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Edward Lee McDade v. State ( 2002 )


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    In The

    Court of Appeals

    Sixth Appellate District of Texas at Texarkana



    ______________________________



    No. 06-01-00134-CR

    ______________________________





    EDWARD LEE McDADE, Appellant



    V.



    THE STATE OF TEXAS, Appellee





    On Appeal from the 155th Judicial District Court

    Waller County, Texas

    Trial Court No. 01-02-10,578









    Before Cornelius, C.J., Grant and Ross, JJ.



    O R D E R



    Edward McDade appeals his convictions for aggravated assault (06-01-00134-CR) and two counts of assault on a public servant (06-01-00135-CR and 06-01-00136-CR). The punishment range for each offense was enhanced pursuant to the jury's finding that McDade qualified as a habitual offender. See Tex. Pen. Code Ann. § 12.42(d) (Vernon Supp. 2002). The jury assessed McDade's punishment at fifty years' imprisonment for the aggravated assault offense and twenty-five years' imprisonment for each of the assault on a public servant offenses.

    Colin McFall, McDade's appointed attorney on appeal, has filed a motion requesting leave to withdraw from further representation. McFall states that he has accepted employment as an assistant district attorney in Cherokee County and that continuing his representation of McDade would constitute a conflict of interest.

    We order this appeal abated and the case remanded to the 155th Judicial District Court in Waller County. We order the trial court to determine whether McFall should continue as McDade's attorney and, if not, to appoint new counsel. We order the trial court to act within fifteen days of the date of this order and to immediately thereafter forward a supplemental transcript to the clerk of this court showing such action.



    IT IS SO ORDERED.





    Ben Z. Grant

    Justice



    Date: January 8, 2002

    regional manager for several Brake Check stores in Houston and a brake expert, testified that pressing on the brakes of a car that is not running will not help diagnose brake failure; the engine must be running to make such a determination.

    Mokuolo contends the evidence is factually insufficient to support his conviction. In a factual sufficiency review, we examine the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Twist v. State, 976 S.W.2d 275, 277 (Tex. App.-Texarkana 1998, no pet.). We set aside the verdict for factual insufficiency only if (1) the evidence in support of a vital fact, considered as standing alone, is factually too weak to support it, or (2) looking at all the evidence, some evidence supports a positive inference and some supports a negative inference, but the State's evidence is so weak it makes the finding against the great weight and preponderance of the evidence. Goodman v. State, 66 S.W.3d 283 (Tex. Crim. App. 2001). In such a case the finding is described as being "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Id.

    The State charged Mokuolu by information with the offense of failure to stop and give information. A driver commits a class B misdemeanor if his vehicle is involved in an accident resulting in more than $200.00 of property damage (but not resulting in physical injury), and he does not immediately stop his vehicle at the scene of the accident (or immediately return to the scene of the  accident  if  the  vehicle  is  not  stopped  at  the  scene  of  the  accident).  Tex.  Transp.  Code Ann. §§ 550.022, 550.023 (Vernon 1999). The driver is required to remain at the scene until he gives his name, address, vehicle registration or license plate number, insurance information, and (if requested) driver's license information. Id.; see Morris v. State, 786 S.W.2d 451 (Tex. App.-Dallas 1990, pet. ref'd) ("vehicle registration" means license plate number). "The word 'stop' as used in a similar statute has been held to mean 'a definite cessation of movement for a sufficient length of time for a person of ordinary powers of observation to fully understand the surroundings of the accident and to possess himself of an accurate knowledge of the results of the accident.'" Twist v. State, 976 S.W.2d at 277 (quoting Moore v. State, 140 Tex. Crim. 482, 145 S.W.2d 887, 888 (1940)).

    There is evidence that Mokuolu did not stop for a sufficient length of time at the nearest location to Pokrajac's vehicle and provide the information required by the Texas Transportation Code. Several witnesses for the State testified to this fact, whereas only Mokuolo testified that the brake failure prevented him from stopping near Pokrajac. However, even if Mokuolu's brakes failed at some point, there is positive testimony that Mokuolu did come to a complete stop right after colliding with Pokrajac, but when Pokrajac got out of her vehicle and started to approach him, Mokuolu drove away and had to be stopped later by other drivers. The jury was authorized to find from this evidence that Mokuolu intentionally failed to stop at the accident scene in a manner required by the Texas Transportation Code. And although Mokuolu eventually stopped again and spoke to Pokrajac, it can be inferred from the evidence that he did so only because other motorists blocked his progress and caused him to crash into their vehicles. Several witnesses testified they believed Mokuolo had attempted to flee. A driver's initial attempt to leave the scene, that is later thwarted by pursuit and attempts to restrain him, which ultimately results in a stop, does not fulfill the requirements of the duty to stop and give information. Twist v. State, 976 S.W.2d at 278. The record is clear that Mokuolu failed to provide evidence of insurance and his driver's license information to Pokrajac at or near the scene of the accident. We find the evidence factually sufficient to support a finding that Mokuolu did not immediately stop and give the required information.

