Raul Zavala Robledo v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-97-00094-CR

Raul Zavala Robledo, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT

NO. 96-119-K368, HONORABLE BURT CARNES, JUDGE PRESIDING

Appellant, Raul Zavala Robledo, appeals from his convictions for intoxication

assault (1) and failure to remain at the scene of an accident and render reasonable assistance. (2) After

the jury convicted appellant of both counts in the same indictment, the trial court assessed

punishment. Appellant pleaded "true" to the prior felony convictions alleged for enhancement of

punishment. The court assessed a life sentence for each offense. (3)

Points of Error

Appellant advances six points of error. In the first two points, appellant challenges

both the legal and factual sufficiency of the evidence to sustain the conviction for failure to remain

at the scene of the accident and render reasonable assistance under count two of the indictment.

There is no challenge to the sufficiency of the evidence to sustain the intoxication assault

conviction. In points of error three and four, appellant claims that he was deprived of the effective

assistance of counsel under both federal and state constitutions. Point of error five claims an

improper finding of the use of a deadly weapon during the commission of failure to remain at the

accident scene as charged in count two. Lastly, appellant complains that count two of the

indictment was so fundamentally defective that it charged no offense at all, requiring the

conviction to be set aside, notwithstanding the failure of trial counsel to object or file a motion to

quash or set aside count two.

The Sixth Point of Error

We begin our discussion with appellant's sixth point of error. If appellant is correct

in his contention, this will largely dispose of the other points of error. Appellant contends that

despite the lack of an objection, the allegations in count two of the indictment are so fundamentally

defective "as to not charge any offense at all and require reversal . . . ."

An indictment is a written instrument presented to a court by a grand jury charging

a person with the commission of an offense. An information is a written

instrument presented to a court by an attorney for the State charging a person with

the commission of an offense. The practice and procedures relating to the use of

indictments and informations, including their contents, amendment, sufficiency,

and requisites, are as provided by law. The presentment of an indictment or

information to a court invests the court with jurisdiction of the cause.

Tex. Const. art. V, § 12(b).

A defect in an indictment or information, whether it be of form or substance, is

considered waived if it is not objected to prior to the commencement of trial. See Tex. Code

Crim. Proc. Ann. art. 1.14(b) (West Supp. 1999); see also State v. Murk , 815 S.W.2d 556, 557

(Tex. Crim. App. 1991); Studer v. State , 799 S.W.2d 263, 268 (Tex. Crim. App. 1990); Castro

v. State , 970 S.W.2d. 699, 700 (Tex. App.--Corpus Christi 1998, pet. ref'd). To the extent that

the fundamentally defective indictment doctrine or rule can be deemed to still exist, the complaint

on appeal must be that the charging instrument was so deficient that it failed to confer jurisdiction

upon the court to render any conviction. See Nami Hoai Le v. State , 963 S.W.2d 838, 843 (Tex.

App.--Corpus Christi 1998, pet. ref'd) (citing Duron v. State , 956 S.W.2d 547, 549-51 (Tex.

Crim. App. 1997)). The presentation of a constitutionally sufficient indictment to a court invests

the court with jurisdiction. Tex. Const. art. V, § 12(b); Duron , 956 S.W.2d at 550 ; Cook v.

State , 902 S.W.2d 471, 480 (Tex. Crim. App. 1995); State v. Smith , 957 S.W.2d 163, 165 (Tex.

App.--Austin 1997, no pet.). The constitutional requisites for an indictment are satisfied by a

written instrument accusing a person of the commission of a criminal offense with enough clarity

and specificity to identify the penal statute under which the State intends to prosecute even if the

instrument is otherwise defective. See Duron , 956 S.W.2d at 549 ; Cook , 902 S.W.2d at 479-80 ;

Smith , 957 S.W.2d at 165 ; see also Castro , 970 S.W.2d at 700 .

Although appellant claims that count two, alleging commission of the offense of

failing to remain at the scene of the accident, is fundamentally defective, he fails to list in his

argument under this point what deficiencies exist or what absolutely essential elements are missing

so as to prevent the investment of jurisdiction in the trial court. The State urges that the point of

error is inadequately briefed and presents nothing for review. See Alvarado v. State , 912 S.W.2d

199, 210 (Tex. Crim. App. 1995); Huerta v. State , 933 S.W.2d 648, 650 (Tex. App.--San

Antonio 1996, no pet.); Maldonado v. State , 902 S.W.2d 708, 711 (Tex. App.--El Paso 1995,

no pet.). We observe, however, that in another point of error, appellant complains that count two

contained no culpable mental state. A culpable mental state is required in alleging the offense

contained in count two. See Steen v. State , 640 S.W.2d 912, 915 (Tex. Crim. App. 1982)

(intentionally and knowingly); Goss v. State , 582 S.W.2d 782, 784 (Tex. Crim. App. 1979)

(knowledge of circumstances surrounding defendant's conduct); see also Elias v. State , 693

S.W.2d 584 (Tex. App.--San Antonio 1985, no pet.); Morales v. State , 673 S.W.2d 697 (Tex.

App.--Corpus Christi 1984, no pet.). As appellant concedes, there was no objection on this basis

to the indictment before the trial commenced. Thus, the absence of a culpable mental state or

states in count two was waived. See Murk , 815 S.W.2d at 557 . Moreover, the lack of a culpable

mental state did not deprive count two of enough clarity and specificity to identify the penal statute

involved.

