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Court of Appeals of Texas, Dallas.


No. 05–10–01275–CR

Decided: December 16, 2011

Before Justices Moseley, Francis, and Myers


Opinion By Justice Francis

Johnny Ali Laroussi appeals his conviction for failing to stop and render aid in an accident involving personal injury.   After finding him guilty, the trial court assessed punishment, enhanced by a prior conviction, at ten years in prison.   In two issues, appellant claims the evidence is legally insufficient to support his conviction and he received ineffective assistance of legal counsel at trial.   We affirm.

In his first issue, appellant claims the evidence is legally insufficient to support his conviction because no evidence shows he drove the vehicle involved in the collision with David Garrett.

In reviewing a challenge to the sufficiency of the evidence, we review the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.   See Jackson v. Virginia, 443 U.S. 307, 319 (1979);  Hooper v. State, 214 S.W.3d 9, 14 (Tex.Crim.App.2007).   We give deference to “the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”  Hooper, 214 S.W.3d at 14.   The factfinder is the sole judge of the witnesses' credibility and the weight to be given their testimony and therefore, is free to accept or reject any or all evidence presented by either side.   See Lancon v. State, 253 S.W.3d 699, 707 (Tex.Crim.App.2008).   Reconciling conflicts in the evidence is one of the functions of the trier of fact.   See Tex.Code Crim. Proc. Ann. arts. 36.13 (West 2007), 38.04 (West 1979);  Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App.1986).   Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor and, alone, may be sufficient to establish guilt.   See Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007).

In an motor vehicular accident involving personal injury, a person commits an offense if he fails to (1) immediately stop the vehicle at the scene of the accident or as close to the scene as possible;  (2) immediately return to the scene of the accident if the vehicle is not stopped at the scene of the accident;  and (3) remain at the scene of the accident until the operator complies with the requirements of section 550.023.   Tex. Transp.  Code Ann. §§ 550.021, .023 (West 2011).   Where there is no direct evidence a defendant was driving the vehicle involved, circumstantial evidence can establish the defendant's guilt.  Clausen v. State, 682 S.W.2d 328, 332 (Tex.App.—Houston [1st Dist.] 1984, pet. ref'd).   Such evidence may include a witness's testimony, paint samples from the defendant's vehicle matching those left at the scene, and otherwise unexplained damage to defendant's vehicle.  Id.

Although appellant claims the State's evidence failed to establish appellant was driving the truck that hit Garrett, we disagree.   Garrett was riding his motorcycle home from work around 11:30 p.m. on May 26, 2006.   He heard a noise, felt an impact, and realized he had been struck from behind.   His motorcycle went down and he hit the pavement, tumbling for “quite a ways.”   He was conscious the entire time and was aware that people came up to him, asking if he needed help.   The paramedics came and took him to the hospital where he was diagnosed with nine broken vertebrae, fourteen broken ribs, and other related injuries.   Garrett said at no time did anyone come up to him admitting responsibility, giving his name, address, or proof of insurance, or showing his driver's license.   Appellant did not come up to him at the scene and ask how he was or otherwise identify himself to Garrett.

The Dallas County Sheriff's Department investigated the accident and received information from an eyewitness about the license plate of the white pickup truck that hit Garrett.   Deputy Edward Wilson located the pickup truck outside appellant's house.   Detective Darrell Doty met Wilson at the house, and the two officers knocked on the door around four in the morning.   Appellant answered.   He smelled of alcohol, had bloodshot eyes, and slurred his speech;  Wilson saw a can of beer on the table.   When asked, appellant indicated he was not aware his truck might have been involved in an accident.   The officers asked him to look at the truck with them;  he walked immediately to the front right bumper which was damaged.   Doty said appellant went straight to the area “like he knew where the damage already was.”   Appellant then told officers he needed to get his wife who was sleeping.

Appellant and his wife returned to their driveway where the officers were waiting.   Appellant said he had been home since 2:30 in the afternoon and that some of his employees use his truck.   He claimed one employee, Kimi Ceron, had been driving the truck the day before.   Appellant's wife stood behind him, shaking her head.   She appeared aggravated with her husband.   He asked if anyone was injured;  when the officers told him the motorcyclist had been injured, appellant stood looking at the ground with his head hanging down.   Appellant gave the officers consent to search his truck;  they took photographs of the damage and collected paint samples, including some purple paint, from the truck.   Doty later collected purple paint samples from Garrett's motorcycle.   John Witkowski, a forensic scientist with the Trace Evidence Section of the Texas Department of Public Safety, compared the purple paint taken from appellant's truck and the paint taken from Garrett's motorcycle bumper and stated the samples were similar in layer structure and color.

