Jonathan D. Canfield v. State

Opinion issued February 13, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00303-CR
———————————
JONATHAN D. CANFIELD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Case No. 1216717
OPINION
This is a capital-murder case. Appellant Jonathan Canfield was convicted
by a jury and sentenced by the trial court to life imprisonment. We affirm the trial
court’s judgment.
THE EVIDENCE
Appellant’s former uncle by marriage, Mario Towns, was shot and killed by
William Garret (known as “Plug”), one of appellant’s friends. Appellant was
charged and convicted of capital murder as a co-conspirator or party. Several fact
witnesses testified at trial, giving a fairly consistent account of the parties’
relationships, the surrounding events, and the motive for the robbery that led to the
murder.
A. Background
Both the appellant and the deceased, Mario, lived in Monroe, Louisiana.
Mario and his wife, Nicole Towns, lived in a house with their two children, their
six children from prior relationships, and one of Mario’s nephews. Nicole and
Mario owned an urban clothing store called “Sugar’s Boutique,” which Nicole
primarily ran. Appellant is the nephew of Mario’s ex-wife, Wynell. Appellant
would often stay at Mario’s house because he was close with Mario’s oldest son,
and because Mario was like a father figure to appellant. Mario and appellant
always had a good relationship until a March 2009 dispute over money.
Mario, along with several of his family members, ran a marihuana-
trafficking enterprise. Because marihuana was cheaper in Houston, Mario and
others would frequently travel to Houston to purchase marihuana, and then
transport it to Monroe, Ohio, or Atlanta to sell. Several family members would
2
pool their money for these trips, and receive a return based on the percentage
contributed. On some trips, they took as little as $3,000, and other trips they took
as much as $50,000–$60,000 to spend. Generally, they could expect to double
their money.
Usually these purchasing trips were done with some combination of Mario,
John Town (Mario’s nephew), and Chris Harris (Mario’s son). A few times,
appellant participated in these runs. Other people unrelated to the drug trafficking
also joined them at times, including Nicole Townes,1 Mario’s girlfriend.
They often stayed at a house in Houston on Dulcimer Street with appellant’s
uncle, Roosevelt Canfield (known by his nickname, “Perney”). That house was
owned by Perney’s girlfriend’s mom, but Perney’s girlfriend had her own place in
Fresno. Perney would sometimes stay in Fresno at his girlfriend’s while guests
were at the Dulcimer house; other times he would stay with his guests to socialize,
go clubbing, etc. He was aware about some of Mario’s drug activities, but not
involved in them.
Appellant and Perney were very close. For one year in high school,
appellant lived with Perney in Houston at a different house.
A. The March 2009 Loss
1
Nicole Townes is not related to Mario’s wife, Nicole Towns.
3
John and Chris testified that, around March 17, 2009, they went to Houston
to purchase marihuana. They had a total of $23,000 with them. They both
testified that appellant had contributed $5,000 to that amount, and the rest was
contributed by Mario, John, and Chris. John and Chris did not find marihuana in
the quality they liked by March 20, 2009, and decided to head back because John’s
birthday was that day and he wanted to celebrate at home in Monroe.
The money was hidden in the truck under the spare tire of their car, and they
had two guns in the center console. They were pulled over by police in
Nacogdoches, Texas. The police searched the car, found the money and guns,
impounded the car, and took Chris and John to jail. They testified that, after about
three hours, they were pulled out of their cell and presented with a deal: the police
would let them go and not say anything about the guns if they would give up any
claim to their money. They agreed, retrieved their vehicle from the impound yard,
and headed home.
They called Mario, who was angry that they had left Houston empty-handed
without telling him first. When they explained what had happened with their
arrest, he told them to just come home to Monroe. They later called appellant,
who was angry and did not believe their story. John said appellant seemed to
believe them after they saw him in person and showed him paperwork related to
their arrest. Nonetheless, John said appellant still blamed them “somewhat” for the
4
loss of his $5,000. John testified that he and appellant later argued over the lost
money.
Chris likewise testified that his relationship “starting getting rocky” with
appellant after that. He had three or four conversations with appellant in which
appellant complained about the loss of his money. He also heard about appellant
and Mario fighting about this lost money.
Mario’s wife Nicole testified that she had always perceived Mario and
appellant to have had a good relationship until she witnessed an altercation
between them in the parking lot of her clothing store around April 1, 2009. Mario
and appellant got in a heated argument over some money that appellant “felt Mario
owed to him.” After appellant left, Mario came into the store and told her to call
the police because appellant had just threatened him. Ultimately, she did not call
because Mario also left the store. After that fight, appellant did not come around
their house or store as he normally would. Appellant called Nicole at one point to
ask if she knew about some money that was supposed to be returned to him that
Mario owed him and she told him that she did not.
B. The May 16, 2009 Shooting
On Wednesday May 13, 2009, appellant called his friend Lashaka in
Houston to let her know that he was coming to town the next day and that
something bad was about to happen. Her understanding was that there was
5
something wrong, but appellant did not answer her follow-up questions about what
he meant. Appellant testified that the next day—May 14, 2009—he came to
Houston to buy drugs. He testified that he got a late start out of Monroe and was
tired, so he called his friend Plug to ride with him so they could share driving
responsibilities. They went first to Lashaka’s house, where they hung out for a
while and then decided to go to a strip club. He and Plug took Lashaka’s brother,
Perry Lowe (known as P-A). P-A and appellant had been friends since meeting in
appellant’s ninth-grade-year at Bellaire High School when he previously lived with
Parney in Houston.
Before going to the club, they stopped at the Dulcimer house to let Perney
know that they would be staying there. Perney testified that he was not expecting
them, as appellant had not called to let him know he would be in town. Perney
already knew P-A as a friend of appellant’s, but had never before met Plug.
Perney was on his way out of the house, but left them a key and went to his
girlfriend’s house in Fresno for the night.
The next day, Friday, Perney stopped by the Dulcimer house to get ready for
work and got the impression that appellant and his friends were leaving that
evening, so he gave them instructions about how to lock up. After work, Perney
went back to his girlfriend’s house in Fresno for the night without going back by
the Dulcimer house.
6
It is in the recitation of the events of the next day—Saturday, May 16,
2009—in Houston that there is some divergence between appellant’s and the other
witnesses’ version of events. On the morning of May 16, Mario, Mario’s girlfriend
Nicole, Chris, and Tracey Davis (Chris’s uncle, known as “Trey”) returned to
Monroe from three days in Ohio. Mario then decided then that they should go to
Houston.