Appellant has also argued elsewhere in his brief that count two is defective because

it failed to allege the "failure to stop," an essential element of the offense of failure to stop and

render aid under article 6701d, sections 38 and 40, under which the prosecution was brought. The

original count two of the indictment did allege in part: "and failed to immediately stop such

vehicle at the scene of such accident or as close thereto as possible, or to forthwith return to the

scene of the accident." This part of the allegations included in count two was abandoned by the

State without objection, leaving in place the allegations of failure to remain at the scene of the

accident and render assistance. In Elias , 693 S.W.2d at 588 , the court pointed out that the "failure

to stop" was not an essential element of the offense of failure to remain at the scene of the accident

and render assistance. See also Bevil v. State , 141 S.W.2d 362, 364 (Tex. Crim. App. 1940)

(even if the defendant stops he is still guilty if he fails to render assistance as required); cf. Morris

v. State , 786 S.W.2d 451, 456-57 (Tex. App.--Dallas 1990, pet. ref'd) (proof of noncompliance

with any one of items to be furnished upon an accident is sufficient to constitute an offense).

The instant indictment met the constitutional requisites. It accused a person,

Robledo, of the commission of a criminal offense with enough clarity and specificity to identify

the penal provisions under which the State intended to prosecute, even if the indictment was

defective in not alleging a culpable mental state. The indictment thus invoked the jurisdiction of

the district court. The fact that the State later abandoned some allegations in count two did not

render the indictment defective or deprive the trial court of the jurisdiction it had acquired.

Appellant's sixth point of error is overruled.

In his first point of error, appellant challenges the legal sufficiency to support the

conviction for failure to remain at the scene and render reasonable assistance under count two of

the indictment.

Facts

Irene Mikulencak, the complainant, testified that near noon on April 15, 1995, she

was driving a pick-up truck north on County Road 973. About two miles south of Taylor,

Mikulencak observed a car in the opposite lane being driven "awfully fast." The car then crossed

the double yellow line on the highway, came into the northbound lane, and crashed into

Mikulencak's truck. Mikulencak got out of her vehicle less than five minutes after the impact.

She saw the driver of the other vehicle get out of his car and sit on the ground. This driver was

later identified as appellant. Mikulencak stated that appellant never approached her, talked to her,

asked her if she needed medical attention, offered to go for help, or even looked in her direction.

At the time Mikulencak's nose was bleeding and she realized her arm was broken. Within a few

minutes of the accident, her son, Darrell, arrived on the scene. He had been driving in the same

direction as appellant. She asked her son to check on the people in the other car. The first

ambulance took Karen Rodriguez, a passenger in appellant's car, away from the scene. A second

ambulance removed Mikulencak.

Dr. Patricia Rosen testified that Irene Mikulencak suffered protracted loss of the

use of her arm and suffered serious bodily injury to her face and eye. A metal plate had been

inserted into her arm and the damage to the left side of her face required the use of three metal

plates.

Darrell Mikulencak was the first person on the scene after the accident. He first

checked on his mother and then went to the other vehicle where appellant was seated in the

driver's seat. Karen Rodriguez and her baby were in the back seat. Darrell drove his truck to the

nearby home of Jason Susan, whom he asked to call 911. When he returned to the scene, both his

mother and appellant were out of their vehicles. Appellant approached the vehicle he had been

driving and took something out from under the driver's seat. Darrell left the scene again to obtain

towels for the injured individuals, but upon his return he observed appellant walking south away

from the scene. This was before the emergency medical personnel arrived. While he was at the

scene, Darrell never saw appellant check on his mother.

Jason Susan, a reserve constable, heard the sound of the accident while he was in

his bathroom. Darrell Mikulencak arrived and asked Susan to call 911, which he did. Within a

few minutes, Susan arrived on the scene and found appellant sitting on the ground in "a state of

stunness." Appellant appeared to "snap out of it" and went to the front seat of his car and

removed a paper or envelope. Susan never saw appellant approach Irene Mikulencak to determine

if she was injured or needed help. He did not see appellant leave the scene, but appellant was

gone when the emergency personnel arrived.

John Susan, Jason's father, heard the crash while he was at a grocery store. He

arrived on the scene within four or five minutes and observed appellant get out of a car and sit on

the ground. He told appellant that appellant needed medical attention, but appellant did not appear

concerned or interested in the other injured parties at the scene. John Susan saw appellant retrieve

an envelope from the car. When John Susan went to flag down a passing truck, appellant left the

scene. John Susan, based on his work experience in cafes and for a school district, testified that

he believed that appellant was intoxicated or on drugs.

Highway Patrol Officer Sam Lovelace received a report of the accident about

11:50 a.m. on April 5, 1995. He arrived on the scene about 12:25 p.m. Appellant was not there.

Lovelace went to the Johns Community Hospital in Taylor in an attempt to locate appellant. He

found Karen Rodriguez there, but not appellant. Subsequently, he went to a house in Taylor

following Rodriguez's instructions. With the assistance of an unidentified citizen, who knew

appellant, Lovelace went to two or three other houses and found one with a trail of blood leading

up to it. Children from the house next door told the officer that a bleeding man had gone to the

hospital. Officer Lovelace returned to the Johns Hospital at 3:00 p.m. and found that appellant

had just arrived. Appellant admitted to Lovelace that he was the driver of the car in the accident,

that he did not know what happened, that he must have looked off. Lovelace related that appellant

"reeked" of an alcoholic beverage. Appellant denied he had any alcoholic beverages after the

accident, but admitted he had a couple of beers "before the accident and that he had been drinking

heavily the night before." Lovelace was of the opinion that appellant was intoxicated at the time

of the accident. Appellant consented to a blood test and the blood was drawn at 3:11 p.m.

From the position of the vehicles, the debris and skid marks at the scene, Lovelace

determined that appellant had crossed over the yellow line and that his vehicle struck Irene

Mikulencak's truck. This opinion was shared by Henry Jones, an insurance adjuster, who also

investigated the accident.

