testimony, eviden  ce of
such presence, combined with other suspicious circumstances,
                                                             may tend to connect the defendant
to the offense. See Dowthitt v. State, 931 S.W.2d 244, 249 (Tex.
                                                                 Crim. App. 1996); Cox v. State,
830 S.W.2d 609, 611 (Tex. Crim. App. 1992). Likewise, eviden
                                                             ce that the defendant was in the
company of the accomplice at or near the time or place of the
                                                              offense is proper corroborating
evidence that may, when combined with other suspicious circum
                                                              stances, sufficiently connect the
defendant with the offense. McDuff v. State, 939 S.W.2d
                                                        607, 613 (Tex. Crim. App. 1997);
Dowthitt, 931 S.W.2d at 249.

       The record in this case contains sufficient non-accomplice eviden
                                                                         ce tending to connect




                                               —3—
appellant to the offense. According to the record, Crezcencio Brito was a security guard at the Los

Sapitos pool hail and bar in Dallas, Texas. His responsibilities included making sure no one brought

weapons into the establishment. At around midnight on July 18, 2010. Brito was standing at the

bar’s entrance when he saw the complainant. Agustin Valdez, arrive at the bar, then leave at between

1:30 and 1:40 a.m. Brito saw the complainant walk to his truck parked in the parking lot, get in, and

start the engine. Brito then turned around and went inside the building because the bar was about

to close for the night. As he was walking inside, he heard six gunshots. He turned around and saw

appellant running from the driver’s side of the complainant’s truck with what Brito described as a

large “rifle.”
      2 He also saw Antonio Delapaz, a friend of appellant, approach the complainant’s truck

and fire a pistol at the truck two times. On cross-examination. Brito added that he saw appellant fire

the last of the initial six shots. Appellant and Delapaz fled in a gray Ford Taurus driven by Neftali

Abonza.

            Brito testified that he had seen appellant, Delapaz, and Abonza together at Los Sapitos prior

to the shooting. On the evening of July 17, the three of them met appellant’s brother, Jesus Valdez,

who was driving a white, four-door Ford F 150 pickup truck, at the bar. While he was in the bar,

appellant briefly spoke to a man he had gotten into a fight with approximately three months earlier.

Appellant asked for a beer hut the staff at Los Sapitos refused to serve him because of the trouble

he had earlier caused. Brito did not see the complainant, who was sitting on the far side of the bar

the entire time, speak to appellant or to any of the other three men, and they left the bar after

approximately five minutes. In the bar’s parking lot, Brito saw Valdez get out of the pickup truck

and speak to appellant, Delapaz and Abonza, who were in the Ford Taurus. Valdez spoke to them




   2
       When asked if he knew what a shotgun was, Brito replied “no.”




                                                                   —4-
 through the driver’s side window; Abonza was driving the vehicle. Valdez drove away in the truck

followed by appellant. Delapaz, and Abonza in the Taurus. Both vehicles returned to the bar fifteen

or twenty minutes later and circled the building.

        On cross-examination. Brito admitted he had been deported from the United States to Mexico

after being convicted of possession of a controlled substance and operating a stolen vehicle. Brito

lived in Mexico at the time of trial. The Dallas County District Attorney’s office arranged and paid

for his trip to Dallas to testify.

        The police found a fired 12 gauge shotgun cartridge and a fired 9 mm pistol cartridge on the
                                     .




ground near the front of the complainant’s truck. Multiple fired 9 mm cartridges were also found

at the crime scene near the front, passenger side of the truck. A bullet fragment and a “wad” from

a spent shotgun shell were found in the street.

        The bartender at Los Sapitos provided the Dallas police with the license plate number of the

white pickup truck. A check of that license plate number led police to a home in Mesquite, Texas.

Later, on the early morning of July 18, after knocking on the door, the police received consent to

search the Mesquite residence from Maria Depaz, Antonio Delapaz’s sister and the wife of Jesus

Valdez. Inside the home, the police found a .12 gauge shotgun and a 9 mm semi-automatic pistol.

The pistol was wrapped in a towel that was found in between a mattress and box springs of a bed in

the rear bedroom. The shotgun was found behind a cabinet in the living room. As the investigation

continued, Delapaz told Dallas Police Department homicide detective Dwayne Thompson that he

twice shot a 9 mm handgun into the side of the complainant’s truck and saw appellant shoot into the

driver’s side of the truck twice with a shotgun. Depaz testified that appellant’s brother returned to

their Mesquite home at around 1:30 or 1:40 a.m. on July 18, followed by Delapaz, Abonza, and

appellant.




