Opinion
Nos. 05-01-01357-CR, 05-01-01358-CR.
Opinion Issued January 14, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 366th District Court, Collin County, Texas, Trial Court Cause Nos. 366-80006-01, 366-80008-01. AFFIRMED.
OPINION
Christopher Lee Pagley appeals his aggravated assault conviction in cause number 05-01-01357-CR and his failure to stop and render aid conviction in cause number 05-01-01357-CR. The trial court convicted appellant and sentenced him to twenty-five years' confinement in each case. In two issues, appellant complains the evidence is factually insufficient to support his conviction, and he received ineffective assistance of counsel. We affirm the trial court's judgments. On September 9, 2000, Chris Durham had been drinking beer, smoking marijuana, and snorting cocaine alone at appellant's house before falling asleep on appellant's couch. Durham woke up to the sound of yelling and tires squealing. Appellant and a man known as "Ski" were in the front yard. Durham went back to sleep but later heard a car door close and saw through the screen door that Ski was leaving. After Ski left, Durham saw a Ford Mustang and a Dodge Ram Charger speeding down the street. Appellant and some of the occupants of the cars were yelling at each other. Durham saw appellant was getting angry, and he attempted to calm appellant down. The cars, sometimes singly and sometimes together, were driving down the alley, and the occupants were honking and yelling. Appellant went outside, and someone in one of the cars threw a bottle at him. The bottle missed, but appellant got very angry and went inside and got a gun. Durham knew the gun was unloaded, and appellant said he was only going to scare "them." Appellant went outside with the gun, and Durham decided to leave. Appellant stood in the middle of the street and held up the gun without pointing it at anybody as one of the cars drove toward him and then "darted off somewhere." As Durham was preparing to leave, appellant said he was going to "show them not to mess with me." Appellant got in his car, a white Buick, and left. Durham drove to a grocery store and called 911 to report the cars going up and down the road. When Durham called 911, the operator told Durham that a call had just come in for a hit and run involving a white car and a Ram Charger. Durham thought appellant was involved, so he went back to the area where appellant lived and saw lights and a commotion going on. Someone recognized Durham as "one of the guys that was there," and police eventually took Durham's statement. Earlier that evening, Wesley Lokey had argued with his wife outside the house of his mother, Sherry Lokey, near appellant's residence. Lokey's wife left, saying she was walking home, and Lokey went after her in his cousin Danny's Ford Mustang. A tattooed, scraggly-haired person wearing no shirt was sitting on the trunk of a white Buick Regal on the side of the street. One of the person's tattoos resembled a sun or starfish with long stems coming out of it. The person "hollered something" at Lokey, and a brief verbal exchange followed. Lokey went back to his mother's house where his brothers Ricky Torres and Vinny Torres and friend Roman got in a Dodge Ram and drove away. Lokey and other family members drove in the Mustang to a store to buy drinks and then returned to Sherry's house. While everyone was getting out of the Mustang, the Dodge came "flying" past the house with a white car "fishtailing after him." The Dodge parked, and the white car smashed the Dodge's rear end and then reversed and hit the Dodge again. Lokey ran to the white car and reached in to try to grab the driver, but the driver "hit reverse" and Lokey pulled back out of the car. Nevertheless, Lokey recognized the driver as the person who was earlier sitting on the trunk of the white car. The driver had straggly hair and tattoos. When the white car backed up, one of the car's mirrors hit Sherry in the hip and knocked her into Danny. Lokey and Vinny ran after the car, but the driver turned around like he was in a "stunt show" and drove away. Someone called police, and the police took Lokey to a house where Lokey identified appellant as the driver of the white car. Appellant was subsequently indicted and convicted of aggravated assault and failure to stop and render aid, and this appeal followed. In his first issue, appellant argues the evidence is factually insufficient to support his conviction. When reviewing challenges to the factual sufficiency of the evidence, we apply well known standards. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); see also Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The factfinder is the sole judge of the witnesses' credibility and their testimony's weight. Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App. 1984). The factfinder may believe or disbelieve all or any part of any witness' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). A person commits the offense of aggravated assault if he intentionally, knowingly, or recklessly causes bodily injury to another person and uses or exhibits a deadly weapon during the commission of the assault. See Tex. Pen. Code Ann. §§ 22.01(a), 22.02(a) (Vernon 1994 Supp. 2003). Section 550.021 of the transportation code provides that the operator of a vehicle involved in an accident resulting in injury to a person shall stop the vehicle at the scene of the accident and remain at the scene of the accident until he complies with the requirements of section 550.023. Tex. Transp. Code Ann. § 550.021 (Vernon 1999). Section 550.023 requires the operator of a vehicle involved in an accident resulting in injury to a person to give information regarding the accident and render aid to the injured person. See id. § 550.023. Here, the evidence shows appellant became angry and exchanged words with the occupants of a Mustang and a Dodge Ram Charger. Appellant said he was going to "show them not to mess with me." Appellant left his house driving a white Buick Regal determined to be the car that later struck the Ram Charger and injured Sherry Lokey. Wesley Lokey identified appellant as the driver of the Buick Regal. Although appellant reported his Buick Regal stolen after the assault occurred, it was recovered the next day "right around the corner" from appellant's residence. Having reviewed the record, we conclude the evidence was factually sufficient to support appellant's aggravated assault and failure to stop and render aid convictions. See Johnson, 23 S.W.3d at 11. We overrule appellant's first issue. In his second issue, appellant argues he received ineffective assistance of counsel. Specifically, appellant complains that his trial counsel failed to obtain rulings on his motions for discovery and determine the testimony of appellant's mother would be damaging before calling her to testify. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on an ineffective assistance of counsel claim, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. Strickland, 466 U.S. at 687-88, 694. The record must be sufficiently developed to overcome a strong presumption that counsel provided reasonable assistance. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Id. at 813. The record in this case is silent as to why appellant's trial counsel failed to obtain a ruling on his motions for discovery. Because the record is silent, appellant has failed to rebut the presumption that this was a reasonable decision. See id. at 814. Under these circumstances, we cannot conclude appellant received ineffective assistance of counsel. We overrule appellant's second issue. We affirm the trial court's judgments.