Karen Rodriguez, with a grant of immunity, testified for the State. She related that

she and appellant got together "to party" on April 4. Appellant picked her and her infant son up

in Taylor in the afternoon. They purchased beer and cocaine and later picked up Carla Peacock

and purchased more cocaine. At Carla's house, they watched television, smoked marihuana and

drank beer. About 3:00 or 4:00 a.m. on April 15, Carla locked appellant, Karen and her son out

of the house. These three left in a car belonging to Carla's parents, went to a friend's house to

rest, and drove to Austin about 6:00 or 7:00 a.m. to borrow money from a relative. After

appellant obtained the money, he purchased more cocaine and placed it in an envelope. Appellant

and Karen decided to return to Carla's house. Karen related that shortly before the accident she

and appellant were drinking beer and smoking cocaine, that they were both intoxicated at the time

of the accident, and that appellant was trying to drive and light a crack pipe when the accident

occurred. After the accident, Karen saw appellant searching for something in the front seat of the

car. While appellant did not inquire if she was hurt or needed help, he did tell her he was going

to "take off." She saw him get into the back of a truck. Karen suffered a ruptured kidney and

fractured neck and underwent surgery for her injuries. Laboratory blood tests indicated the

presence of cocaine and marihuana in her system.

Dr. Robert Cummings was called to the Johns Community Hospital. He examined

appellant between 5:00 and 6:00 p.m. on April 15, 1995. Appellant had multiple rib fractures and

a large cut on his knee. A piece of glass was found in his right eye several days later. Appellant

told Dr. Cummings that he had been making a U-turn when he was hit by a car going 55 miles per

hour. He admitted to the doctor that he had had three or four beers that morning. At the time of

the examination, Dr. Cummings did not detect any alcohol on appellant's breath nor did appellant

appear to be under the influence of any narcotic.

Robert Buckner, a forensic scientist for the Department of Public Safety, tested a

sample of appellant's blood taken with appellant's consent and found cocaine metabolites, the

after-results of cocaine ingestion. Sheryl Peyton, a D.P.S. forensic toxicologist, stated that lab

tests on appellant's blood showed a .03 grams per 100 milliliters of blood alcohol concentration.

Responding to hypotheticals, Peyton estimated that a subject, testing as appellant did, and who had

his last drink at noon with his blood drawn at 3:00 p.m., and who had the average .03 per

metabolization rate, would have had an alcohol blood content of .07 at noon. If the last drink was

at 11:00 a.m., the alcohol content would have been .09 at noon.

Carla Peacock testified that she was with appellant and Karen at the Peacock house

in Thorndale and that they left about 1:00 a.m. on April 15. She denied that any of them had

cocaine that evening, claiming that they only drank beer.

Consuelo Robledo, appellant's mother, testified for the defense that she saw

appellant at 11:00 a.m. on April 15 and he was not drunk or high on drugs at the time. Sheryl

Robertson, Carla Peacock's sister, testified that she had seen appellant about 7:30 or 8:00 p.m.

on April 14 and that he was not intoxicated at the time.

Legal Sufficiency

In determining whether the evidence is legally sufficient to support the judgment,

we view the evidence in the light most favorable to the verdict, asking whether any rational trier

of fact could have found beyond a reasonable doubt all the essential elements of the offense. See

Jackson v. Virginia , 443 U.S. 307, 319 (1979); Lane v. State , 933 S.W.2d 504, 507 (Tex. Crim.

App. 1996); Skillern v. State , 890 S.W.2d 849, 879 (Tex. App.--Austin 1994, pet. ref'd).

The evidence, viewed in this light, and all reasonable inferences drawn therefrom

are evaluated in this review. See Alvarado v. State , 912 S.W.2d 199, 207 (Tex. Crim. App.

1995). A reviewing court must evaluate all evidence, rightly or wrongly admitted, that the trier

of fact was permitted to consider. See Garcia v. State , 919 S.W.2d 370, 378 (Tex. Crim. App.

1997); Johnson v. State , 871 S.W.2d 183, 186 (Tex. Crim. App. 1993); Beltran v. State , 728

S.W.2d 382, 389 (Tex. Crim. App. 1987). The standard for review is the same for both direct

and circumstantial evidence cases. See Green v. State , 840 S.W.2d 394, 401 (Tex. Crim. App.

1992). Appellate courts measure the legal sufficiency of the evidence against a hypothetically

correct jury charge. See Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). In

analyzing a challenge to the legal sufficiency of the evidence, the reviewing court does not realign,

disregard, or weigh the evidence. Rodriguez v. State , 939 S.W.2d 211, 218 (Tex. App.--Austin

1997, no pet.). The jury as trier of fact is the sole judge of the credibility of the witnesses and the

weight to be given the testimony. It may accept or reject all or any part of any witness's

testimony. See Sharp v. State , 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Williams v. State ,

692 S.W.2d 671, 676 (Tex. Crim. App. 1984). Reconciliation of evidentiary conflicts is solely

the function of the trier of fact. See Miranda v. State , 813 S.W.2d 724, 733-34 (Tex. App.--San

Antonio 1991, pet. ref'd); Juarez v. State , 796 S.W.2d 523, 524 (Tex. App.--San Antonio 1990,

pet. ref'd).

Appellant argues that at the time he left the scene of the accident, the State's

evidence indicated that the complainant's son had already contacted the medical authorities and

there were others present to assist the complainant. Thus, he contends that all the "operative facts

necessary to protect the complaining witness were satisfied before he left the scene, and the

evidence is legally insufficient as a matter of law." We do not agree. The complainant's son

asked another individual to call 911, and the emergency personnel, if then called, had not arrived

before appellant left the scene. There was no evidence that appellant was aware of any calls for

assistance by others. The fact that a victim is unconscious or dead or unable to receive the

information from the defendant as required by law does not excuse the defendant from complying

with the provisions of the statute. See Galvan v. State , 846 S.W.2d 161 (Tex. App.--Houston [1st

Dist.] 1993, no pet.). Likewise, a defendant is not excused from complying with the requirements

of the statute because, unknown to him, a call to emergency medical authorities has been made by

someone. Nor may he leave to others his duty under the statute. Appellant cites no authority to

support his contention. We reject the argument. (4)

Appellant also argues without merit that, even if he had the physical ability, he

should not have attempted to move the complainant from her vehicle because it is common

knowledge that greater injury may be caused by moving an injured person without the presence

of expert medical assistance. The evidence shows that the complainant was out of her vehicle

before appellant left the scene. His assertion of common knowledge does not reflect an

insufficiency of the evidence.

