Tello v. State

• Decision Date: 25 May 2004
• Docket Number: No. 14-02-01193-CR.,14-02-01193-CR.
• Citation: 138 S.W.3d 487
• Parties: John Guzman TELLO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

138 S.W.3d 487

John Guzman TELLO, Appellant, v. The STATE of Texas, Appellee.

No. 14-02-01193-CR.

Court of Appeals of Texas, Houston (14th Dist.).

May 25, 2004.

Appeal from the 361st District Court, Brazos County, Steve Smith, J Bruno A. Shimek, Bryan, for appellant.

Douglas Howell, III, Bryan, for appellee.

Panel consists of Justices LESLIE BROCK YATES, HUDSON, and FOWLER.

OPINION¹

LESLIE BROCK YATES, Justice.

Appellant John Guzman Tello was driving a truck and towing a trailer that came unhitched, jumped a curb, and struck a pedestrian, resulting in her death. Appellant was convicted by a jury of the state jail felony of criminally negligent homicide and sentenced by the trial court to one year in a state jail facility. In four points of error, appellant complains that (1) the evidence is legally and factually insufficient to support the conviction; (2) his trial counsel was ineffective; (3) the trial court erred by failing to hold a hearing on his motion for new trial; and (4) the trial court erred in finding Carl Stubblefield, one of the State's witnesses, qualified to give expert testimony. We affirm.

I. FACTUAL BACKGROUND

On the afternoon of October 16, 2001, while driving his Ford F-250 truck, appellant was hauling a trailer with a partial load of dirt from a home under construction and traveling on Copperfield Drive in Bryan, Texas. Pat Supak was walking on the sidewalk that ran along Copperfield Drive. As appellant approached the intersection of Copperfield Drive and Booneville Drive, the trailer that he was towing came unhitched, jumped a curb, and struck Supak. Supak suffered massive injuries and died at an area hospital that day. Appellant was charged with criminally negligent homicide for failing to properly secure the trailer to his truck.

Appellant's trailer was a flatbed, tandem-wheel trailer with three sides consisting of plywood and one side (the end) that was open. The accident report completed by Al Wescoat of the Bryan Police Department on the day of the accident described the trailer as a 1998 brown, 16-foot, homemade trailer. Appellant did not have safety chains on his trailer on the date of the accident. The day after the accident, appellant had safety chains installed on the trailer. The trial court took judicial notice of section 545.410 of the Transportation Code requiring an operator of a light truck to use safety chains to draw a trailer or semi-trailer. Appellant's truck fell within the definition of "light truck." The provisions of the Transportation Code pertaining to safety chains were admitted into evidence.

Officer Allen Sylvester, an advanced accident investigator, and Officer David Long, an accident reconstructionist, investigated the accident scene on October 16 and 17. Office Sylvester testified that he found two small skid marks where the trailer tires had jumped the curb and some marks in the dirt showing where the trailer had traveled before it ran into the tree line along Copperfield Drive. He also found that the ball on the bumper of the truck was loose; it was not tight against the bumper. Officer Sylvester testified that the road surface had some black tar ripples, and he opined that the ripples could have dislodged the trailer from the truck. The photographs of Copperfield Drive in evidence show black tar ripples on the road surface. Officer Sylvester did not see any fresh gouge or fresh metal on the underside of the hitch. He also did not see any gouge marks in the asphalt on the road indicating that either the front or the rear of the trailer had touched the ground after detaching from appellant's truck. Officer Sylvester opined that the front of the trailer was level after it detached from the truck's bumper; in other words, the trailer's front did not drop upon becoming unhitched.

Officer Sylvester also found that the trailer contained a load of dirt and a wheelbarrow. He testified that the dirt and wheelbarrow were located on the upper-front, right corner of the inside of the trailer. The day following the accident, Officer Sylvester asked appellant where he had loaded the dirt and the wheelbarrow. Appellant told Officer Sylvester that he had placed the load of dirt over the right rear axle. Officer Sylvester opined at trial that the force of the trailer hitting the tree caused the dirt and the wheelbarrow to slide forward. He also testified that the hitch was old and that the handle part of the hitch on the trailer had been hammered on or hit over time. It was bent down.

