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Click here for the full text of this decision FACTS:John Guzman Tello was driving a truck with a trailer hitched on the back. Tello purchased the homemade trailer from someone else, though Tello did not know who made it. As Tello said later, he had put a load of dirt and a wheelbarrow over the right rear axle. As Tello drove along a Brazos County street, the trailer became unhitched. As there were no safety chains on the trailer, the trailer jumped the curb and struck Pat Supak, who was walking on the sidewalk. Supak died from her injuries. Immediately after the accident, at the suggestion of police officers at the scene of the accident, Tello had safety chains installed. Supak’s family successfully sued Tello in civil court. That is where, in deposition, he explained how he loaded the dirt and wheelbarrow. He said he knew loading things that way could cause the trailer to tip up from the hitch, but he did not think it was unsafe. Also during the deposition, when asked why he never purchased safety chains for the trailer, he had no answer other than to say he did not know it was illegal not to have them. Tello’s videotaped deposition was played at his subsequent trial for criminally negligent homicide. Allen Sylvester, an advanced accident investigator with the police department, and David Long, an accident reconstructionist with the department, testified at Tello’s trial. Sylvester said how ripples in the road surface could have dislodged the trailer from the truck. He said the dirt and the wheelbarrow were found at the front of the trailer, indicating that the load had shifted after the trailer hit a tree. He noted how the handle part of the hitch on the trailer was old and looked like it had been hammered or hit. When Sylvester and Long went to the shop where Tello was having the trailer repaired after the accident, the officers took pictures of the hitch, and then had the hitch removed so that they could take it. Long testified that the ball on the truck was loose and rocked back and forth. He also said that the front of the trailer hitch was bent so that it would not properly lock into place over the ball. He said the trailer hitch had been hammered on. He also demonstrated how safety chains would prevent a trailer that has come unhitched from separating from the towing vehicle. The state had Carl Stubblefield, who had worked installing and repairing trailer hitches at a trailer manufacturing company for 18 years, testified as an expert. He found the hitch worn and faulty. It would not latch properly because it had been hammered on, Stubblefield said. The safety stop was useless, and based on the wear marks on the hitch, the trailer had likely been pulled with the ball not latched to it at all. He said the trailer could come unhitched if it hit a bump in the road, and that if the loose ball wobbled to much it could dislodge the coupling mechanism. Stubblefield also stated that the trailer’s contents should have been loaded toward the front to prevent the trailer from tipping up and swaying. He said that Tello should have been replaced, and that he ought to have been aware that there was a substantial and unjustifiable risk of death from his failure to secure the trailer. Tello was convicted of failing to properly secure a trailer to his truck, causing the death of Supak. He was sentenced to one year incarceration. Tello appeals the legal and factual sufficiency of the evidence to support the conviction. HOLDING:Affirmed. The court explains that under Penal Code �6.03(d), the culpable mental state for a conviction of criminally negligent homicide occurs when one ought to be aware of the substantial and unjustifiable risk that the result will occur. The court can find no other Texas case of a conviction for criminally negligent homicide from a trailer that comes unhitched. The court, however, finds a handful of civil cases dealing with the issue. With those cases in mind, the court determines that the state met its burden in this case. Through Stubblefield’s testimony in particular, the evidence was factually sufficient to find that Tello’s failure to perceive the risk of not securing the trailer properly constituted a gross deviation from the standard of care an ordinary person would have exercised under like circumstances. The evidence was factually sufficient, too, considering the age and wear of the trailer hitch and Tello’s failure to secure the trailer with safety chains. The court next addresses Tello’s claims that his trial counsel was ineffective. In a post-verdict affidavit, he complains of his counsel’s admission to him that he would have liked to object to Supak’s husband’s testimony, but that he didn’t want to offend the jury. His attorney did not challenge two jurors, and he also admitted during closing argument that Tello was at fault. The court, however, finds the record lacks any statement of strategy behind these decisions and refuses to speculate on them. Thus, it rejects Tello’s ineffective assistance of counsel argument. The court finds the record lacking in Tello’s challenge to the trial court’s refusal to reset his motion for new trial hearing. Even if the motion was reset, Tello did not offer adequate proof to support the motion. Finally, the court rejects Tello’s challenge to Stubblefield’s testimony. Tello’s attorney did not object to Stubblefield’s qualifications until after Stubblefield gave his expert opinion, and the trial court overruled the objection. Consequently, Tello failed to preserve his objection. OPINION:Leslie Brock Yates, J.; Yates, Hudson and Fowler, JJ.

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