Next, appellant argues that he did not have the actual ability to carry the

complainant to a medical facility because of his physical condition after the accident and the fact

that the vehicle he had been driving was disabled. In addition to failing to cite authorities,

appellant does not point out how these facts absolve appellant of any guilt and render the evidence

insufficient as a matter of law. The record shows that appellant was stunned after the accident,

but was able to walk around retrieve an envelope from his car, and then leave the scene and hop

in a passing truck. He did not report to a hospital until three hours after he left the scene.

In the second part of his argument, appellant urges the insufficiency of the evidence

because the State failed to allege or prove a culpable mental state. We have earlier discussed that

count two of the indictment did not allege a culpable mental state, but that there was no objection,

and any error was waived. In submitting count two to the jury, the trial court required that the

jury find beyond a reasonable doubt that appellant intentionally or knowingly did not remain at

the scene of the accident before it could convict under count two. Proof of a culpable mental state

generally relies upon circumstantial evidence. See Dillon v. State , 574 S.W.2d 92, 94 (Tex. Crim.

App. 1978); Rodriguez v. State , 793 S.W.2d 744, 748 (Tex. App.--San Antonio 1990, no pet.).

Intent and knowledge can be inferred from acts, words, and conduct of the accused. See Dues v.

State , 634 S.W.2d 304, 305 (Tex. Crim. App. 1985); Parramore v. State , 853 S.W.2d 741, 745

(Tex. App.--Corpus Christi 1993, pet. ref'd). The trier of fact may infer intent and knowledge

from any facts in evidence which tend to prove the existence of such culpable mental states. See

Skillern v. State , 890 S.W.2d 849, 880 (Tex. App.--Austin 1994, pet. ref'd).

In other portions of his argument, appellant complains that the indictment did not

allege any offense at all. This contention has been rejected in our discussion of another point of

error along with appellant's argument that the State did not allege failure to stop. The allegation

of "failure to stop" was abandoned and the indictment still charged the offense of "failure to

remain at the scene." "Failure to stop" is not an essential element of the offense charged. See

Sheridan v. State , 950 S.W.2d 755, 757 (Tex. App.--Fort Worth 1997, no pet.); Elias , 693

S.W.2d at 587 . Appellant complains that his counsel failed to object to the lack of a "necessity"

defense, but this is an ineffective assistance of counsel claim, not a sufficiency issue. The failure

to request a defensive issue in the court's charge generally waives any error. See Posey v. State ,

966 S.W.2d 57, 61 (Tex. Crim. App. 1998). Under the evidence adduced, appellant would not

have been entitled to an instruction on "necessity." See Allen v. State , 971 S.W.2d 715, 720

(Tex. App.--Houston [14th Dist.] 1998, no pet.). In order to warrant a plea of justification based

on necessity, a defendant must specifically admit to the offense. See id. ; Auston v. State , 892

S.W.2d 141, 145 (Tex. App.--Houston [14th Dist.] 1994, no pet.). This includes admission of

the culpable mental state. Allen , 971 S.W.2d at 720 ; Klein v. State , 662 S.W.2d 166, 170 (Tex.

App.--Corpus Christi 1983, no pet.). Appellant did not admit to committing the offense and may

not now maintain he committed it out of necessity.

Viewing the evidence in the light most favorable to the verdict, we conclude that

a rational trier of fact could have found, beyond a reasonable doubt, all the essential elements of

the offense charged in count two of the indictment. We overrule point of error one.

Factual Sufficiency

In the second point of error, appellant challenges the factual sufficiency of the

evidence to sustain the conviction. Factual and legal sufficiency questions are decided by different

standards of review. See Clewis v. State , 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). In

evaluating a factual sufficiency question, the appellate court begins with the presumption that the

evidence is legally sufficient to support the conviction. Id. at 134 . In this type of analysis, the

reviewing court views all the evidence without the prism of "in the light most favorable to the

prosecution," and sets aside the verdict only if it is so contrary as to be clearly wrong and unjust.

See Cain v. State , 958 S.W.2d 404, 407 (Tex. Crim. App. 1997); Clewis , 922 S.W.2d at 129 .

There must always be a deference to the findings of the jury. See Cain , 958 S.W.2d at 407 . "A

Court of Appeals may not reverse a jury's decision simply because it disagrees with the result; the

appellate court must defer to jury findings and may find the evidence factually insufficient only

where necessary to prevent manifest injustice." Id . In the event a court of appeals finds the

evidence factually insufficient, it must provide a detailed explanation of that finding so that it is

clear that the court accorded the proper deference to the jury findings. Id.

Appellant argues that "[w]hile the evidence reflects that appellant never talked to

the complainant before he left the scene, it is without doubt that appellant [who did not testify] saw

that numerous other persons were present and assisting the complainant before he left to obtain

his own medical treatment." After viewing all the evidence and applying the factual sufficiency

standard of review, we conclude that the jury verdict is not so contrary to the overwhelming

weight of the evidence as to be clearly wrong and manifestly unjust. The second point of error

is overruled.

Ineffective Assistance of Counsel

In his third and fourth points of error, appellant claims that he was denied the

effective assistance of counsel as guaranteed by the Sixth Amendment to the United States

Constitution and article I, section 10 of the Texas Constitution.

The standard for testing claims of ineffective assistance of counsel was adopted in

Strickland v. Washington , 466 U.S. 668 (1984). In Strickland , the United States Supreme Court

held that in order to show ineffective assistance of counsel, a convicted defendant must (1) show

that his trial counsel's performance was deficient, in that counsel made such serious errors he was

not functioning effectively as counsel; and (2) show that the deficient performance prejudiced the

defense to a degree that the defendant was deprived of a fair trial. A strong presumption exists

that counsel rendered adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment. Id. at 469.