After just a couple of hours in Monroe, Mario, his girlfriend Nicole, Chris,
John, Trey, and Mike Davis (Mario’s cousin) headed out to Houston in two
vehicles, a Ford F150 and a Lincoln Navigator. Although the purpose of the trip
was to buy marihuana, Trey and Mike were not involved in trafficking, but instead
were along for the ride to do some clubbing and shopping. Each person who was
coming to buy drugs was carrying his own money. John, Nicole, and Chris each
testified that Mario had $7,000 in his lower right cargo shorts pocket. Chris had
$3,000 and John had $1,600. Mario called Perney to let him know that they were
coming and would be staying at the Dulcimer house. No one who testified at trial
had talked to appellant or told appellant that they were traveling to Houston.
Unbeknownst to Perney, appellant and his friends had not left Houston on
Friday. Rather, according to appellant’s testimony, they stayed longer because he
had been unable to accomplish the drug transaction he wanted to complete. While
waiting at the house for his deal to come together, appellant decided on Saturday to
7
have Lashaka and her friend pick up his car to take it to a mechanic she knows to
troubleshoot a problem he had been having. As a result, there was no car outside
of the Dulcimer house on Saturday afternoon to indicate that appellant, Plug, and
P-A were there.
Mario arrived Saturday afternoon at the Dulcimer house in the Lincoln
Navigator with Nicole, Mike, and John. Because it appeared from the outside of
the house that no one was home, they waited for a few minutes outside. Mario
then called Perney, who said he would be there in 25–30 minutes. Mario decided
they should head over to an urban clothing store nearby to kill some time.
Chris and Trey pulled up a few minutes later in the F150 and likewise
assumed that no one was in the house. They headed to the same clothing store.
In the meantime, before Mario’s group made it back by, Perney stopped by
the Dulcimer house to leave a key for Mario outside. When he got there, he
decided to go in to the bathroom. He thought the house was empty but, when he
walked out of the bathroom, he was hit hard in the face and fell down. He looked
up from the floor saw Plug standing over him with a shotgun pointed at him, and
appellant standing next to Plug with a pistol down to his side. P-A was hovering
somewhere in the background. Perney jumped up; appellant was telling Perney to
“calm down, calm down,” while Plug was saying, “tie him up.” Perney testified
that appellant, Plug, and P-A had their faces partially covered at one point with t-
8
shirts, rags, or some kind of mask, but that their faces were fully visible to him
during most of the confrontation.
Perney testified that appellant and Plug started asking whether Mario was
with him and “Where is Mario?” Perney told them, “Mario is not with me. I don’t
know where Mario is.” Perney was agitated at this point and began yelling, “what
. . . is going on? I’m your uncle. You are my nephew. What’s all this about?”
Appellant continued trying to calm him down and at some point says, “Let him
go.” Perney went outside, jumped in his vehicle, and quickly sped away. As
Perney was pulling away, he called his mother. He did not see any vehicles pulling
up to the house as he was leaving. After hanging up with his mother, Perney
immediately called 911 to report “being accosted” at the house, and then drove to
Fresno. He did not call Mario to tell him what had happened.
Nicole, Mike, and John testified that they saw Perney driving away quickly
from the house as they were returning to the house from the clothing store. When
they could not get his attention, Mario tried to call him, but the call went straight to
Perney’s voicemail. The iron gate in front of the front door appeared open, so
Mario and Nicole got out of the Navigator to go inside. Before Mike and John
could also get out, Mario told them to run down to the corner convenience store for
cigarillos.
9
Nicole testified that they walked in the front door and Mario headed straight
for the bathroom in Perney’s bedroom. She dropped her purse onto the floor in the
living room, and followed Mario into the bathroom to talk to him. When she
turned back around and was walking out, she noticed someone run out of the
bedroom closet. Then someone ran into the living room behind her, told her to get
down onto the ground, and pressed something hard into her back that she assumed
was a gun. She heard two other people come downstairs and go into the bathroom
with Mario. She could not tell who remained in the room with her, in part because
the top and bottom of his face was covered with a shirt, with only his eyes
showing. She heard a commotion in the bathroom, and then a gunshot.2
The other two men immediately came out of the bathroom and into the
living room. They also had shirts around their faces; one was holding a shotgun
and the other a pistol. They were all asking her “where the money was” and
whether she had any money. She took what money was in her purse and threw it at
them. The bottom of one of their shirts came off and she recognized him as
appellant, whom she had known since middle school. Appellant looked at her and
said, “Duct tape that bitch.” One of the men taped her hands behind her back
while appellant and the other man ran out of the house. Nicole was left alone for a
2
On cross-examination she was asked about making the statement to police that she
overheard someone in the bathroom say, “Don’t shoot my family.” She testified at
trial that she recalled hearing someone in the bathroom say, “You are supposed to
be my family.”
10
few minutes with the one who had taped her hands, and then he finally shut her
inside the living room closet.
In the closet, she managed to remove the tape and, when the house was
quiet, she came out and ran to the bathroom. She found Mario on the floor “with
his face blown open.” She called John who was still at the store down the street,
where Chris and Trey had just met up with him and Mike. John testified that
Nicole was “hollering and crying, saying ‘They shot him.” John asked “Who?”
and she responded, “Jonathan and them.” John, Mike, Chris, and Trey raced back
to the house, where they found Nicole screaming and Mario leaning over the sink
moaning. The flap to his right bottom pocket on his cargo shorts was open, and the
$7,000 was gone.
John told Nicole to call 911, but they did not know the exact address so they
loaded up Mario in the backseat of the F150 and set off to find a hospital. They
spotted and flagged down Officer Magnum with the Houston Police Department
(HPD), who escorted them to the hospital where Mario died a few hours later. The
cause of death was a single shotgun blast to the face at close range.
C. The Investigation
Officer Hubenak with HPD testified that, right about the time Officer
Magnum was being flagged down, he was responding to a call about the gunshot at
the Dulcimer house. When he arrived, the front door was open. He found a shirt
11
drenched in blood inside the door, and a large amount of blood and flesh in the
downstairs bathroom. While Hubenak was waiting for homicide investigators,
Perney showed up. Perney told Hubenak that earlier in the evening he had been
involved in an argument with his nephew and some of his friends who were
wearing masks and had pistols. Tests for gunshot residue on Perney were negative.
In the bathroom, investigators recovered a plastic wad expelled from a
shotgun shell, along with the pellets and gunpower. They also recovered Mario’s
wallet containing his driver’s license, an empty cell phone holster, and a kitchen
knife on the floor by the toilet.3 Later, investigators returned and recovered the
shotgun from under the couch, a roll of tape, and a crumpled up piece of used
packing tape from the closet in which Nicole claimed she had been placed.