Alquimer Ceron, known as “Kimi,” had worked as a painter for appellant for about fifteen years.   He drove a 1994 Chevy van but, when it broke down, he borrowed appellant's truck.   According to Ceron, appellant had two trucks:  a small white Chevy pickup and a larger white Dodge Ram pickup.   Ceron drove the smaller Chevy truck sometime after his birthday in mid-July 2006.   He did not drive the Dodge truck.

Appellant's wife said the Dodge truck was in the driveway when she left for work and it was there when she returned home around 2:30 or 3:00 that afternoon.   Appellant was also home.   Although they drank some wine that evening, appellant was not drunk.   She went to bed around 10:00 p.m. According to Mrs. Laroussi, appellant usually drove the Chevy truck, not the Dodge.   She did not drive the Dodge truck nor did she know where the keys to the Dodge truck were on the night of the accident.

The above evidence shows a white Dodge pickup truck owned by appellant hit Garrett near midnight on May 26, 2006.   No one at the scene claimed responsibility.   An eyewitness followed the truck and got the license plate information.   The truck was located at appellant's house around 4:00 a.m. Although appellant appeared confused and intoxicated, he did walk directly to the front right bumper of the truck when the investigating officers asked him to look at the damage on the truck, as though “he knew where the damage already was.”   Appellant appeared upset when officers told him the motorcyclist had been injured.   Appellant was the primary driver of the truck which had been at appellant's house all day and was there when police arrived about four hours after the accident.

After considering the entire trial record and viewing the evidence in the light most favorable to the verdict, a reasonable factfinder could conclude appellant was driving the Dodge truck when it hit Garrett, he did not immediately stop at the scene of the accident or immediately return to the scene of the accident, and he did not remain at the scene of the accident until complying with the requirements of section 550.023 of the transportation code.   We conclude the “cumulative force of all the incriminating circumstances” is sufficient to support the conviction.   See Hooper, 214 S.W.3d at 13.   We overrule appellant's first issue.

In his second issue, appellant claims he received ineffective assistance of counsel at trial.   Appellant filed a motion for new trial raising ineffective assistance of counsel.   Following a three-day hearing over a four-month period, the trial court denied the motion for new trial.   Appellant assigns this ruling as error.

We examine ineffective assistance of counsel claims under well established standards.  Strickland v. Washington, 466 U.S. 668 (1984);  Hernandez v. State, 726 S.W.2d 53, 56–57 (Tex.Crim.App.1986).   To obtain reversal based on ineffective assistance of counsel, an appellant must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for counsel's errors, the result of the proceeding would have been different.   See Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App.2005).   Failure to make the required showing defeats the ineffectiveness claim.   See Williams v. State, 301 S.W.3d 675, 687 (Tex.Crim.App.2009);  Andrews, 159 S.W.3d at 101.   Our review of counsel's performance is highly deferential and begins with the assumption that counsel's conduct fell within the wide range of reasonable professional assistance.   See Andrews, 159 S .W.3d at 101.   An ineffective assistance claim must be “firmly founded in the record,” and the record must affirmatively demonstrate that the claim has merit.  Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005).   We assume a strategic motive if any can be imagined and find counsel's performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it.  Andrews, 159 S.W.3d at 101.

The court of criminal appeals has made clear that, in most cases, a silent record which provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance.   See Rylander v. State, 101 S.W.3d 107, 110–11 (Tex.Crim.App.2003).   Further, counsel should ordinarily be accorded an opportunity to explain his actions before being condemned as unprofessional and incompetent.  Id. at 111.

Appellant's complaint on appeal appears to raise four areas of purported deficiencies:  failure to examine medical records;  failure to object to appellant's right to confront a witness;  handling of certain witnesses;  and inadequate investigation of a subsequent accident involving the same vehicle.   Appellant's written motion for new trial generally alleged ineffective assistance of counsel;  the three-day hearing on ineffective assistance focused solely on whether trial counsel was ineffective for failing to adequately investigate a June 29, 2006 hit-and-run accident involving appellant's truck.

With respect to his first three complaints, appellant did not raise these arguments during the motion for new trial hearing.   In fact, he affirmatively stated the ineffective assistance claim was limited to the failure to investigate the June 2006 accident allegation.   Thus, the record provides no discernible explanation of the motivation behind the actions counsel did or did not take and whether they were of strategic design or the result of negligent conduct.   Consequently, we conclude appellant has not met his burden of demonstrating by a preponderance of the evidence that counsel's performance was deficient or that the outcome of his trial would have been different but for counsel's actions or inactions with respect to his first three complaints.