The Strickland standard has been adopted in Texas for resolving allegations of

ineffective assistance of counsel under both the federal and state constitutions. See Hernandez v.

State , 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); Banks v. State , 819 S.W.2d 676, 681 (Tex.

App.--San Antonio 1991, pet. ref'd).

Whether the Strickland standard has been met is to be judged by the "totality of the

representation" rather than by isolated acts or omissions of trial counsel, and the test is applied

at the time of the trial, not through hindsight. Strickland , 466 U.S. at 695 ; McFarland v. State ,

928 S.W.2d 482, 500 (Tex. Crim. App. 1996); Wilkerson v. State , 726 S.W.2d 542, 548 (Tex.

Crim. App. 1986), cert. denied , 480 U.S. 940 (1987). Any allegation of ineffectiveness must be

firmly founded in the record and the record must affirmatively demonstrate the alleged

ineffectiveness. See Ex parte Cruz , 739 S.W.2d 53, 59 (Tex. Crim. App. 1987). The burden of

proving ineffective assistance of counsel by a preponderance of evidence rests upon the convicted

defendant. Patrick v. State , 906 S.W.2d 481, 495 (Tex. Crim. App. 1995), cert. denied, 517

U.S. 1106 (1996); Moore v. State , 694 S.W.2d 528, 531 (Tex. Crim. App. 1985); Banks , 819

S.W.2d at 681 . Both prongs of the Strickland test must be shown. Failure to do so defeats the

ineffectiveness claim. See McFarland , 928 S.W.2d at 500 .

The particular facts and circumstances of each case must be considered in any

ineffective assistance claim. See Johnson v. State , 691 S.W.2d 619, 626 (Tex. Crim. App. 1984),

cert. denied , 474 U.S. 865 (1985). Any error in trial strategy will be deemed ineffective

assistance of counsel only if counsel's actions are without any plausible basis. See Ex parte Burns ,

601 S.W.2d 370, 372 (Tex. Crim. App. 1980); Castoreno v. State , 932 S.W.2d 597, 601 (Tex.

App.--San Antonio 1996, pet. ref'd). The Strickland standard has never been interpreted to mean

that the accused is entitled to errorless or perfect counsel. See Bridge v. State , 726 S.W.2d 558,

571 (Tex. Crim. App. 1986). Due to the wide range of lawyering skills and judgment, a lawyer's

performance is not required to be perfect. See Greene v. State , 928 S.W.2d 119, 122 (Tex.

App.--San Antonio 1996, no pet.).

Appellant sets out what he describes as a "litany" of either direct errors, omissions

committed, or other suspicious or questionable actions taken by trial counsel. Appellant's counsel

on appeal recognizes that "some" of the errors or omissions would not, in and of themselves, be

sufficient to demonstrate that trial counsel was "legally ineffective." He believes, however, that

these matters provide this Court with the "entire picture" of trial counsel's performance so that

the court will be able to render an appropriate ruling. (5) Appellant's difficulties in demonstrating

ineffective assistance of counsel arise from the fact that he has only the instant appellate record

to support any claim made. (6) Where record sources are inadequate to demonstrate a claim of

ineffectiveness, appellate counsel often argue that they would have pursued a different course of

action or tried the case differently. That fact will not support a finding of ineffectiveness. See

Ingham v. State , 679 S.W.2d. 503, 509 (Tex. Crim. App. 1984); Blott v. State , 588 S.W.2d 588,

592 (Tex. Crim. App. 1979); Ybarra v. State , 890 S.W.2d 98, 112 (Tex. App.--San Antonio

1994, pet. ref'd). Moreover, assertions in appellate briefs not supported in the record cannot be

accepted as fact. See Vanderbilt v. State , 629 S.W.2d 709, 717 (Tex. Crim. App. 1981).

Belated Entry

Appellant initially claims that his trial counsel made a belated entry into the case

based solely upon a formal motion filed November 19, 1996, requesting that trial counsel be

substituted for previous counsel. The jury selection began on November 18, 1996, with trial

counsel representing appellant. There is some indication in the record that counsel had been

involved in the case in September 1996, not just on the day jury selection began. Appellant

announced ready for trial, and upon inquiry by the court, appellant and his retained trial counsel

assured the court that he had more than ten days to prepare for trial. On appeal, appellant

acknowledges that a belated entry does not constitute ineffective assistance but believes it gives

a gloss to his other contentions. The record is not adequate to establish the belated entry claimed.

Counsel's Health

Appellant raises a question of trial counsel's health during trial referring to "ulcer

attacks." He gives one record page reference, cites no authority, and presents no argument except

to suggest a continuance should have been requested.

One afternoon during the trial, defense counsel asked the court for permission to

remain seated when addressing the court as her "ulcer was kicking in" and it was painful.

Permission was granted. No recess was requested. The next morning upon inquiry, counsel told

the court that she was feeling much better. Without more in the record, appellant has not

sustained his burden of proof as to this claim. This is also an obvious gloss to appellant's overall

contention.

Judicial Notice

Appellant contends that in determining whether he was deprived of the effective

assistance of counsel this Court should take judicial notice of the record of another case pending

in this Court in which the State Bar of Texas is seeking disbarment of appellant's trial counsel.

Appellant asserts that the State Bar's action is based on counsel's conduct prior to the instant trial.

Appellant is not claiming, however, that trial counsel was not in good standing with the State Bar

at the time of the instant trial.

An appellate court is bound by the record before it. See Thomas v. State , 723

S.W.2d 696, 701 (Tex. Crim. App. 1986); McCambridge v. State , 712 S.W.2d 499, 505 (Tex.

Crim. App. 1986). The general rule is that an appellate court cannot go to the record of another

case for the purpose of considering matters and testimony not shown in the record of the case

before it. See Evans v. State , 622 S.W.2d 866, 868 (Tex. Crim. App. 1980); Salinas v. State , 542

S.W.2d 864, 867 (Tex. Crim. App. 1976); Miranda v. State , 813 S.W.2d 724, 738 (Tex.