The investigating officer testified that Perney was initially considered a
suspect, but was later eliminated. After interviewing all the witnesses—including
all those who had traveled to Houston with Mario4—the suspects were appellant,
Plug, and P-A. After a warrant was issued for appellant’s arrest, appellant came to
the Houston to give a statement. Plug gave a confession to officers in Monroe, but
3
The knife contained traces of Mario’s DNA, as did most things in the bathroom.
The knife did not contain fingerprints matching Mario, appellant, Plug, or P-A.
4
The witnesses gave fairly consistent accounts of the facts, but were not initially
forthcoming about the real reason for traveling to Houston. Before admitting that
they were there to purchase drugs, they claimed that they were carrying large
amounts of cash to purchase clothing inventory for Mario’s wife, Nicole, to stock
in her store.
12
the record does not reflect the specifics of that confession. The record also reflects
that P-A was interviewed by police, but contains no information about what he told
them or what, if anything, he was charged with. Neither Plug nor P-A testified at
appellant’s trial.
D. Appellant’s Testimony
Appellant’s testimony differed as to some specifics of the events leading up
to the shooting. He testified that, at one point on Saturday, he was upstairs at the
Dulcimer house and saw two vehicles pull up—a Lincoln Navigator and an F150.
He did not recognize the Navigator, but when he saw the other truck, “he knew it
was Mario and them.” He never actually saw Mario, but he saw others get out of
the F150. By the time he got downstairs, they were gone. He assumed that they
had found the front door locked and then left.
A short time later, he claimed he was “involved in an accident with Plug and
[his] uncle.” Appellant was upstairs again and heard a commotion downstairs.
When he ran downstairs, he saw Plug “over the top of” Perney. Appellant asked
“what’s going on” and told Plug to “[l]et him up.” Perney, who was visibly
“nervous and shaking,” quickly left despite appellant’s calling his name and trying
to stop him.
A few minutes later, he saw the Navigator pull up out front and Mario and
his girlfriend Nicole get out and walk towards the house. Appellant stated that he
13
did not see where they went when they came into the house, and that he did not
know where Plug or P-A were at that time. When appellant came out of the
kitchen, he saw Nicole and Plug go running towards the front door, and he saw
Mario in the doorway to the downstairs bathroom. Appellant testified that he was
the only one approaching Mario, and that he had a gun in his pocket and a knife in
his hand. He explained that he had the handgun “for protection . . . because
[Mario] usually carr[ies] a gun, and I’m going to approach him about my money.”
He had the knife because he was “going to approach Mario with the knife instead
of the gun.” He confronted Mario and they got into an argument. He demanded
his money and claimed Mario responded, “Man, I told you I was going to give you
your money.” At one point, appellant claimed he “had enough of it,” threw down
the knife, and walked out of the bathroom.
According to appellant, Plug ran past him into the bathroom towards Mario
and then appellant heard a gunshot behind him. He ran back into the bathroom
where Mario was shot and started asking Plug, “Man, why did you shoot my
uncle” to which Plug responded, “I didn’t try to. I dropped it.” Appellant was
nervous and ran out the front door with P-A in tow. Plug caught up with them
down the street a few minutes later. Appellant tried to call Perney, but his call
went straight to voicemail. He then called one of his friends, Johno, to come pick
the three of them up.
14
Appellant claimed that he did not see Plug shoot Mario and that he did not
take any money off of Mario’s body. He denied that anyone had their face covered
when Perney or Mario arrived. He testified that Nicole was in the living room
when he ran out after Mario was shot, and that he never talked to her, never saw
anyone stand over her with a gun, and never saw anyone tape her hands or put her
in a closet.
Appellant borrowed Johno’s car for him and Plug to take back to Monroe.
He testified that it was his plan to turn Plug in, but he did not want to indicate that
because it is dangerous to be labeled a snitch. He returned to Houston the next day
with several family members and cooperated with police.
During cross-examination, appellant was confronted with several earlier
statements to police that contradicted his trial testimony, including a statement in
an earlier interview that Plug and P-A had “attacked Perney by mistake. I was
going to get in his pocket and get my money, and then I realized it was Perney. I
said, ‘Oh, let him go.’”5 He also disputed the accuracy of other witnesses’
testimony. For example, he denied saying to Perney, “Where is Mario?,” but
claimed he had instead asked Perney, “why did [sic] you tell me Mario was here?”
Appellant claimed that, when he confronted Mario, he had a gun in his back
pocket and a knife in his hand because Mario is known to carry a gun. He
5
He did not deny this statement, but stated that he could “not recall” making it.
15
conceded on cross-examination, however, that he did not have the knife out
because he was scared that Mario had a gun, but instead “had the knife just as a
scare tactic reason” to compel Mario to give him money.
Appellant was also confronted during cross examination about the fact that
everyone else consistently testified that he had been complaining that he lost
$5,000 in the March incident when John and Chris were arrested and claimed that
the police took their money. When he gave his first statement to police, however,
he claimed the amount was $7,000. He denied changing his story to justify why he
would have been entitled to take Mario’s $7,000 after Mario was shot.
Finally, when appellant disputed Nicole’s version of events, the State sought
to impeach him with the portion of an affidavit he had signed stating that he had
ordered Nicole to the ground and told her to get inside the living room closet.
Appellant explained that he had signed the affidavit because it was part of a plea
negotiation, and that his lawyer had read it and told him that it could not be used
against him. Appellant’s attorney did not object to this line of questioning.
Appellant testified during redirect that the affidavit had been prepared by the
district attorney’s office.
E. The Verdict and Judgment
The jury was charged with the offense of capital murder under three
alternative theories (as a primary actor, as a co-conspirator, and as a party) and the
16
lesser-included offense of aggravated robbery. During deliberations, the jury sent
a note requesting a copy of the affidavit referred to during appellant’s testimony.
The court instructed the jury that that the affidavit was not in evidence. The jury
then requested a transcript of appellant’s testimony, and was instructed that it
would have to certify specifically that a particular aspect of the testimony was in
dispute. The jury did not send a follow-up request for specific testimony. It
returned a verdict finding appellant guilty of capital murder. The trial court
entered a sentence of life imprisonment, and appellant timely appealed.
ISSUES ON APPEAL
Appellant brings the following four issues on appeal:
1. The evidence is insufficient to support Mr. Canfield’s
conviction for capital murder individually or as a party pursuant
to TEXAS PENAL CODE ANN. §7.02(a)(2) for the reason that
there was no evidence he was acting together with William
Garrett in a common purpose at the time of the complainant’s
death.
