                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                         No. 04-17-00517-CR

                                      John Nathan CAVANESS,
                                              Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                     From the 452nd Judicial District Court, Mason County, Texas
                                      Trial Court No. 164724
                          Honorable Robert Rey Hofmann, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: August 8, 2018

AFFIRMED

           John Nathan Cavaness appeals his conviction for failure to stop and render aid. He raises

four issues on appeal: (1) there is legally insufficient evidence to support his conviction; (2) the

trial court erred in allowing improper impeachment evidence; (3) the trial court erred in denying

his motion for continuance; and (4) the trial court erred in denying his request for substitution of

appointed counsel.
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                                         BACKGROUND

       On May 20, 2016, eighty-seven-year-old Emmajo Wallace was turning left into a post

office when she was hit by Cavaness’s vehicle. It is undisputed that this vehicle was traveling at

approximately seventy miles per hour prior to its driver braking in an attempt to avoid the collision.

Wallace’s vehicle spun into the parking lot of the post office and was ultimately totaled due to the

impact. Two postal workers who witnessed part of the accident called 9-1-1, and EMS treated

Wallace on-scene. Doctors later determined that Wallace had broken three cells in her left hand

probably as a result of hitting her hand on the driver-side window during the accident. The driver

of Cavaness’s vehicle neither stopped nor returned to the accident scene to give information and

render aid. The Mason County Sheriff’s Office conducted an investigation that ultimately led to

Cavaness’s arrest.

       Cavaness was indicted for failure to stop and render aid at the scene of an accident resulting

in injury to a person. Cavaness pled not guilty, and the case proceeded to a jury trial. At trial, the

State put on circumstantial evidence connecting Cavaness to the accident. For example, Mason

County Sheriff’s Deputy Doug Wall explained his investigation of the accident, and photographs

he had taken of the scene of the accident, the damage done to both vehicles, and Wallace’s injured

hand were admitted into evidence. Wallace and the two postal workers testified about the incident,

and Cavaness’s girlfriend, Nicole, testified that Cavaness had been upset and drinking heavily on

the morning of the accident. There was additional expert testimony about the collision, as well as

testimony from Cavaness’s brother’s parole officer. After the State rested, the defense called

Cavaness as its sole witness for the guilt-innocence phase of trial. Cavaness testified on his own

behalf that he was not driving his car during the time of the accident, even though it is undisputed

that his car was the car that hit Wallace. Cavaness explained that he was at home asleep during the

accident, and therefore, could not have been driving his vehicle.
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       After hearing the evidence, the jury returned a guilty verdict. During the punishment phase

of the trial, Cavaness pled true to two enhancement allegations, and was sentenced to twenty-five

years in prison by the jury.

                                      LEGAL SUFFICIENCY

       In his first issue, Cavaness argues there is insufficient evidence to support a purported

“critical element” of the offense: whether it was apparent someone had been injured in the accident.

On the other hand, the State contends it was not required to prove it was apparent Wallace had

been injured in the accident. Before deciding if there is sufficient evidence to support Cavaness’s

conviction, we must first determine if “apparent injury” is an element of the offense. In other

words, what is the requisite culpable mental state for failure to stop and render aid in an automobile

accident involving personal injury?

       Cavaness was indicted and convicted of violating section 550.021(c)(2) of the Texas

Transportation Code. A person commits an offense under section 550.021(c)(2) “if the person does

not stop or does not comply with the requirements” listed in subsection (a). See TEX. TRANSP.

CODE ANN. § 550.021(c)(2) (West Supp. 2017). Section 550.021(a) of the Texas Transportation

Code provides:

       The operator of a vehicle in an accident that results or is reasonably likely to result
       in injury to or death of a person shall:

           (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;

           (3) immediately determine whether a person is involved in the accident, and if
               a person is involved in the accident, whether that person requires aid; and

           (4) remain at the scene of the accident until the operator complies with the
               requirements of Section 550.023.