App.--San Antonio 1991, pet. ref'd). Thus, we may not look to the record of another case to find

support for appellant's contention now raised on appeal in this case. See Garza v. State , 622

S.W.2d 85, 89-90 (Tex. Crim. App. 1981). Appellant's contention is without merit.

Pretrial Motions

Appellant has generally divided the balance of his ineffective assistance claims into

two parts--the lack of certain pretrial motions and trial error. We shall consider each of these

categories.

Appellant's counsel on appeal notes that no pretrial motions were filed by trial

counsel. He concedes that pretrial motions need not be filed and heard in every criminal case, but

argues that some pretrial motions were not only appropriate but "required" in the instant case.

As noted earlier, the fact another counsel might have tried the case differently does not constitute

ineffective assistance of trial counsel. See Ingham , 679 S.W.2d at 509 .

The statute allowing trial courts to set any criminal cause for pretrial hearings is

not a mandatory statute but directed to the trial court's discretion. State v. Reed , 888 S.W.2d 117,

119 (Tex. App.--San Antonio 1994, no pet.); Montalvo v. State , 846 S.W.2d 133, 137 (Tex.

App.--Austin 1993, no pet.). A trial court may decline to hear any pretrial motion filed and

require a defendant to lodge his objections at trial. See Calloway v. State , 743 S.W.2d 645, 649

(Tex. Crim. App. 1988); Bosley v. State , 414 S.W.2d 468, 469-70 (Tex. Crim. App.), cert.

denied , 389 U.S. 876 (1967). Thus, the filing of a pretrial motion does not guarantee a pretrial

hearing. Moreover, the mere failure to file appropriate pretrial motions is not categorically

deemed as ineffective assistance. See Madden v. State , 911 S.W.2d 236, 241 (Tex. App.--Waco

1995, pet. ref'd); Ponce v. State , 901 S.W.2d 537, 542 (Tex. App.--El Paso 1995, no pet.); Wills

v. State , 867 S.W.2d 852, 857 (Tex. App.--Houston [14th Dist.] 1993, pet. ref'd); Martinez v.

State , 824 S.W.2d 688, 690 (Tex. App.--El Paso 1992, pet. ref'd). In addition, an appellant must

show that the pretrial motion would have been granted in order to satisfy Strickland, see Jackson

v. State , 973 S.W.2d 954, 957 (Tex. Crim. App. 1998), or show how he was harmed. See

Cavazos v. State , 899 S.W.2d 5, 8 (Tex. App.--San Antonio 1995, pet. ref'd); Valdez-Fuerte v.

State , 892 S.W.2d 103, 111 (Tex. App.--San Antonio 1994, no pet.).

Motion for Continuance

Appellate counsel believes a pretrial motion for continuance was "required" to be

filed by trial counsel in the instant case. He speculates that if there was a belated entry into the

case by trial counsel or if more time was needed to prepare for trial or to file other pretrial

motions, counsel should have sought a continuance. Appellant makes no showing how such a

motion would have been successful or how he was harmed. Moreover, the contention is not

properly briefed. See Tex. R. App. P. 38.1(h).

Discovery

Appellant takes note that no pretrial discovery motion was filed. He contends that

the reporter's record indicates that trial counsel had not reviewed medical records or photographs

of the accident scene, did not know of the immunity agreement between the State and witness

Karen Rodriguez, and was unaware of a tape-recorded conversation made by appellant. Only

record page references are given to support these assertions. (7) There is no showing that a pretrial

discovery motion would have covered all the matters mentioned and would have been meritorious

and successful. See Valdez-Fuerte , 892 S.W.2d at 111. A claim that counsel was ineffective for

failing to file a motion for discovery was rejected in Passmore v. State , 617 S.W.2d 682 (Tex.

Crim. App. 1981). There was no support in the Passmore record concerning the existence of the

matter the defendant maintained could have been discovered. In addition, there was no showing

what type of informal discovery had occurred. Id. at 685 . The record in the instant case is

inadequate to clearly establish that trial counsel failed to review certain matters or was totally

unaware of other matters. Furthermore, the type of informal discovery that might have occurred

is not shown.

Under the discovery discussion in appellant's brief, complaint is also made that trial

counsel did not file a pretrial motion requesting that the prosecution to inform her what extraneous

offenses might be used or what prior convictions might be offered. Rule 404(h) of the Texas

Rules of Evidence is cited. The matter is not otherwise briefed. The failure to object to

inadmissible evidence, even extraneous offenses, does not necessarily constitute ineffective

assistance of counsel. See Ybarra , 890 S.W.2d at 113 . It follows that the failure to file a pretrial

motion or a request under Rule 404(h) does not necessarily constitute ineffectiveness. There is

nothing to show appellant was unable to acquaint his trial counsel with his past criminal record

or that she was unaware of that record. Moreover, prior convictions were alleged in the

indictment for enhancement of punishment. Appellant does not disclaim informal discovery in this

regard. Clearly, appellant has failed to show harm.

Motion to Quash-Count One

Appellant faults his trial counsel for failing to file a motion to quash or set aside

count one of the indictment alleging the offense of intoxication assault. Tex. Penal Code Ann.

§ 49.07 (West 1994). He urges that the failure to allege the manner and means of intoxication

either by alcohol, controlled substances, or a combination of both rendered count one defective

as it did not give proper notice. The offense of intoxication assault was added to the 1994 Penal

Code and is a relatively new offense. See Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01,

eff. Sept. 1994, 1993 Tex. Gen. Laws 3586 , 3697. Appellant may be correct as to the necessary

allegations but he cites no direct authority decided under section 49.07 of which trial counsel

should have been aware. His principal contention is that a motion to quash would have caused the

State to amend the indictment and that would have given trial counsel at least ten more days to

prepare for trial, (8) or would have preserved error if no amendment had been made. Appellant

makes no effort to show that trial counsel's omission was serious error falling below the

professional norm or that in light of the record and the court's jury charge he was deprived of a

fair trial.