                                                  —5—
          Dallas County medical examiner Tracy Dyer testified
                                                              that the complainant suffered two
  gunshot wounds—a shotgun wound to the head and
                                                 a gunshot wound to the abdomen, Dyer could
  not rule out either wound as the cause of death. The
                                                       complainant had both alcohol and cocaine in
 his system at the time of his death. During the auto
                                                      psy, the medical examiner retrieved “birdshot
 pellets” and “plastic wadding” from the complain
                                                     ant’s head and a bullet from his hip. Laura
 Fleming, a firearms examiner with the Dallas Cou
                                                        nty Crime Lab, testified that the shotgun
 “wadding” taken from the crime scene and the com
                                                    plainant’s body came from the seized .12 gauge
 shotgun.

         Appellant argues the State’s case hinges on Brito’s testi
                                                                   mony, but that Brito’s testimony was
 too unreliable to tend to connect appellant to the offen
                                                         se because it was inconsistent or contradictory
 regarding, for example, how many shots were fired and
                                                            where Brito was standing when the shooting
 started. Appellant also challenges Brito’s identifica
                                                       tion of appellant, noting he saw appellant only
  once while appellant was, according to Brito, runn
                                                          ing across the bar’s parking lot at night.
  Nonetheless, Brito’s testimony combined with the
                                                     forensic evidence “tends to connect” appellant
 to the murder of the complainant. The non-accompli
                                                       ce corroborating evidence in this case may not
 have been sufficient to prove guilt beyond a reasonabl
                                                        e doubt, but it was sufficient for a rational jury
 to have concluded the corroborating evidence tended
                                                        to connect appellant to the offense. It was the
jury’s role as the trier of fact to judge the weight
                                                        and credibility of the witnesses’ testimony.
Moreover, having reviewed the evidence under the appr
                                                          opriate standard, we find sufficient evidence
from which a rational jury could have found appellant
                                                      guilty of murder. We overrule appellant’s first
issue.

                                             Continuance

       In his second issue, appellant contends the trial cour
                                                              t violated his constitutional rights by




                                                 -6-
 denying his verbal request for additional time to obtain the
                                                              “counsel of his choice.”
         On the day that appellant’s case was called for trial, shortly
                                                                        before the start of jury selection,
 appellant told the trial court he wanted additional time
                                                          to obtain another attorney because did not
 want to proceed with his appointed counsel. According
                                                       to the record, after appellant told the court
 he had “a right to have another attorney because now I want
                                                             another attorney,” the court replied:
        Okay. Well, we have a jury out in the hallway, so if your
                                                                    family can hire an attorney
        in the next three minutes, that’s fine, but [defense
                                                             counsell sat through the trial of
        your, co-defendant all last week and watched all the testi
                                                                    mony, and it’s been typed
        up for him, and he’s reviewed it, so he’s ready to go
                                                                    today. He’s got a lot of
        experience, so unfortunately, if you wanted to hire anot
                                                                 her attorney, you should have
        done that about a year ago or last week.

 When appellant reiterated his desire for another attorney,
                                                            the court told appellant he had “the right
to hire whatever attorney you want” but “you elected not
                                                         to hire an attorney until the jury was out
in the hallway, and it’s too late.” Appellant then complain
                                                            ed that his attorney “never went to see me
or anything” and “never explained anything about my case
                                                         .” Counsel replied:
        Perhaps my client will acknowledge I have sent the inve
                                                                    stigator to visit with you,
        he’s gotten facts and followed up on those, and I have been
                                                                    back there outlining what
        the [Sjtate’s case is and what I believe the evidence will show
                                                                         .
Appellant again told the court he needed “to change attor
                                                          neys,” after which the court said. “Well,
it’s too late. Unless you can get an attorney in here in
                                                         the next minute or two, we’re going to be
bringing the jury in. It’s too late.” At the conclusion
                                                        of the guilt-innocence phase of the trial,
appellant’s appointed counsel questioned appellant as follo
                                                            ws:
        [DEFENSE COUNSEL]: Judge, if we’re on the record,
                                                                    Ijust want to make sure that
       my client is satisfied with the representation because if there
                                                                       ’s anything that my client
       wants me to do that I haven’t done, you know, I would
                                                                   certainly like to know about
       that right now.
               Mr. Valdez, is there anything else that you need for me to
                                                                             do on this case that
       I have not done?

       THE DEFENDANT (THROUGH THE INTERPRETER):
                                                Everything is fine.




                                                 —7--
         DEFENSE COUNSEL I: Okay. So you are satisfied with my representation’?

        THE DEFENDANT (THROUGH THE iNTERPRETER): Yes.

        THE COURT: All right.

        [DEFENSE COUNSELj: Okay. And I know there was some concern earlier that I
        had not, you know, had an investigation done or, you know, wasn’t prepared for trial.
        But I think you’ve seen, you know, that I was very prepared for trial. We did have
        an investigation, and I was quite familiar with the facts. And I sat through the trial
        last week. So I was very, very prepared for it.

        Motions for continuance that are not in writing and not sworn to preserve nothing for review.