In his fourth complaint under this issue, appellant argues trial counsel was ineffective for failing to adequately investigate a wreck involving appellant's white Dodge pickup that occurred two months after the accident in this case.   Appellant claims this information was vital to the defense of his failure to stop and render aid case because it showed someone other than appellant was driving the Dodge pickup.   He contends trial counsel was ineffective because he did not introduce this information during trial.

The motion for new trial hearing lasted three days.   Christopher McIntosh testified a white Dodge pickup hit his Ford Tahoe while he was trying to merge onto the highway on June 29, 2006.   The rearview mirror of the Dodge hit his truck, breaking the rear side window.   Nevertheless, he merged onto the highway, then stopped in front of the pickup to tell the driver they needed to exchange insurance information.   The driver of the Dodge, a woman he described as “heavyset, middle—I'd—I'd guess 50s, short hair, glasses” told him she was a Dallas police officer, he had “really screwed up,” and she did not have to do anything.   She then drove around McIntosh and sped off.   He jumped in his car and followed until he got the license plate number of the Dodge.   The pickup was registered to appellant and his wife.   During the hearing, McIntosh was asked if he could identify appellant's wife as the driver.   He said he could not be 100% sure but did state the driver was not appellant.

Several other witnesses testified.   Officer Dudley Marchetti was the police officer who responded to McIntosh's 9–1–1 call.   According to Marchetti's police report, the driver of the Dodge pickup was a young woman.   He said he processed the license plate number, identified appellant and his wife as the owners of the pickup that hit McIntosh, verified there were no Dallas police officers with the same last name as appellant, and turned the case over to a detective.   The case had not been solved and was still considered “open.”

Appellant's wife testified several friends and employees had access to the Dodge pickup and that she and appellant kept a key under the mat and another in the sprinkler box on the side of the garage.   She denied being the driver of the truck when it hit McIntosh, but conceded she was 52 years old.   She had not seen a woman drive the Dodge pickup and when asked specifically to name people who had driven the pickup, she could name only Wayne Sullivan.   She denied having been contacted by police about the incident and vacillated on when her husband told her about it.

Sullivan, a resident of Louisiana, testified he used the Dodge pickup to transport doors from a warehouse and drive them to New Orleans following the hurricane.   Appellant let him borrow the Dodge pickup when he needed it.   Sullivan usually asked first and knew a spare key was kept in the sprinkler box.   Sullivan was in New Orleans on May 26, 2006 and June 29, 2006.

Trial counsel testified he had known appellant a long time.   Counsel knew about the June 2006 accident but determined it would not help appellant in the failure to stop and render aid case.   At best, it would show people were using appellant's truck, getting into accidents, and appellant was doing nothing to ensure the people using his truck were good drivers.   Counsel and appellant discussed whether to introduce evidence of the June 2006 accident;  if appellant had wanted him to bring it up at his failure to stop and render aid trial, counsel would have done so but appellant agreed it was better not to introduce it.   Counsel also noted that, when he represented appellant in a prior driving while intoxicated case, he filed a motion to suppress evidence using the “someone else driving defense” and “won.”   Although they raised the “someone else driving defense” in the May 2006 accident, counsel did not think it was wise to introduce evidence of the June 2006 accident and raise the same defense.

The trial court noted counsel had articulated a reason for declining to introduce the subsequent accident involving appellant's pickup and that it could be a legitimate trial strategy.   Thus, the trial court found appellant did not meet his initial burden of showing counsel's representation fell below an objective standard of reasonableness.

Furthermore, appellant did not meet his burden of showing a reasonable probability exists that, but for counsel's errors, the result of the proceeding would have been different.   At the conclusion of the motion for new trial hearing, the trial court stated:

I just can't see how an accident that occurred one month later would have caused me to change my mind.   Immediately following the accident, paint matching the vehicle, of the [appellant's] vehicle.   There was no evidence presented that at the time anyone else was driving the vehicle.   I have no reason to disbelieve the police officers, and I had every reason not to believe [appellant] and his wife, because every time they said something, it was different ․ And I—I can see it.   I can see why the lawyer would be concerned.   If a jury finds out that this is [appellant's] modus operandi every time he gets in trouble with his vehicle, he—that's his same defense, that somebody else is driving it, I can see why he would be leery to try that again ․ that's the decision that he made, and it wouldn't have affected me.

On the record before us, we cannot conclude appellant has met the requirements of showing trial counsel was ineffective under the standards set forth in Strickland.   We overrule appellant's second issue.

We affirm the trial court's judgment.


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