Motion to Quash-Count Two

Appellant also faults trial counsel for not filing a motion to quash count two of the

indictment. He argues that count two failed to allege "failure to stop." The indictment did allege

that appellant "failed to immediately stop" but this allegation was abandoned by the State as

discussed earlier. It was not an essential element of the offense of failing to remain at the scene

of an accident. It is true that culpable mental states were not alleged but the jury charge included

such culpable mental states. No harm has been shown. Counsel is not required to perform

flawlessly. Trial counsel here was not rendered ineffective by the isolated act of omission to file

a motion to quash as to count two.

Trial Errors-Failure to Invoke The Rule

Appellant next moves into the area of trial errors in support of his ineffective

assistance of counsel claims. Appellant argues that the failure to invoke the Rule was a "clear

error indicating lack of concentration and/or knowledge on the part of counsel." The record does

not support appellant's broad-faced statement. Trooper Lovelace's testimony was interrupted so

that a Dr. Rosen could testify. During Dr. Rosen's interrogation, trial counsel observed Lovelace

in the courtroom and asked that the Rule be invoked. Nothing in the record shows that other

witnesses were in the courtroom earlier or later in the proceedings. There is absolutely no basis

for an ineffective assistance claim in this regard.

Other Errors

Appellant complains of his trial counsel's failure to object to "extraneous offenses"

and to hearsay. He makes certain record references but does not offer argument or cite

authorities. These contentions are not properly briefed and appellant has not sustained his burden

of proof. The failure to object to extraneous offenses is not necessarily ineffective assistance,

Ybarra , 890 S.W.2d at 113 , and the isolated omission to object to hearsay does not alone

constitute ineffective assistance. See Ex parte Welborn , 785 S.W.2d 391, 393 (Tex. Crim. App.

1990). Appellant has failed to demonstrate how the two prongs of Strickland were met.

With record references only, appellant complains that his trial counsel also failed

to object to the lack of a predicate for certain testimony of the witnesses Lovelace and Peyton;

failed to object to the collateral impeachment by the State of its own witness, Carla Peacock;

delayed objecting to interrogation of Peacock about appellant's "background and criminal

history"; and did not move for a mistrial after an objection to such testimony was sustained.

Appellant also observes that his trial counsel called Peacock's sister, Sheryl Robertson, to rebut

Peacock's impeachment, which resulted in Robertson's own impeachment by the State with letters

written by appellant. Appellant then questions how the State obtained possession of such letters

and complains that counsel did not pursue any inquiry as to whether the letters were properly

obtained by the prosecution. Appellant has made a laundry list and has not properly briefed the

contentions. See Tex. R. App. P. 38.1(h). He has not sustained his burden of proof.

In addition, appellant complains that the State in its jury argument made reference

to extraneous offenses in the record without further objections by trial counsel. The prosecutor

had a right to argue evidence in the record and trial counsel's objections would not have been

sustained. Counsel is not required to perform futile acts in order to be an effective counsel. See

Mooney v. State , 817 S.W.2d 693, 698 (Tex. Crim. App. 1991). Appellant complains that trial

counsel did not request a limiting charge in the jury instructions as to the extraneous offenses.

Such failure is not, by itself, ineffective assistance of counsel. See Greene , 928 S.W.2d at 122

(citing Johnson v. State , 629 S.W.2d 731, 736 (Tex. Crim. App. 1981)). Appellant has made no

effort to sort out which extraneous offenses would have required a limiting instruction and those

that would not. Moreover, he has not shown harm or how he was deprived of a fair trial.

Appellant complains that no defense of necessity was requested. Apparently

appellant makes reference to the court's charge. As earlier discussed, the issue was not raised as

required by law. Counsel cannot be faulted for failing to ask for that for which the defense was

not entitled. See Mooney , 817 S.W.2d at 698 .

Appellant observes that the record reflects several notes were received from the jury

during its deliberations which do not appear to have been answered. Appellant urges that his trial

counsel should have sought a further jury instruction or a clarification for the jury, and yet the

record is silent as to any action by counsel. Appellant cites record references only as to the receipt

of the notes. He does not otherwise brief the issue or show harm. Appellant's contention points

up the difficulty of determining ineffective assistance of counsel from this "cold record" alone.

Appellant also contends that notice of appeal was not given by trial counsel who in

fact "abandoned" him after sentencing. This is a post-trial complaint. This Court extended the

time to file notice of appeal and appellant has failed to show how he was harmed by any delay.

The record is not sufficiently developed so that this Court can apprize the contention.

We have tried to examine each act and omission cited by appellant in determining

whether trial counsel's performance was deficient. Judicial scrutiny must be highly deferential.

A reviewing court must indulge a strong presumption that trial counsel's conduct falls within the

wide range of reasonable professional assistance. See Oestrick v. State , 939 S.W.2d 232, 237

(Tex. App.--Austin 1997, pet. ref'd). And generally, we will not speculate about trial counsel's

trial strategy. See Jackson , 877 S.W.2d at 771; Mayhue v. State , 969 S.W.2d 503, 511 (Tex.

App.--Austin 1998, pet. ref'd). An appellant may rebut the presumption of effectiveness by

providing a record from which an appellate court may determine that counsel's performance at

trial was not based on sound trial strategy or that it had no plausible basis. See Jackson , 877

S.W.2d at 771-72; Bohnet v. State , 938 S.W.2d 532, 536 (Tex. App.--Austin 1997, pet. ref'd).

In this case the record presented fails to reveal counsel's trial strategy with regard

to the acts and omissions alleged to show ineffective assistance of counsel. In the absence of a

sufficient record on direct appeal, we conclude that appellant has not overcome the strong

presumption that his trial counsel's strategy was reasonable from trial counsel's perspective at

trial. See Mayhue , 969 S.W.2d at 511 . Appellant has failed to sustain either prong of the

Strickland test. Points of error three and four are overruled.