2. The evidence is insufficient to support Mr. Canfield’s
conviction for capital murder individually or as a party pursuant
to TEX. PENAL CODE ANN. § (a)(2) for the reason that he did not
intend to promote or assist William Garrett in the murder of the
complainant.
3. The evidence is insufficient to support Mr. Canfield’s
conviction for capital murder as a co-conspirator pursuant to
TEX. PENAL CODE ANN. § 7.02(b).
4. Mr. Canfield was denied the 6th Amendment right to the
effective assistance of counsel for the reason counsel failed to
object pursuant to TEX. RULE. EVID. 410(4) when the prosecutor
17
questioned the appellant about statements made during plea
negotiations in an effort to impeach him.
SUFFICIENCY OF THE EVIDENCE
In his first three points, the appellant challenges the sufficiency of the
evidence to support his capital murder conviction.
A. Applicable Law
A person commits capital murder “if the person commits murder as defined
under Section 19.02(b)(1)” i.e., intentionally or knowingly causes the death of an
individual, and “the person intentionally commits the murder in the course of
committing or attempting to commit . . . robbery.” TEX. PENAL CODE § 19.03
(Vernon 2011). A defendant who did not actually cause the death of the victim can
nonetheless be convicted of capital murder under section 7.02 of the Texas Penal
Code, which provides:
(a) A person is criminally responsible for an offense committed by the
conduct of another if:
(1) acting with the kind of culpability required for the
offense, he causes or aids an innocent or nonresponsible
person to engage in conduct prohibited by the definition
of the offense;
(2) acting with intent to promote or assist the commission of
the offense, he solicits, encourages, directs, aids, or
attempts to aid the other person to commit the offense; or
(3) having a legal duty to prevent commission of the offense
and acting with intent to promote or assist its
commission, he fails to make a reasonable effort to
prevent commission of the offense.
18
(b) If, in the attempt to carry out a conspiracy to commit one felony,
another felony is committed by one of the conspirators, all
conspirators are guilty of the felony actually committed, though
having no intent to commit it, if the offense was committed in
furtherance of the unlawful purpose and was one that should have
been anticipated as a result of the carrying out of the conspiracy.
TEX. PENAL CODE ANN. § 7.02 (Vernon 2011).
In this case, the jury was properly instructed that it could find appellant
guilty of capital murder either as a party to the offense under section 7.02(a)(2) or
a co-conspirator under section 7.02(b).
B. Standard of Review
When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict to determine whether any rational fact
finder could have found the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that
Jackson standard is only standard to use when determining sufficiency of
evidence).
The jurors are the exclusive judges of the facts, the credibility of the
witnesses, and the weight to be given to the testimony. Bartlett v. State, 270
S.W.3d 147, 150 (Tex. Crim. App. 2008). A jury may accept one version of the
facts and reject another, and it may reject any part of a witness’s testimony. See
Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); see also Henderson
19
v. State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d)
(stating jury can choose to disbelieve witness even when witness’s testimony is
uncontradicted). We may not re-evaluate the weight and credibility of the
evidence or substitute our judgment for that of the fact finder. Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We afford almost complete
deference to the jury’s determinations of credibility. See Lancon v. State, 253
S.W.3d 699, 705 (Tex. Crim. App. 2008). We resolve any inconsistencies in the
evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim.
App. 2000); see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007) (“When the record supports conflicting inferences, we presume that the
factfinder resolved the conflicts in favor of the prosecution and therefore defer to
that determination.”).
C. Analysis
In his third point of error, appellant argues that there is insufficient evidence
to support his conviction as a co-conspirator. See TEX. PENAL CODE § 7.02(b)
(Vernon 2011) (“If, in the attempt to carry out a conspiracy to commit one felony,
another felony is committed by one of the conspirators, all conspirators are guilty
of the felony actually committed, though having no intent to commit it, if the
offense was committed in furtherance of the unlawful purpose and was one that
should have been anticipated as a result of the carrying out of the conspiracy.”).
20
He contends that “[t]hey drove to Houston to buy drugs, not to kill Mario.” And
he cites Tippett v. State, 41 S.W.3d 316 (Tex. App.—Fort Worth 2001), overruled
on other grounds by Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007), for
the proposition that Plug’s prior involvement in selling drugs “does not give rise to
an inference he was violent as it has been found that drug dealing is not inherently
violent compared to other criminal enterprises.”
Appellant further argues that the facts here are distinguishable from other
cases in which the courts have found sufficient evidence to support a capital
murder conviction as a co-conspirator, pointing out that “there was no evidence the
appellant knew [Plug] had a reputation for violence or ‘hung out’ with him prior to
the instant cause,” see Queen v. State, 940 S.W.2d 781, 788 (Tex. App.—Austin
1997, pet. ref’d), “no reason for [appellant] to have anticipated any violence
towards the complainant as a result of any prior ill-will, or antagonism,” see Ross
v. State, 133 S.W.3d 618, 622 (Tex. Crim. App. 2004), and no evidence that
appellant knew “of any plan [Plug] had to rob and murder Mario,” Vodochodsky v.
State, 158 S.W.3d 502, 510–11 (Tex. Crim. App. 2005).
Indeed, he insists that Plug’s actions “were so unanticipated [appellant]
asked him why he shot Mario to which [Plug] replied ‘I didn’t try to. I dropped
it.’” Because appellant “could not have anticipated” Plug would kill Mario, he
21
urges us to find the evidence insufficient to support his conviction for capital
murder.
In response, the State contends that the evidence is “sufficient to support
appellant’s conviction for capital murder as a conspirator.” It argues that the
“testimony affirmatively demonstrates that the victim was murdered during the
course of a conspiracy to commit aggravated robbery.” It points to evidence about
the ongoing dispute between appellant and Mario about money Chris and John lost
to the police in March 2009, and the evidence that appellant, Plug, and P-A hid in
Perney’s house and ambushed him to confront him over that lost money. The State
disputes that “appellant’s alleged lack of knowledge regarding his co-conspirator’s
propensity for violence” renders the evidence insufficient.
The State argues the “fact that appellant armed himself with a handgun and a
knife and participated in the robbery constitutes additional circumstantial evidence
that he should have anticipated the resulting murder.” And the State contends that
appellant’s argument ignores that “Texas courts have consistently held that all
parties participating in a robbery are guilty of a murder which occurs in the course
of a conspiracy to commit robbery.” See Green v. State, 682 S.W.2d 271, 285–86
(Tex. Crim. App. 1984); Ruiz v. State, 579 S.W.2d 206, 209 (Tex. Crim. App.
