









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________


No. 06-01-00134-CR

______________________________



EDWARD LEE McDADE, Appellant


V.


THE STATE OF TEXAS, Appellee





On Appeal from the 155th Judicial District Court

Waller County, Texas

Trial Court No. 01-02-10,578







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




O R D E R


	Edward McDade appeals his convictions for aggravated assault (06-01-00134-CR) and two
counts of assault on a public servant (06-01-00135-CR and 06-01-00136-CR).  The punishment
range for each offense was enhanced pursuant to the jury's finding that McDade qualified as a
habitual offender.  See Tex. Pen. Code Ann. § 12.42(d) (Vernon Supp. 2002).  The jury assessed
McDade's punishment at fifty years' imprisonment for the aggravated assault offense and twenty-five
years' imprisonment for each of the assault on a public servant offenses.
	Colin McFall, McDade's appointed attorney on appeal, has filed a motion requesting leave
to withdraw from further representation.  McFall states that he has accepted employment as an
assistant district attorney in Cherokee County and that continuing his representation of McDade
would constitute a conflict of interest.
	We order this appeal abated and the case remanded to the 155th Judicial District Court in
Waller County.  We order the trial court to determine whether McFall should continue as McDade's
attorney and, if not, to appoint new counsel.  We order the trial court to act within fifteen days of the
date of this order and to immediately thereafter forward a supplemental transcript to the clerk of this
court showing such action.

	IT IS SO ORDERED.


