Norman A. Dean v. The State of Texas--Appeal from County Court at Law No 11 of Bexar County

MEMORANDUM OPINION
No. 04-03-00255-CR
Norman A. DEAN,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 11, Bexar County, Texas
Trial Court No. 810083
Honorable Jo Ann De Hoyos, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Sandee Byran Marion, Justice

Delivered and Filed: June 16, 2004

AFFIRMED

A jury convicted Norman A. Dean of failure to stop and give information. The judge sentenced Dean to 180 days of confinement and probated Dean's sentence over an 18-month period. The judge also assessed a $1500 fine. Dean appeals the judgment of the trial court in two issues. We affirm the judgment of the trial court.

Ineffective Assistance of Counsel

Dean first argues that he was denied effective assistance of counsel. Because the test for ineffective assistance of counsel is the same under the state and federal constitutions, we measure a claim of ineffective assistance of counsel against the two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986). The appellant must first show that his attorney's performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Second, assuming the appellant has demonstrated deficient assistance, he must affirmatively prove prejudice. Id. In other words, the appellant must show a reasonable probability that, but for his attorney's errors, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

The assessment of whether a defendant received effective assistance of counsel must be made according to the facts of each case. Id. at 813. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel's conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation. Id.; Thompson, 9 S.W.3d at 813-14. In the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel. Bone, 77 S.W.3d at 833.

Dean argues that his trial counsel failed to file motions in a timely manner, failed to object to testimony throughout the trial, and failed to participate in voir dire. These failures, Dean contends, constitute an ineffective assistance of counsel. Here, however, the record does not reflect the attorney's reasons for failing to do these things. Dean's complaint, therefore, involves action that may or may not have been grounded in sound trial strategy. Accordingly, there is no basis on which to find that counsel's representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel's conduct was reasonable and professional. Accordingly, Dean's allegations of ineffective assistance of counsel are not firmly founded in the record.

Where allegations of ineffective assistance are not firmly founded in the record, the issues are better presented within the framework of a post-conviction writ of habeas corpus under article 11.07 of the code of criminal procedure. Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2003); Ex parte Torres, 943 S.W.2d 469, 475-76 (Tex. Crim. App. 1997); see also Thompson, 9 S.W.3d at 813 ("A substantial risk of failure accompanies an appellant's claim of ineffective assistance of counsel on direct appeal. Rarely will a reviewing court be provided the opportunity to make its determination on direct appeal with a record capable of providing a fair evaluation of the merits of the claim . . . .").

Because Dean's allegations of ineffective assistance of counsel are not firmly founded in the record, we overrule his first issue.

Factual Sufficiency

Dean next argues that the evidence is factually insufficient to support his conviction. Under a factual sufficiency review, we ask whether "a neutral review of all the evidence . . . demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003) (quoting Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). We must be deferential to the fact finder and careful not to invade the province of the jury to assess the credibility and weight of the evidence. Johnson, 23 S.W.3d at 9.

To prove that Dean committed the offense of failure to stop and give information, the State had to prove that (1) Dean was the operator of a vehicle involved in an accident resulting in damage to a vehicle driven or attended by another person; and (2) Dean failed to stop and give his name and address, the registration number of the vehicle he was driving, and the name of his liability insurer to any person injured or the operator or occupant of or person attending a vehicle involved in the collision. Tex. Transp. Code Ann. 550.023 (Vernon 1999).

Here, Jeffrey Vargas testified that on July 13, 2001, he and his family were on their way home from eating dinner at a restaurant when a man in a navy blue Chevy Lumina rear-ended them. According to Jeffrey, he and the man both exited their cars to survey the damage. Jeffrey's wife, Karen Vargas, also stepped out to join them. According to Jeffrey, his wife asked the man for insurance information, and the man replied, "You shut the fuck up, bitch, you weren't driving." Then, after a brief exchange between Jeffrey and the man, the man told Jeffrey to follow him to a nearby parking lot. The man failed, however, to pull into the parking lot. Instead, "he acted like he was going to turn in there and then he just took off." When Jeffrey realized the man was fleeing, he told Karen to take down the man's license plate number.

Jeffrey subsequently made a police report. He gave the police a description of the man and his car, as well as the license plate number of the car. The police determined that the car was registered to a Norman Dean. The police then asked Jeffrey to come down to the police department and look at some photos. The police showed Jeffrey a photo line-up of six men. Jeffrey identified Dean as the person who rear-ended him.

At trial, Jeffrey testified that the car that rear-ended the Vargases had stock rims and a broken taillight. He also testified that after the accident, he saw Dean in a car that had aftermarket rims and a fixed taillight. Jeffrey also testified although Dean's car had more damage than the Vargases' car, the Vargases' car sustained over $200 in damage.

Karen Vargas also testified at trial. She identified Dean as the driver who struck them and fled the scene. She also identified Dean in a photo line-up after the accident. Additionally, Karen testified that at no time did Dean provide her or her husband with his name, address, the registration number of his car, or the name of his liability insurance carrier.

The record also contains evidence that Dean was not the driver of the car that struck the Vargases. Rolanda Warford, Dean's girlfriend, testified that during the time period in which the accident was alleged to have occurred, Dean was with her at home. Additionally, Warford testified that Dean's car is black, not navy blue. Warford also testified that, at the time of the alleged accident, the car was not damaged in any way. Warford also testified that there are three other vehicles in the area of the accident that look like Dean's. Also, Officer Clark, the officer who handled the investigation, testified that while a license plate number indicates the owner of a car, it does not necessarily indicate the driver.

Dean points to this testimony as proof that the evidence is factually insufficient to support his conviction. We disagree. While this evidence suggests the possibility that the driver who rear-ended the Vargases was not Dean, it does not necessarily lead a rational jury to that conclusion. There is an abundance of evidence pointing to Dean's guilt, including the testimony of two eyewitnesses. The evidence as a whole is not so weak as to undermine confidence in the jury's determination. Accordingly, we conclude that the evidence is factually sufficient to support Dean's conviction. We overrule Dean's second issue.

Conclusion

Having considered and overruled Dean's two issues, we affirm the judgment of the trial court.

Karen Angelini, Justice

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