1979); Naranjo v. State, 745 S.W.2d 430, 433–34 (Tex. App.—Houston [14th
Dist.] 1988, no pet.). Accordingly, the State argues, “a rational trier of fact could
22
have found beyond a reasonable doubt that murder should have been anticipated as
a result of carrying out the conspiracy to commit aggravated robbery.” We agree.
To convict appellant for capital murder as a co-conspirator, the State had to
prove (1) appellant was a party to a conspiracy to commit aggravated robbery, (2)
capital murder was committed by appellant or someone acting with him, (3) the
capital murder was committed in furtherance of the conspiracy to commit
aggravated robbery, and (4) appellant should have anticipated that capital murder
could occur as a result of the aggravated robbery. E.g., TEX. PENAL CODE ANN. §
7.02(b); Hartsfield v. State, 305 S.W.3d 859, 869 (Tex. App.—Texarkana 2010,
pet. ref’d). The State “does not have to prove that the accused intended to shoot or
kill the victim, or intended that the victim be shot, as long as the evidence
established he conspired to commit the robbery and that he ‘should have’
anticipated the murder as a result of carrying out the conspiracy to commit the
robbery.” Davis v. State, 276 S.W.3d 491, 495 (Tex. App.—Waco 2008, pet.
ref’d).
1. Evidence of conspiracy to commit aggravated robbery
The Texas Penal Code defines robbery as: in the course of committing theft,
and with the intent to obtain or maintain control of the property, a defendant
knowingly or recklessly causes bodily injury to another or intentionally or
knowingly threatens or places another in fear of imminent bodily injury or death.
23
See TEX. PENAL CODE ANN. § 29.02(a) (Vernon 2011); Sholars v. State, 312
S.W.3d 694, 703 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). Aggravated
robbery is robbery that causes serious bodily injury to another, or is committed
while using or exhibiting a deadly weapon. See TEX. PENAL CODE ANN. § 29.03
(Vernon 2011).
The jury was instructed that conspiracy means “an agreement between two
or more persons with intent that they, or one or more of them, engage in conduct
that would constitute the offense.” See TEX. PEN. CODE ANN. § 15.02(a) (Vernon
2011); see also Hooper v. State, 255 S.W.3d 262, 265–66 (Tex. App.—Waco
2008, pet. ref’d). The jury was also correctly instructed that such agreement “may
be inferred from acts of the parties.” TEX. PENAL CODE ANN. § 15.02(b). The court
may look to events occurring before, during, and after the commission of the
offense as evidence of criminal responsibility under the law of parties. Ervin v.
State, 333 S.W.3d 187, 201 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d)
(“Since an agreement between parties to act together in common design can
seldom be proven by words, the State often must rely on the actions of the parties,
shown by direct or circumstantial evidence, to establish an understanding or a
common design to commit the offense.”).
There is both direct and circumstantial evidence of such an agreement
among appellant, Plug, and P-A to commit aggravated robbery in this case.
24
Appellant admitted that he had an ongoing dispute with Mario because he thought
Mario should replace the money that was lost by Chris’s and John’s failed March
2009 drug run. Mario’s wife Nicole testified that appellant had previously
threatened Mario during an argument over that money. When appellant called
Lashaka to tell her that he was coming to Houston, he told her that something bad
was going to happen.
Appellant testified that he saw Mario’s group pull up to the Dulcimer house
the first time on Saturday before Mario decided to leave to go to the clothing store.
The next person to enter the house, Perney, was ambushed by Plug and appellant
brandishing weapons with their faces covered. When appellant realized it was
Perney, he demanded to know where Mario was.
When Mario and Nicole later entered the house, according to Nicole’s
testimony, one of the three people in the house—appellant, Plug, or P-A—was
hiding in the closet, and the other two were likewise hiding, as Nicole did not see
or hear anyone in the house. When she later saw them, all three initially had their
faces covered, and appellant and Plug had guns in their hands. Nicole testified that
“They were asking me where the money was.”
Appellant admits that he was the first to approach Mario, and that he
confronted Mario with a gun on his person and a knife in his hand. He testified
that he asked Mario “Where is my money?” and that he had the knife out as a scare
25
tactic to get Mario to hand over money. He testified that he and Plug both got the
guns they were carrying from P-A at some point earlier, which indicates advanced
planning of the robbery among the three. Chris, John and Nicole all testified that
Mario had $7,000 in his pocket, and that it was missing after he was shot.
Appellant, Plug, and P-A all fled the scene together, and appellant returned to
Monroe with Plug. Taken together, this is ample evidence that the three conspired
to commit aggravated robbery. Ervin, 333 S.W.3d at 201 (holding evidence
sufficient to demonstrate conspiracy to commit aggravated robbery in capital
murder trial premised on co-conspirator liability when defendant knew of the plan
to commit robbery, knew accomplices had guns, watched them put on masks and
hooded sweatshirts, and returned to pick them up after hearing gun shots).
2. Evidence that capital murder was committed by co-conspirator
The State was required to prove that the capital murder was committed by
appellant or someone acting with him. Appellant testified that Plug killed Mario,
and does not dispute that on appeal.
3. Evidence that Mario was killed in furtherance of conspiracy
There is sufficient evidence that Plug killed Mario in furtherance of the
conspiracy to commit aggravated robbery. Appellant testified that both he and
Plug got the guns they used from P-A, presumably for use in furtherance of the
26
aggravated robbery.6 The jury heard evidence that Plug and appellant together first
ambushed Perney with guns, and the fair inference from the evidence is that they
initially thought they were instead ambushing Mario, as they had previously seen
Mario’s group pull up outside, and did not have reason to be expecting Perney.
They also questioned Perney about Mario’s whereabouts before letting him go.
Appellant admits that he confronted Mario about his money immediately
before Mario was shot. Appellant contends that he left the bathroom, and then
Plug ran in and shot him. According to Nicole’s testimony, appellant and Plug
were in the bathroom together with Mario when he was shot. Someone took
Mario’s money from his pocket immediately after he was shot, and then appellant,
Plug, and P-A fled the scene together. There is sufficient evidence for the jury to
conclude that Mario was shot in furtherance of the conspiracy to commit
aggravated robbery. E.g., Davis v. State, 276 S.W.3d 491, 494–96 (Tex. App.—
Waco 2008, pet. ref’d) (evidence was sufficient that capital murder was in
furtherance of conspiracy to commit aggravated robbery in light of testimony that
defendant recruited three others to rob victim, provided them with guns and drove
them to site of robbery, where co-conspirators kicked down door and demanded
6
Appellant admitted that he got a gun from P-A to use in confronting Mario about
the lost money. He testified that Plug also got the shotgun from P-A, but did not
specifically testify as to the purpose of Plug obtaining the shotgun.