See TEX. CODE CRIM. PROC. ANN. art. 29.03: Dewherrv v. State, 4 S.W.3d 735, 755 (Tex. Crim.

App. 1999); accord Anderson v. State, 301 S.W.3d 276, 279 (Tex. Crim. App. 2009); Sumrell v.

State, No. 05-09-00238-CR, 2010 WL3123302, at *3 (Tex. App.—Dallas Aug. 10,2010, pet. ref’d)

(not designated for publication). Appellant’s request for additional time to obtain another attorney

was neither sworn to nor written. As a result, he failed to preserve his issue for appellate review.

        But even if we were to conclude appellant’s issue was preserved for our review, there was

no abuse of discretion. The right to counsel is not absolute. Exparte Windham, 634 S.W.2d 718,

720 (Tex. Crim. App. 1982) (right to counsel of one’s own choice is neither absolute nor

unqualified). That right must be balanced against the trial court’s need for the prompt, orderly,

effective, and efficient administration of justice.   Emerson v. State, 756 S.W.2d 364, 369 (Tex.

App.—Houston [14th Dist.] 1988, pet. ref’d). Moreover, a defendant’s right to select his own

counsel cannot be manipulated so as to obstruct the orderly procedure in the courts or to interfere

with the fair administration ofjustice. Exparte Davis, 818 S.W.2d 64, 66 (Tex. Crim. App. 1991);

Webb v. State, 533 S.W.2d 780, 784 (Tex. Crim. App. 1976). A defendant may not wait until the

eve of trial to demand different counsel or request counsel be dismissed so that he may retain other

counsel. Webb, 533 S.W.2d at 784. The defendant also carries the burden of proving he is entitled




                                                —8—
 to a change of counsel, Malcom, 628 S,W2d at 791.

         The Texas Court of Criminal Appeals has identified a number of factors that can be weighe
                                                                                                          d
 in determining whether a continuance was properly denied in this situation: (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 balanc
                                                                         ed convenience or
 inconvenience to the witnesses, the opposing counsel, and the trial court; (6) whethe
                                                                                       r the delay was
 for legitimate or contrived reasons; (7) whether the case was complex or simple
                                                                                 ; (8) whether the
 denial of the motion resulted in some identifiable harm to the defendant: and (9)
                                                                                   the quality of the
legal representation actually provided. Windhain, 634 S.W.2d at 720. We will not
                                                                                 reverse a trial
court’s decision to deny a motion for continuance unless the court has abused its discret
                                                                                         ion. Vasquez
v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002).

        The majority of the relevant Windham factors support the trial court’s ruling. We
                                                                                          first note
that appellant requested an unspecified and uncertain delay of the trial. As for contin
                                                                                        uances, there
is no indication in the record that any motions for continuance had previously been
                                                                                    granted, yet the
case had been on the court’s docket, and appellant had been incarcerated awaiting trial,
                                                                                         since July
of 2010. Appellant did not raise the issue of postponing trial for the purpose of
                                                                                  securing of new
counsel until the case was called for trial, on November 2, 2011, when prospe
                                                                              ctive jurors were
waiting “out in the hallway” for the commencement of voir dire. Appellant’s appoin
                                                                                   ted counsel,
who was appointed to the case on July 27, 2010, told the court he was prepared to
                                                                                  go to trial. A total
of nine witnesses testified for the State. The record also shows that defense counse
                                                                                     l observed the
trial of appellant’s co-defendant and sent an investigator to visit appellant
                                                                              and gather facts.
Appellant offers no evidence to rebut defense counsel’s assertion that he was prepar
                                                                                     ed to go to trial,



                                                —9—
nor does appellant allege ineffective assistance of counsel. Given the impending
                                                                                 trial setting, the
trial court could have balanced these factors and concluded a continuance would
                                                                                be inappropriate.
We discern no abuse of discretion in the court’s ruling. We overrule appella
                                                                             nt’s second issue.

       We affirm the trial court’s judgment.


                                                                /2

                                                      LANA MERS
                                                            4
                                                      JUSTICE


Do Not Publish
TEx. R. APP. P.47
11 1525F.U05




                                               —10—
                               niirt Lii Appra1i
                       iiftI! Jitrirt uf Irxu at Da1tai

                                          JUDGMENT
RAYMUNDO VALDEZ aka REMUNDO                            Appeal from the Criminal District Court No.
ARROYO. Appellant                                      2 of I)allas County, Texas. (Tr.Ct.No. F 10-
                                                       5225-l).
No. 05-i 1-01525-CR           V.                       Opinion delivered by Justice Myers, Justices
                                                       Lang—M iers and Richter participating.
THE STATE OFEXAS, Appellee

       Based on the Court’s   opinion   of this date, the judgment of the trial court is AFF1R11E D.



Judgment entered January 30, 2013.




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