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Id. § 550.021(a). Section 550.023 provides:

       The operator of a vehicle involved in an accident resulting in the injury or death of
       a person or damage to a vehicle that is driven or attended by a person shall:

            (1) give the operator’s name and address, the registration number of the vehicle
                the operator was driving, and the name of the operator’s motor vehicle
                liability insurer to any person injured or the operator or occupant of or
                person attending a vehicle involved in the collision;

            (2) if requested and available, show the operator’s driver’s license to a person
                described by Subdivision (1); and

            (3) provide any person injured in the accident reasonable assistance, including
                transporting or making arrangements for transporting the person to a
                physician or hospital for medical treatment if it is apparent that the treatment
                is necessary or if the injured person requests the transportation.”

Id. § 550.023 (West 2011).

       As this court noted in Gabay v. State, neither section 550.021 nor section 550.023 expressly

provide a culpable mental state. No. 04-14-00783-CR, 2016 WL 929213, at *4 (Tex. App.—San

Antonio Feb. 24, 2016, no pet.) (mem. op., not designated for publication); see also TEX. TRANSP.

CODE §§ 550.021, 550.023. In Goss v. State, the Court of Criminal Appeals held “that the culpable

mental state thereby required for the offense of failing to stop and render aid is that the accused

had knowledge of the circumstances surrounding his conduct, i.e., had knowledge that an accident

had occurred.” 582 S.W.2d 782, 785 (Tex. Crim. App. [Panel Op.] 1979) (internal citation

omitted).

       The operator of a vehicle involved in an accident need only have known that an accident

occurred in order to be subject to the duty to stop, investigate, and render aid. See Mayer v. State,

494 S.W.3d 844, 851 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d). The accused is not

required to have subjective knowledge of the nature or extent of the injury resulting from the

accident, or even that a person was involved. See Barnette v. State, No. 08-09-00147-CR, 2011

WL 486949, at *1 (Tex. App.—El Paso Feb. 9, 2011, pet. ref’d) (not designated for publication);
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Marez v. State, No. 13-06-00476-CR, 2007 WL 2333155, at *3 (Tex. App.—Corpus Christi Aug.

16, 2007, pet. ref’d) (mem. op., not designated for publication); Goar v. State, 68 S.W.3d 269, 272

(Tex. App.—Houston [14th Dist.] 2002, pet. ref’d). “Such a prerequisite would defeat the public

interest, which is served by requiring drivers involved in collisions to stop, provide specified

information, and render assistance if necessary.” McCown v. State, 192 S.W.3d 158, 162-63 (Tex.

App.—Fort Worth 2006, pet. ref’d).

       Based on the case law and the purpose of the statute, we hold that an “apparent injury” is

not an element of the offense of failure to stop and render aid in an automobile accident involving

personal injury. Cavaness’s first point of error is overruled.

                                 IMPEACHMENT EVIDENCE

       Cavaness also argues the trial court committed reversible error by allowing the State to

impeach his credibility with thirteen and twenty-year-old convictions. A prior conviction is

presumptively inadmissible for impeachment purposes if more than ten years has passed since the

date of conviction or of the release from confinement for it, whichever is later.” See TEX. R. EVID.

609(b); see also Butler v. State, 890 S.W.2d 951, 954 (Tex. App.—Waco 1995, pet. ref’d).

However, a remote conviction can be admitted for impeachment purposes if the court determines

that “its probative value, supported by specific facts and circumstances, substantially outweighs

its prejudicial effect.” TEX. R. EVID. 609(b).

       During Cavaness’s cross-examination, the State asked him whether he had been convicted

of a felony. It is undisputed that Cavaness’s felony convictions were over ten-years-old at the time

of trial. However, Cavaness answered two questions about the convictions before his attorney

objected.