27
money from victim, and then returned fire that killed victim after victim began
shooting at them).
3. Evidence that appellant should have anticipated capital murder
Appellant focuses his argument primarily on attacking the sufficiency of the
evidence to satisfy the last requirement, i.e., that the State prove that he should
have anticipated that capital murder could occur as a result of the aggravated
robbery. The record shows that appellant and Plug armed themselves before
Perney or Mario arrived, and both Perney and Nicole testified to seeing both
appellant and Plug with firearms in their hands. Although appellant testified that
he did not threaten Mario with the gun nor did he expect Plug to, the jury heard
Perney’s testimony that appellant stood beside Plug as Plug had a shotgun pointed
at him when they accidently ambushed him first.
The facts here are similar to those that the Fourteenth Court considered in
Whitmire v. State and found to be sufficient to support a finding that a murder by
the co-conspirator during an aggravated robbery was foreseeable. 183 S.W.3d 522,
526–27 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d). In that case, the
defendant planned to rob the victim (a potentially armed drug dealer) and recruited
two other armed men to assist, one of whom ended up shooting the robbery victim.
Id. at 526. The defendant did not attempt to stop the confrontation, made no
attempt to render aid to the victim after the shooting, and did not report the crime
28
by his co-conspirator. Id. On appeal, the court held the evidence was sufficient to
show the defendant should have anticipated the murder in the course of the
aggravated robbery and, thus, sufficient to support his conviction for capital
murder. Id.
Indeed, we have previously admonished that “[e]vidence that a defendant
knew his co-conspirators might use guns in the course of the robbery can be
sufficient to demonstrate that the defendant should have anticipated the possibility
of murder occurring during the course of the robbery.” Love v. State, 199 S.W.3d
447, 453 & n.1 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); see also Green
v. State, 682 S.W.2d 271, 285–86 (Tex. Crim. App. 1984) (holding jury could
rationally conclude that murder should have been anticipated as possible result of
robbery when appellant admitted entering house with co-conspirators armed with
gun for the purpose of stealing firearms from the house); Williams v. State, 974
S.W.2d 324, 330 (Tex. App.—San Antonio 1998, pet. ref’d) (rejecting argument
that murder was an impulsive act by co-conspirator and instead holding evidence
sufficient to show that murder committed in course of pawn-shop robbery should
have been anticipated by appellant given that at least one of five conspirators
arrived at scene armed with gun, there was testimony by accomplice witness that
four of five conspirators left apartment with weapons, and there was evidence that
bullets or casings from two different guns were recovered from scene); Coleman v.
29
State, 956 S.W.2d 98, 102 (Tex. App.—Tyler 1997, pet. ref’d) (holding evidence
sufficient to support finding that appellant should have anticipated murder as result
of conspiracy to commit carjacking when evidence showed that, just prior to
murder, co-conspirator unsuccessfully tried to carjack another vehicle in
appellant's presence by wielding .45 caliber pistol, co-conspirator announced he
was going to get victim’s car, and after following victim home, co-conspirator
armed himself with .45 caliber pistol, appellant armed himself with sawed-off
shotgun, appellant admitted having knowledge of weapons in car, and appellant
admitted supplying shotgun).
We agree with the State that Tippitt v. State—the case cited by appellant for
the proposition that Plug’s involvement in the sale of drugs “does not give rise to
an inference he was violent as it has been found that drug dealing is not inherently
violent compared to other criminal enterprises”—is distinguishable. In that case,
the court held that although the defendant entered into a conspiracy to commit
robbery, his capital murder conviction as a co-conspirator could not stand without
some additional evidence showing that he should have anticipated the robbery
would result in murder. 41 S.W.3d at 326 (“We do not believe robbery is an
offense of such a violent nature that murder should always be anticipated as a
potential risk of its commission, and we have found no case that suggests
otherwise.”). Significantly, unlike appellant here, the defendant in Tippitt did not
30
know that his co-conspirator had a gun on his person, and the court relied on that
fact to distinguish cases holding that murder is foreseeable when a gun is used in
the commission of a robbery. Id. at 325–26. Tippitt is inapposite, and thus does
not support appellant’s argument that the evidence is insufficient to show that he
should have anticipated the murder.
Because there is sufficient evidence to support appellant’s conviction for
capital murder as a co-conspirator, we overrule appellant’s third issue. We
accordingly need not reach his first or second issues, which challenge the
sufficiency of the evidence to support his capital murder conviction as a primary
actor or party to the offense. E.g., Whitmire, 183 S.W.3d at 526–27 (when the jury
is instructed on alternative bases for capital murder, i.e., “(1) as the principal
shooter; (2) as a party to the offense; or (3) under conspirator liability” and the jury
returns a general verdict of guilty for capital murder, the appellate court can affirm
the conviction if there is evidence to support the verdict on any of the instructed
bases).
INEFFECTIVE ASSISTANCE OF COUNSEL
In his fourth issue, appellant complains that his trial lawyer rendered
ineffective assistance of counsel by failing to object to the State’s use of an
affidavit he gave during plea negotiations for impeachment purposes.
31
A. Applicable Law
The Texas Rules of Evidence specifically limit the admissibility of certain
evidence related to plea discussions:
Except as otherwise provided in this rule, evidence of the following is
not admissible against the defendant who made the plea or was a
participant in the plea discussions:
(1) a plea of guilty that was later withdrawn;
....
(4) any statement made in the course of plea discussions with an
attorney for the prosecuting authority, in a civil case, that do not result
in a plea of guilty or that result in a plea of guilty later withdrawn, or
in a criminal case, that do not result in a plea of guilty or a plea of
nolo contendere or that results in a plea, later withdrawn, of guilty or
nolo contendere.
However, such a statement is admissible in any proceeding wherein
another statement made in the course of the same plea or plea
discussions has been introduced and the statement ought in fairness be
considered contemporaneously with it.
TEX. R. EVID. 410. Impeachment of the defendant is not a permissible use of
statements made during plea negotiation. Abdygapparova v. State, 243 S.W.3d
191, 206 (Tex. App.—San Antonio 2007, pet. ref’d) (“Rule 410 should bar the use
of pleas and plea related statements for impeachment. Thus, the trial court erred in
allowing the State to proceed with questions relating to statements made during
plea negotiations.”); Taylor v. State, 19 S.W.3d 858, 863 (Tex. App.—Eastland
2000, pet. ref’d) (holding that trial court’s allowing State’s use of plea negotiation
for purpose of impeachment was “clear error”); see also Hardin v. State, No. 03-
32
00-00337-CR, 2001 WL 325047, at *2 (Tex. App.—Austin April 5, 2001, pet.
ref’d) (noting appellant’s argument that “no exception exists allowing use of [Rule
410] evidence for impeachment . . . comports with” several cases) (mem. op., not
designated for publication).7
B. Standard of Review
In determining whether counsel’s representation was so inadequate as to
violate a defendant's Sixth Amendment right to counsel, Texas courts adhere to the
two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052 (1984); see also Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App.