Deadly Weapon

In point of error five, appellant contends that the trial court erred in making an

affirmative finding of the use of deadly weapon in the judgment of conviction under count two

(failing to remain at the scene of an accident) as a matter of law. See Tex. Code Crim. Proc. Ann.

art. 42.12, § 3g(a)(2) (West Supp. 1999). The State urges that an automobile can be a deadly

weapon if the evidence shows that in the manner of its use or intended use, it was capable of

causing death or serious bodily injury. See Davis v. State , 964 S.W.2d 352, 354 (Tex.

App.--Fort Worth 1998, no pet.).

The offense of failure to remain at the scene of an accident under article 6701d,

sections 38 and 40 is by its nature an offense of omission as opposed to an offense of commission.

A deadly weapon finding has been upheld where a weapon was used to facilitate a crime by

omission. See Hill v. State , 913 S.W.2d 581, 583-84 (Tex. Crim. App. 1996). In that case, the

Court stated that before an affirmative finding as to the use of a deadly weapon may be made, the

State must prove, beyond a reasonable doubt, that the accused employed or used a deadly weapon

so as to facilitate the associated felony. Id. at 583 .

In this case, appellant did not facilitate his failure to remain at the scene of the

accident and render reasonable assistance by the use of a deadly weapon. The State argues that

appellant's use of an automobile in connection with the accident resulting in injury supports the

trial court's finding at the penalty stage of the trial without a jury (9) that appellant used a deadly

weapon, to wit: an automobile, in connection with the offense of which he was convicted.

Although the occurrence of an automobile accident is essential to support a conviction of failing

to remain at the scene of the accident, the gravamen of the offense relates to the accused's failure

to remain at the scene and render reasonable assistance after the accident. See Sheridan , 950

S.W.2d at 759 . Appellant did not use an automobile as a deadly weapon to facilitate his failure

to remain at the scene and render reasonable assistance as charged in the indictment. Id.

Therefore, the judgment of conviction as to count two is reformed to delete the affirmative finding

of a deadly weapon. Point of error five is sustained.

The judgment for intoxication assault is affirmed. The judgment for failing to

remain at the scene to render reasonable assistance is reformed to delete the affirmative finding

that appellant used a deadly weapon. As reformed, the judgment is affirmed.

John F. Onion, Jr., Justice

Before Justices B. A. Smith, Yeakel and Onion *

Count One: Affirmed

Count Two: Reformed and, as Reformed, Affirmed

Filed: December 17, 1998

Do Not Publish

* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by

assignment. See Tex. Gov't Code Ann. § 74.003 (b) (West 1998).

1. See Tex. Penal Code Ann. § 49.07 (West 1994).

2. See Tex. Rev. Civ. Stat. Ann. art. 6701d, §§ 38, 40 (West 1977), repealed by Act of

April 21, 1995, 74th Leg., R.S., ch. 165, § 24(a) eff. Sept. 1, 1995, 1995 Tex. Gen. Laws 1025 ,

1870-71. See now Tex. Transp. Code Ann. §§ 550.021-550.023 (West 1998).

3. The trial court entered two separate judgments and sentences.

4. We have found three cases that at first blush seem to support appellant's argument. See

Bowden v. State , 361 S.W.2d 207, 208 (Tex. Crim. App. 1962); Powell v. State , 341 S.W.2d

915, 916 (Tex. Crim. App. 1961); Williams v. State , 102 S.W.2d 212, 214 (Tex. Crim. App.

1937). We find these cases distinguishable on the facts and for the reasons set forth in Allen v.

State , 971 S.W.2d 715, 718-19 (Tex. App.--Houston [14th Dist.] 1998, no pet.).

5. The State counters with a lengthy description of defense counsel's acts, conduct, and

objections at trial contending that from the "totality of the representation" counsel was not

ineffective under the Strickland standard.

6. No motion for new trial was filed raising the issue of ineffective assistance of counsel.

See Reyes v. State , 849 S.W.2d 812 (Tex. Crim. App. 1993) (defendant may raise an ineffective

assistance issue in his motion for new trial and in the hearing thereon).

7. An examination of the record page references does not support the expansive claims made.

A claim of ineffective assistance must be firmly founded. See Ybarra , 890 S.W.2d at 112 .

8. See Tex. Code Crim. Proc. Ann. art. 28.10(a) (West 1989).

9. The trial court is authorized to make an affirmative finding of the use or exhibition of a

deadly weapon in the commission of the offense where the trial court is the trier of fact at the

penalty stage of the trial and where the jury at the guilt-innocence stage of the trial has made no

such finding. See Ex parte Franklin , 757 S.W.2d 778, 780 (Tex. Crim. App. 1988); Fann v.

State , 702 S.W.2d 602, 604-05 (Tex. Crim. App. 1986) (op. on reh'g); Campos v. State , 927

S.W.2d 232, 235 (Tex. App.--Waco 1996, no pet.).

, to wit: an automobile, in connection with the offense of which he was convicted.

Although the occurrence of an automobile accident is essential to support a conviction of failing

to remain at the scene of the accident, the gravamen of the offense relates to the accused's failure

to remain at the scene and render reasonable assistance after the accident. See Sheridan , 950

S.W.2d at 759 . Appellant did not use an automobile as a deadly weapon to facilitate his failure

to remain at the scene and render reasonable assistance as charged in the indictment. Id.

Therefore, the judgment of conviction as to count two is reformed to delete the affirmative finding

of a deadly weapon. Point of error five is sustained.

The judgment for intoxication assault is affirmed. The judgment for failing to

remain at the scene to render reasonable assistance is reformed to delete the affirmative finding

that appellant used a deadly weapon. As reformed, the judgment is affirmed.

John F. Onion, Jr., Justice

Before Justices B. A. Smith, Yeakel and Onion *

Count One: Affirmed

Count Two: Reformed and, as Reformed, Affirmed

Filed: December 17, 1998

Do Not Publish