On October 17, Officers Long and Sylvester went to a machine shop where appellant had taken the trailer to be repaired. Officer Sylvester took photographs of the trailer hitch, and then recovered the hitch after a welder used a torch to cut the hitch off the trailer. The hitch was admitted into evidence at trial. Also on October 17, Officer Long inspected the bumper and ball on appellant's F-250 truck. Officer Long testified the ball was a two-inch ball and it was loose on the bumper, causing the ball to rock in the hole. The nut was tight, but he could wobble the shank of the ball in the hole in appellant's truck bumper. He said that was not the proper placement of a ball to a bumper. He said that the shank depth of the ball was too long, and the diameter of the bolt was too small. Officer Long demonstrated for the jury how a trailer hitch properly couples to a ball attached to a truck's bumper. He further testified that the front of appellant's trailer hitch was bent, so that the tabs for the locking mechanism did not fit properly into the designated slots — in other words, the hitch could not lock in place. He opined that the hitch was bent due to it being hammered on and that the hitch on appellant's trailer was not able to lock in place and therefore could come loose from the truck. Officer Long then demonstrated how safety chains are designed to work. He explained that safety chains are designed to prevent a trailer from coming detached from a truck's bumper if the trailer latching mechanism fails.

Carl Stubblefield testified on behalf of the State as an expert on trailers and hitches. Stubblefield worked at Gooseneck Trailer Manufacturing, where he had been installing and repairing trailer hitches for 18 years. He testified that he was familiar with how trailers work and how they should be loaded. Stubblefield testified that he had examined the hitch from appellant's trailer, and he opined that the hitch was worn and appeared faulty. He said it had been hammered on to get it to latch. He also testified that the safety latches were bent down so that the hitch could not lock down. Stubblefield testified that it appeared the safety latches had been tapped down to get the hitch to latch, which is not a normal procedure for latching a hitch properly. He opined that the wear spots indicated that the hitch had been hammered on a number of times. He further testified that the safety stop had been abused or pried so that it was useless, allowing the hitch to come open and flip all the way off the ball. He said the latch had been bent at an angle, caused by someone turning too sharp and backing the trailer up. He testified that, based on the wear marks on the hitch, the trailer had been pulled with the ball not latched at all. He opined that the hitch should have been replaced before the date of the accident. He said if the trailer hit a bump in the road, it was possible for the hitch to become unlatched. He testified that it was dangerous to have a ball that wobbled because it would jolt the coupler. With respect to the incident in question, he said a bump could have knocked the latch or hitch back and loosened the latching mechanism.

Stubblefield also testified regarding the loading of a trailer. He said that the proper way to load a trailer is to put the load up front because a load towards the back of a trailer could cause the tongue of the trailer to come up and also cause the truck to sway. He opined that loading a trailer directly over the rear axle — or heavier over the rear — would tend to make the end of the truck or the truck bed to which it is attached light.

At trial, a videotaped deposition of appellant taken in a civil lawsuit filed by the victim's family was played for the jury. Appellant testified during the deposition that the trailer was a homemade trailer that he purchased from his father's neighbor. He said he did not know when the trailer was made or who made it. He had replaced the tires, repaired the floorboard, and painted the trailer. However, he had not replaced the trailer hitch. Appellant testified that he was the only person to use the trailer; no one had ever borrowed it. When asked why he did not have safety chains on the trailer, appellant responded that he did not have an answer to that question other than he did not know it was illegal not to have safety chains on a trailer. Appellant testified that he had hooked up the trailer that morning and said that he had placed a load of dirt and a wheelbarrow over the rear axle. He said that the load of dirt on the right rear axle would cause the trailer to lift up easily, but he said that it did not occur to him on the date of the accident that would be an unsafe way to load the trailer. He said that he had never had the trailer inspected, and the trailer did not have tags when he acquired it. After the trailer struck Supak, he looked at the trailer hitch and saw the clip was hanging loose; he assumed that the hitch had worn out. After the accident, a police officer told him he should get his trailer fixed as soon as possible. The following day, he had the hitch repaired and added safety chains.

II. ANALYSIS

Legal and Factual Sufficiency

In his first point of error, appellant contends that the evidence is legally and factually insufficient to support the jury's conviction. In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict. See ...