1986). Judicial review of an ineffective assistance of counsel claim must be highly
deferential to trial counsel and avoid using hindsight to evaluate counsel’s actions.
Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). There is a strong
presumption that counsel’s conduct fell within the wide range of reasonable
7
But cf. Bowley v. State, 310 S.W.3d 431, 435 (Tex. Crim. App. 2010) (holding
State’s cross-examination of defendant about plea negotiations was permissible to
demonstrate that defendant’s potential motive for pleading “not guilty” at trial was his
belief that he had not been offered a light enough sentence during negotiations;
defendant “opened the door” by testifying that he pleaded guilty in the past to DWI
because he was guilty and pleaded “not guilty” in this case because he was not guilty).
Four justices in Bowley dissented with the view that Rule 410 does not allow such
evidence even if the defendant otherwise “opened the door,” Id. at 436–37 & 442 n.4
(Price, J., dissenting, joined by Meyers, Johnson, and Holcomb, J.J.), and that, in any
event, the trial court could have exercised discretion to exclude the evidence under Rule
403. Id. at 441–42 (Holcomb, J., dissenting, joined by Meyers, Price, and Johnson, J.J.).
The State has not argued that appellant “opened the door” under Bowley’s narrow
exception here, and we conclude that Bowley’s facts are distinguishable.
33
professional assistance. Strickland, 466 U.S. at 690, 104 S. Ct. 2066. The burden
is on appellant to prove by a preponderance of the evidence that counsel was
ineffective. See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)
(en banc). To meet this burden, an appellant must first prove that counsel’s
performance was deficient, i.e., that counsel’s assistance fell below an objective
standard of reasonableness. Id. If the appellant has demonstrated deficient
assistance of counsel, it is then necessary that the appellant affirmatively prove that
he was prejudiced by the deficient assistance. Id. In proving prejudice, appellant
must prove a reasonable probability that, but for counsel’s errors, the result of the
proceeding would have been different. Id.; Hernandez, 726 S.W.2d at 55. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome. Hernandez, 726 S.W.2d at 55.
Any allegation of ineffective assistance of counsel must be firmly founded in
the record and the record must affirmatively demonstrate the alleged
ineffectiveness. McFarland, 928 S.W.2d at 500. Failure to make the required
showing of either deficient performance or sufficient prejudice defeats the
ineffectiveness claim. Id. Absent both showings, an appellate court cannot
conclude the conviction resulted from a breakdown in the adversarial process that
renders the result unreliable. Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex.
Crim. App. 1993). Appellate courts look to the totality of the representation and
34
the particular circumstances of each case in evaluating the effectiveness of counsel.
Ex parte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App.1991). It is possible that a
single egregious error of omission or commission by appellant’s counsel can
constitute ineffective assistance. Id.
C. Analysis
The entire exchange that is the subject of appellant’s fourth issue is as
follows:
[STATE’S COUNSEL]: May I approach the witness, Judge?
THE COURT: You may.
Q. I'm going to show you what’s marked just for identification
purposes as State’s Exhibit 111. Can you read the top line there? What
does it say right there (indicating)?
A. “Before me the under –”
Q. No. “Affidavit of . . .”
A. “Affidavit of Jonathan Canfield.”
Q. So it’s your affidavit, right?
A. Yes.
Q. These are your legal warnings explaining to you, you don't
have to give this, right? Those are your initials by all those legal
warnings, right?
A. Yes.
Q. It’s a typewritten statement, right?
A. Yes.
Q. In fact, if you turn to the second page, the date of this
affidavit is October 28, 2011, right?
A. Yes, but that’s part of a plea deal.
Q. No, that wasn’t a plea deal. This is you giving an affidavit,
wasn’t it?
35
A. Yes, but it was part of the plea deal they gave me.
Q. There was no agreement. In fact, it says, this is just an
affidavit for you to give possible truthful testimony, and you are not
promised anything for this affidavit, right?
A. My attorneys read it, and they said it can’t be used against
me.
Q. Is that your signature there?
A. Yes, sir.
Q. It says, “I went into living room area of the house and came
into contact with Nicole. I displayed my handgun and ordered her to
get on the ground. I eventually told Nicole to get inside the closet that
was located in the living room,” didn’t you? That’s saying something
about Nicole, right?
A. Yes, but that was all part of a plea deal.
Appellant argues that his “credibility was critical to the resolution of his
case” because his “testimony was the only evidence offered by counsel as to what
occurred at the time of the shooting.” He complains that the State’s use of an
affidavit he signed during plea negotiations for impeachment was in direct
violation of Rule 410(4) of the Texas Rules of Evidence, and that allowing such
impeachment undermines the strong policies behind Rule 410 of facilitating and
encouraging plea negotiations. For these reasons, he argues that the trial court
would have erred in overruling any objection to the State’s use of this evidence,
and that his attorney rendered deficient performance by failing to object. Finally,
appellant insists he was harmed by his counsel’s error because it undermined his
credibility with the jury. He points out that the complained-of exchange came near
the end of his testimony, and was obviously fresh in the jury’s mind because the
36
jury requested a copy of the affidavit. He also notes that the mere mention of plea
negotiations can cast doubt over a defendant’s innocence.
In response, the State first argues that the record is not sufficiency developed
to establish whether appellant’s affidavit was, in fact, provided in the course of
plea discussions.8 Alternatively, the State contends that we should defer to
appellant’s counsel if there is at least the possibility that the conduct could have
8
The State does not dispute that plea negotiations occurred; indeed the record
(outside the jury’s presence) reflects they did occur, but no deal was reached because
appellant would not accept a punishment of greater than 40 years’ confinement. The
State instead contends that appellant’s uncontroverted testimony that he signed a written
statement, drafted by the district attorney’s office, during plea negotiations on the advice
of his counsel (who told him that the statement would be inadmissible) is insufficient to
bring the statement within the purview of Rule 410. In support, the State cites five pre-
Rule 410 cases for the proposition that appellant must prove that his statement was
“induced by promises that are: (1) positive; (2) made or sanctioned by someone in
authority; (3) of some benefit to the accused; and (4) of such character as would be likely
to influence the accused to speak untruthfully.” But the plain language of Rule 410
renders inadmissible “any statement made in the course of plea discussions with an
attorney for the prosecuting authority,” (emphasis added) not only statements first
induced by a particular promise. In any event, none of the cases the State cites involve
similar evidence or arguments. See Richardson v. State, 667 S.W.2d 268, 269 (Tex.