       Q: Mr. Cavaness, have you been convicted of a felony before?
       A: Yes, ma’am.
       Q: How many?
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       A: Seven.
       Q: Do you remember what they were for?
       A: The first one I got –.

Cavaness’s trial attorney then objected. After a bench hearing outside the presence of the jury, the

trial court overruled the objection, and allowed the State to continue the line of questioning for the

limited purpose of determining Cavaness’s truthfulness.

       Additionally, prior to the objected-to line of questioning, Cavaness offered, and the trial

court admitted, medical records that contained numerous references to Cavaness’s violent and

criminal past. For example, the records indicated Cavaness had “assaulted [his] family,” had used

“meth and cocaine,” “smokes weed every day,” scared his daughter’s mom “because she has seen

him hurt people,” “lost his job…after an event…where he was accused of taking tires,” had “a

history of substance abuse,” “tried to burn down [his] house,” had “thoughts of hurting others,

[had] been violent with others,” spent “10 years in prison,” “had been in prison 15 years after

killing a person,” and had “been in prison in the past for shooting a man and stealing a car which

he then tried to sell to an undercover policeman.”

       The State contends Cavaness waived his complaint regarding impeachment evidence

because he did not timely object to the line of questioning, and alternatively, because he offered

the medical records into evidence, thus “opening the door” to the line of questioning. Cavaness

argues that he timely objected to the substance of the impeachment evidence, and did not open the

door to the State’s line of questioning. Moreover, Cavaness argues the trial court’s error was

harmful because his entire case depended on his truthfulness and whether the jury believed him

when he testified he was asleep at home during the accident.

       Even if the trial court erred in allowing the State to question Cavaness about the nature of

his prior remote convictions, we must disregard the error unless it affected Cavaness’s substantial

rights. See TEX. R. APP. P. 44.2(b); see also Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App.
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2002). Substantial rights are not affected by the erroneous admission of evidence if, “after

examining the record as a whole, [we have] fair assurance that the error did not influence the jury,

or had but a slight effect.” Motilla, 78 S.W.3d at 355. In assessing the likelihood that the jury’s

decision was adversely affected by the error, we “consider everything in the record, including any

testimony or physical evidence admitted for the jury’s consideration, the nature of the evidence

supporting the verdict, the character of the alleged error and how it might be considered in

connection with other evidence in the case.” Id. We “may also consider the jury instructions, the

State’s theory and any defensive theories, closing arguments and even voir dire, if applicable.” Id.

at 355-56. Finally, whether the State emphasized the error can be a factor. Id. at 356.

       An examination of the record indicates the impeachment evidence did not likely adversely

influence the jury’s verdict. Even if the trial court had not allowed the State’s questioning regarding

Cavaness’s prior felonies, the jury would still have been made aware of Cavaness’s criminal past

through the admission of the medical records by Cavaness himself. Further, the jury could have

rationally found Cavaness’s testimony not credible based on the circumstantial evidence brought

forward by the State. Additionally, the record reflects the State did not emphasize or mention the

felony convictions at any time other than during the complained-of line of questioning. Finally,

the trial court instructed the jury twice and limited the jury to only consider the felony convictions

when determining Cavaness’s truthfulness. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim.

App. 1998) (explaining that we presume the jury follows the trial court’s instructions). Therefore,

even assuming the trial court erred in allowing the line of questioning considered impeachment

evidence, it was harmless. Cavaness’s second point of error is overruled.

                                MOTION FOR CONTINUANCE

       In his third issue, Cavaness argues the trial court erred in denying his First Written Motion

for Continuance. The motion was based upon the unavailability of a supposed material witness
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whose testimony, it was proffered, would have demonstrated that Cavaness was asleep on his

couch at the time of the accident.