						Ben Z. Grant
						Justice

Date:	January 8, 2002

 regional manager for several Brake Check stores in Houston and a brake expert,
testified that pressing on the brakes of a car that is not running will not help diagnose brake failure;
the engine must be running to make such a determination. 
	Mokuolo contends the evidence is factually insufficient to support his conviction.  In a
factual sufficiency review, we examine the evidence in a neutral light, favoring neither party. 
Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Twist v. State, 976 S.W.2d 275, 277 (Tex.
App.-Texarkana 1998, no pet.).  We set aside the verdict for factual insufficiency only if (1) the
evidence in support of a vital fact, considered as standing alone, is factually too weak to support it,
or (2) looking at all the evidence, some evidence supports a positive inference and some supports
a negative inference, but the State's evidence is so weak it makes the finding against the great weight
and preponderance of the evidence.  Goodman v. State, 66 S.W.3d 283 (Tex. Crim. App. 2001).  In
such a case the finding is described as being "manifestly unjust," "shocks the conscience," or "clearly
demonstrates bias."  Id.
	The State charged Mokuolu by information with the offense of failure to stop and give
information.  A driver commits a class B misdemeanor if his vehicle is involved in an accident
resulting in more than $200.00 of property damage (but not resulting in physical injury), and he does
not immediately stop his vehicle at the scene of the accident (or immediately return to the scene of
the  accident  if  the  vehicle  is  not  stopped  at  the  scene  of  the  accident).   Tex.  Transp.  Code
Ann. §§ 550.022, 550.023 (Vernon 1999).  The driver is required to remain at the scene until he
gives his name, address, vehicle registration or license plate number, insurance information, and (if
requested) driver's license information.  Id.; see Morris v. State, 786 S.W.2d 451 (Tex. App.-Dallas
1990, pet. ref'd) ("vehicle registration" means license plate number).  "The word 'stop' as used in a
similar statute has been held to mean 'a definite cessation of movement for a sufficient length of time
for a person of ordinary powers of observation to fully understand the surroundings of the accident
and to possess himself of an accurate knowledge of the results of the accident.'"  Twist v. State, 976
S.W.2d at 277 (quoting Moore v. State, 140 Tex. Crim. 482, 145 S.W.2d 887, 888 (1940)).  
	There is evidence that Mokuolu did not stop for a sufficient length of time at the nearest
location to Pokrajac's vehicle and provide the information required by the Texas Transportation
Code.  Several witnesses for the State testified to this fact, whereas only Mokuolo testified that the
brake failure prevented him from stopping near Pokrajac.  However, even if Mokuolu's brakes failed
at some point, there is positive testimony that Mokuolu did come to a complete stop right after
colliding with Pokrajac, but when Pokrajac got out of her vehicle and started to approach him,
Mokuolu drove away and had to be stopped later by other drivers. The jury was authorized to find
from this evidence that Mokuolu intentionally failed to stop at the accident scene in a manner
required by the Texas Transportation Code.  And although Mokuolu eventually stopped again and
spoke to Pokrajac, it can be inferred from the evidence that he did so only because other motorists
blocked his progress and caused him to crash into their vehicles.  Several witnesses testified they
believed Mokuolo had attempted to flee.  A driver's initial attempt to leave the scene, that is later
thwarted by pursuit and attempts to restrain him, which ultimately results in a stop, does not fulfill
the requirements of the duty to stop and give information.  Twist v. State, 976 S.W.2d at 278.  The
record is clear that Mokuolu failed to provide evidence of insurance and his driver's license
information to Pokrajac at or near the scene of the accident.  We find the evidence factually
sufficient to support a finding that Mokuolu did not immediately stop and give the required
information.
	In his second point of error, Mokuolu contends the trial court erred by denying his motion
for new trial.  Mokuolu argues he should be given a new trial because his trial counsel did not
present expert testimony on brake failure and thereby provided ineffective assistance of counsel.
	We review a trial court's denial of a motion for new trial for abuse of discretion.  Salazar v.
State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001); State v. Kelley, 20 S.W.3d 147, 151 (Tex.
App.-Texarkana 2000, no pet.).  "A trial court abuses its discretion when it so deviates from
applicable guidelines and principles that the decision falls outside the zone of reasonable
disagreement."  Breakiron v. State, 79 S.W.3d 103, 107 (Tex. App.-Texarkana 2002, no pet.).  We
must not substitute our judgment for that of the trial court, but instead we determine whether the trial
court's decision was outside the zone of reasonable disagreement or was arbitrary or unreasonable. 
Salazar v. State, 38 S.W.3d at 148; Davis v. State, 71 S.W.3d 844, 846 (Tex. App.-Texarkana 2002,
no pet.).  The standard for testing claims of ineffective assistance of counsel was set out in Strickland
v. Washington, 466 U.S. 668 (1984), and adopted for Texas constitutional claims in Hernandez v.
State, 726 S.W.2d 53, 56-7 (Tex. Crim. App. 1986).  In this case, we do not apply the Strickland
standard in a de novo fashion, but review the trial court's application of the Strickland standard
through the prism of the abuse of discretion standard.  See State v. Kelley, 20 S.W.3d at 151.
	To prevail on his claim of ineffective assistance, Mokuolu must prove by a preponderance
of the evidence (1) that his counsel's representation fell below an objective standard of
reasonableness, and (2) that the deficient performance prejudiced his defense.  Strickland v.
Washington, 466 U.S. at 687; Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999).  To meet
this burden, Mokuolu must prove that his attorney's representation fell below the standard of
prevailing professional norms, and that there is a reasonable probability that, but for the attorney's
deficiency, the result of the trial would have been different.  Tong v. State, 25 S.W.3d 707, 712 (Tex.
Crim. App. 2000).  Under this standard, Mokuolu must prove that counsel's representation so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.  Strickland v. Washington, 466 U.S. at 686.
	Our review of counsel's representation is highly deferential, and we indulge a strong
presumption that counsel's conduct falls within a wide range of reasonable representation.  Strickland
v. Washington, 466 U.S. at 689; Tong v. State, 25 S.W.3d at 712.  We will not second-guess through
hindsight the strategy of counsel at trial, nor will the fact that another attorney might have pursued
a different course support a finding of ineffectiveness.  Blott v. State, 588 S.W.2d 588, 592 (Tex.
Crim. App. 1979).  That another attorney, including Mokuolu's counsel on appeal, might have
pursued a different course of action does not necessarily indicate ineffective assistance.  Harner v.
State, 997 S.W.2d 695, 704 (Tex. App.-Texarkana 1999, no pet.).  Any allegation of ineffectiveness
must be firmly founded in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
	First, Mokuolu's trial counsel was not called to testify at the hearing on Mokuolu's motion
for new trial.  We therefore have no information before us about his counsel's trial strategy.  Cf. Bone
v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) (under normal circumstances, record on direct
appeal will not be sufficient to show counsel's trial strategy was so deficient as to overcome
presumption of reasonableness and professionalism). Second, "Arthur," the Brake Check service
technician whose last name is unknown and who reportedly told Mokuolu that his brakes had failed
during the accident, was not called to testify at the hearing on the motion for new trial.   
	Third, for Mokuolu's argument to have merit, there must be some showing that an expert
would have testified in a manner that benefitted Mokuolu.  See Teixeira v. State, 89 S.W.3d 190, 193
(Tex. App.-Texarkana 2002, pet. ref'd) (trial counsel not ineffective in non-capital case for not hiring
expert on future dangerousness because no evidence of expert who would have testified favorably
for defendant); see also Duren v. State, 87 S.W.3d 719, 733-34 (Tex. App.-Texarkana 2002, no pet.)
(counsel not ineffective for calling defense expert if expert's findings were similar to findings by
State's expert).  Without such evidence, Mokuolu has not met his burden of proof under the first
prong of Strickland.  See Teixeira v. State, 89 S.W.3d at 193; Rodriguez v. State, 82 S.W.3d 1, 2
(Tex. App.-San Antonio 2001, pet. dism'd) (ineffective assistance not shown where record is silent
about counsel's reason for not calling rebuttal expert testimony). Robert Stone, the brake expert who
testified at the motion for new trial hearing, did not state that Mokuolu could not stop at the accident
scene due to brake failure.   In fact, Stone affirmatively stated that he was not able to testify about
the status of Mokuolu's brakes in October of 2001, the month of the accident.   Such testimony falls
short of evidence that Mokuolu's brakes failed at the time of the accident.
	Moreover, even if Mokuolu proved and the jury believed that his brakes failed at some point,
that would not necessarily have constituted a viable defense to the charge against him.  There is
positive testimony from three witnesses that Mokuolu did come to a full stop immediately after the
collision, but that he did not get out and give Pokrajac the required information.  Instead, he drove
off in an attempt to flee.  Thus, brake failure was not a dispositive issue.  	
	Mokuolu has failed to prove by a preponderance of the evidence that his counsel's
performance fell below an objective standard of reasonableness, and that his defense was prejudiced. 
Accordingly, the trial court did not act outside the zone of reasonable disagreement by denying
Mokuolu's motion for new trial. 
	For the reasons stated, we affirm the trial court's judgment.



						William J. Cornelius
						Justice*

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

Date Submitted:	February 3, 2003
Date Decided:		April 23, 2003

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