App.—Texarkana 1984, pet. ref’d) (reversing conviction because admission of
defendant’s confession from aborted plea deal was error); Fisher v. State, 379 S.W.2d
900, 901 (Tex. Crim. App. 1964) (reversing conviction because it was error to refuse to
instruct jury to determine voluntariness of confession made to defendant’s
employer/minister, who promised to not press charges); Washington v. State, 582 S.W.2d
122, 124 (Tex. Crim. App. 1979) (reversing conviction because it was error to admit
defendant’s confession made as part of a plea bargain to avoid earlier trial); Walker v.
State, 626 S.W.2d 777, 778 (Tex. Crim. App. 1982) (reversing conviction because it was
error to admit confession made as part of a plea deal); Wayne v. State, 756 S.W.2d 724,
733 (Tex. Crim. App. 1988) (holding confession was admissible because appellant did
not establish that statement to police officer was part of plea negotiations; appellant
himself did not testify to engaging in plea discussions (either before or outside the
presence of the jury), and the circumstances surrounding the discussion did not otherwise
reflect circumstances that would be expected in a negotiation session).
37
been legitimate trial strategy. The State does not speculate as to what a legitimate
trial strategy would have been for the failure to object.
Finally, the State argues that appellant has not demonstrated prejudice, i.e.,
that but for counsel’s isolated failure to object to testimony regarding the affidavit,
the outcome of the trial would have been different. The State posits that
appellant’s credibility was undermined by the numerous inconsistencies between
his trial testimony and his other prior statements to police that were the proper
subject of impeachment. Moreover, the State points out, appellant’s defense was
undercut by the highly implausible nature of the defensive theory he presented at
trial.
The affidavit complained of here, which was not admitted into evidence, was
prepared by one of the prosecuting attorneys at trial and, oddly, the portion of the
affidavit that the State used in cross-examining appellant does not square with any
witnesses’ version of about what happened immediately after the shooting—not
appellant’s nor Nicole’s. While the statements from the affidavit were not related
to Mario’s shooting, their admission could have been harmful in the sense that they
did contradict appellant’s trial testimony (going to his credibility) and they did
reveal that he had engaged in plea negotiations (potentially supporting an inference
of guilt).
38
Assuming without deciding that appellant has demonstrated that his lawyer’s
failure to object to the State’s use of this affidavit amounted to deficient
performance under Strickland, we nonetheless hold that appellant has failed to
demonstrate—on this record—that he was prejudiced by his counsel’s failure to
object to the State’s cross-examination about statements in the affidavit.
Appellant’s primary contention is that the inconsistencies between the
affidavit and his trial testimony were damaging to his credibility, which was
critical in this case. But the inconsistencies between the quoted portions of the
complained-of affidavit and appellant’s testimony at trial only relate to whether
appellant spoke to Nicole and ordered her into the closet. Any damage to
appellant’s credibility caused by that inconsistency is paled by the damage from
the significant other inconsistencies the jury witnessed between appellant’s trial
testimony on one hand, and his earlier statements and the testimony of other
witnesses on the other. Indeed, appellant was presented with so many
inconsistencies between earlier statements and his trial testimony that at one point
he agreed that “every word out of [his] mouth is basically a lie” in his first
statement to police.
Moreover, the damning admissions that appellant made during his own
testimony—including his admissions that he planned and committed aggravated
robbery of Mario, that he and Plug armed themselves with guns earlier in the day
39
before ambushing Mario, that he fled the house without rendering aid or assistance
to Mario, and that he ultimately drove all the way back to Monroe with Mario’s
killer—render the issue of credibility significantly less important in this case, as
the jury could have believed every word of appellant’s trial testimony and still
convicted him of capital murder as a co-conspirator.
Appellant also argues that this State’s use of the affidavit “cast considerable
doubt over whether [he] was in fact not guilty because it can be easily inferred he
would not have entered into guilty plea negotiations if he was innocent.” He cites
Justice Holcomb’s observation in his dissent in Bowley, that the “potential impact
on jurors of the mention of plea negotiations cannot be overstated.” 310 S.W.3d at
442 (Holcomb, J., dissenting). That is a proposition with which we agree, but the
potential harm depends in large part on the nature of the defendant’s defense in a
particular case. In Bowley, the defendant was on trial on his third DWI charge. He
testified that he pleaded “guilty” on the prior charges because he was guilty, and
that he pleaded “not guilty” in the current case, because he was not guilty. Id. The
harm in mentioning plea negotiations in that situation is the risk that the jury will
conclude that a person who is innocent would not contemplate admitting guilt. Id.
at 442 (Holcomb, J., dissenting).
Here, appellant was charged with capital murder as a party and co-
conspirator, and with the lesser-included offense of aggravated robbery. Appellant
40
admitted to being at the scene with a gun and a knife, and admitted to confronting
Mario with two weapons to intimidate him into turning over his money. In other
words, he admitted in front of the jury to committing the crime of aggravated
robbery, one of the two crimes he was charged with. Appellant also testified that
he spoke with police several times and that his motivation in doing so was to assist
the investigation, bring justice for Mario, and inform the police that Plug was
responsible for Mario’s death. The theme of his defense at trial was that the crimes
were not premeditated, that he did not conspire with Plug, and that he could not
have anticipated Plug would shoot Mario. In light of the charges, appellant’s
testimony, and appellant’s defense, the fact that appellant engaged in some type of
plea negotiations would not necessarily be contrary to appellant’s version of
events. Thus, on this particular record, we do not agree that revealing to the jury
that plea negotiations had taken place would have the same prejudicial impact as it
would in a case such as Bowley, in which a defendant has presented a defense that
is wholly inconsistent with the charged offenses, leading to the inference that plea
negotiations were only contemplated because the defendant was guilty.
Because appellant has not shown that “there is a reasonable probability that,
absent [his lawyer’s failure to object to the questioning about the affidavit], the
factfinder would have had a reasonable doubt respecting guilt,” he has not
demonstrated he is entitled to a new trial. Perez v. State, 310 S.W.3d 890, 894
41
(Tex. Crim. App. 2010) (citing Strickland, 466 U.S. at 695). We accordingly
overrule appellant’s fourth issue.
CONCLUSION
We affirm appellant’s conviction.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Sharp and Massengale. Justice
Sharp, concurring in judgment only.
Publish. TEX. R. APP. P. 47.2(b).
42