       We review a trial court’s ruling on a motion for continuance for abuse of discretion. Gallo

v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007). To establish an abuse of discretion, there

must be a showing that the denial of the motion actually prejudiced Cavaness. Id. Further, when

the defendant’s motion for continuance is based upon an absent witness, the defendant must show

“(1) that the defendant has exercised due diligence to procure the witness’s attendance, (2) that the

witness is not absent by the procurement or consent of the defense, (3) that the motion is not made

for delay, and (4) the facts expected be proved by the witness.” Harrison v. State, 187 S.W.3d 429,

434 (Tex. Crim. App. 2005); see TEX. CODE CRIM. PROC. ANN. art. 29.06 (West 2006). It must

also appear to the trial court that the facts are material. Harrison, 187 S.W.3d at 434. The Court of

Criminal Appeals has interpreted the diligence requirement “to mean not only the diligence in

procuring the presence of a witness, but also diligence as reflected in the timeliness with which

the motion for continuance was presented.” Dewberry v. State, 4 S.W.3d 735, 756 (Tex. Crim.

App. 1999). The failure to seek a subpoena for an out-of-state witness may demonstrate counsel

was not diligent. See Nelson v. State, 297 S.W.3d 424, 433 (Tex. App.—Amarillo 2009, pet. ref’d).

       Six days before trial Cavaness orally moved for a continuance based on an absent witness,

specifically his brother Jesse. The trial court denied the motion, but said it would consider a written

motion on the first day of trial, and ultimately did. Cavaness represented in the written motion:

“Due Diligence has been used to procure the attendance of JESSE CAVANESS, specifically: a.

JESSE CAVANESS was incarcerated in Arizona for an unknown reasons [sic]. He has in the past

week obtained release from incarceration and is in the Phoenix area. He is unable to travel

voluntarily here for trial.” Cavaness explained “[t]he reason that [Jesse] is unavailable is because



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he was incarcerated in Arizona up until Friday and he is unable to get here on his own from the

Phoenix area.”

       Because Cavaness filed the motion six days before trial, and because he did not subpoena

Jesse, we hold that the trial court did not abuse its discretion in denying the motion for continuance.

Cavaness’s third point of error is overruled.

                        SUBSTITUTION OF APPOINTED COUNSEL

       In his fourth issue, Cavaness argues the trial court erred by denying his request to substitute

his appointed counsel, and effectively forcing him to go to trial with ineffective assistance of

counsel. We review a trial court’s refusal to appoint substitute counsel for abuse of discretion. See

Carroll v. State, 176 S.W.3d 249, 256 (Tex. App.—Houston [1st. Dist.] 2004, pet. ref’d). A trial

court is under no duty to search until it finds an attorney agreeable to the defendant. See Malcom

v. State, 628 S.W.2d 790, 791 (Tex. Crim. App. [Panel Op.] 1982). Once a court has appointed an

attorney to represent an indigent defendant, the defendant has been afforded the protections

provided by the Sixth and Fourteenth Amendments, and Article 26.04 of the Texas Code of

Criminal Procedure. Id. If a defendant is displeased with his appointed counsel, he must bring the

matter to the court’s attention, and then carries the burden of proof to demonstrate that he is entitled

to a change of counsel. Id. Under Malcom, we must examine the record to determine if Cavaness’s

contention has merit. See id. at 792.

       Based on an examination of the record, Cavaness was provided adequate assistance of

counsel. The record indicates that Cavaness’s attorney was present for every hearing, met with

Cavaness three separate times to review the evidence, and discussed potential witnesses with him.

Additionally, the record shows that Cavaness’s trial counsel filed several pre-trial motions with

the court. During trial, Cavaness’s appointed counsel raised several objections and cross-examined

the State’s witnesses. Cavaness has failed to meet his burden and has not shown he was entitled to
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a change of counsel. We hold the trial court did not abuse its discretion in denying Cavaness’s

request for substitution of appointed counsel. Cavaness’s final point of error is overruled.

                                         CONCLUSION

       We affirm the trial court’s judgment of conviction.

                                                  Luz Elena D. Chapa, Justice

DO NOT PUBLISH




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