    In his second point of error, Mokuolu contends the trial court erred by denying his motion for new trial. Mokuolu argues he should be given a new trial because his trial counsel did not present expert testimony on brake failure and thereby provided ineffective assistance of counsel.

    We review a trial court's denial of a motion for new trial for abuse of discretion. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001); State v. Kelley, 20 S.W.3d 147, 151 (Tex. App.-Texarkana 2000, no pet.). "A trial court abuses its discretion when it so deviates from applicable guidelines and principles that the decision falls outside the zone of reasonable disagreement." Breakiron v. State, 79 S.W.3d 103, 107 (Tex. App.-Texarkana 2002, no pet.). We must not substitute our judgment for that of the trial court, but instead we determine whether the trial court's decision was outside the zone of reasonable disagreement or was arbitrary or unreasonable. Salazar v. State, 38 S.W.3d at 148; Davis v. State, 71 S.W.3d 844, 846 (Tex. App.-Texarkana 2002, no pet.). The standard for testing claims of ineffective assistance of counsel was set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53, 56-7 (Tex. Crim. App. 1986). In this case, we do not apply the Strickland standard in a de novo fashion, but review the trial court's application of the Strickland standard through the prism of the abuse of discretion standard. See State v. Kelley, 20 S.W.3d at 151.

    To prevail on his claim of ineffective assistance, Mokuolu must prove by a preponderance of the evidence (1) that his counsel's representation fell below an objective standard of reasonableness, and (2) that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. at 687; Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999). To meet this burden, Mokuolu must prove that his attorney's representation fell below the standard of prevailing professional norms, and that there is a reasonable probability that, but for the attorney's deficiency, the result of the trial would have been different. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Under this standard, Mokuolu must prove that counsel's representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland v. Washington, 466 U.S. at 686.

    Our review of counsel's representation is highly deferential, and we indulge a strong presumption that counsel's conduct falls within a wide range of reasonable representation. Strickland v. Washington, 466 U.S. at 689; Tong v. State, 25 S.W.3d at 712. We will not second-guess through hindsight the strategy of counsel at trial, nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979). That another attorney, including Mokuolu's counsel on appeal, might have pursued a different course of action does not necessarily indicate ineffective assistance. Harner v. State, 997 S.W.2d 695, 704 (Tex. App.-Texarkana 1999, no pet.). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

    First, Mokuolu's trial counsel was not called to testify at the hearing on Mokuolu's motion for new trial. We therefore have no information before us about his counsel's trial strategy. Cf. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) (under normal circumstances, record on direct appeal will not be sufficient to show counsel's trial strategy was so deficient as to overcome presumption of reasonableness and professionalism). Second, "Arthur," the Brake Check service technician whose last name is unknown and who reportedly told Mokuolu that his brakes had failed during the accident, was not called to testify at the hearing on the motion for new trial.

    Third, for Mokuolu's argument to have merit, there must be some showing that an expert would have testified in a manner that benefitted Mokuolu. See Teixeira v. State, 89 S.W.3d 190, 193 (Tex. App.-Texarkana 2002, pet. ref'd) (trial counsel not ineffective in non-capital case for not hiring expert on future dangerousness because no evidence of expert who would have testified favorably for defendant); see also Duren v. State, 87 S.W.3d 719, 733-34 (Tex. App.-Texarkana 2002, no pet.) (counsel not ineffective for calling defense expert if expert's findings were similar to findings by State's expert). Without such evidence, Mokuolu has not met his burden of proof under the first prong of Strickland. See Teixeira v. State, 89 S.W.3d at 193; Rodriguez v. State, 82 S.W.3d 1, 2 (Tex. App.-San Antonio 2001, pet. dism'd) (ineffective assistance not shown where record is silent about counsel's reason for not calling rebuttal expert testimony). Robert Stone, the brake expert who testified at the motion for new trial hearing, did not state that Mokuolu could not stop at the accident scene due to brake failure. In fact, Stone affirmatively stated that he was not able to testify about the status of Mokuolu's brakes in October of 2001, the month of the accident. Such testimony falls short of evidence that Mokuolu's brakes failed at the time of the accident.

    Moreover, even if Mokuolu proved and the jury believed that his brakes failed at some point, that would not necessarily have constituted a viable defense to the charge against him. There is positive testimony from three witnesses that Mokuolu did come to a full stop immediately after the collision, but that he did not get out and give Pokrajac the required information. Instead, he drove off in an attempt to flee. Thus, brake failure was not a dispositive issue.

    Mokuolu has failed to prove by a preponderance of the evidence that his counsel's performance fell below an objective standard of reasonableness, and that his defense was prejudiced. Accordingly, the trial court did not act outside the zone of reasonable disagreement by denying Mokuolu's motion for new trial.

    For the reasons stated, we affirm the trial court's judgment.







    William J. Cornelius

    Justice*



    *William J. Cornelius, Chief Justice, Retired, Sitting by Assignment



    Date Submitted: February 3, 2003

    Date Decided: April 23, 2003



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