                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-06-00009-CR

CHAD FENLEY DAVIS,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 85th District Court
                              Brazos County, Texas
                        Trial Court No. 04-01287-CRF-85


                                   OPINION


      Appellant Chad Fenley Davis appeals his conviction for capital murder in which

the State did not seek the death penalty. See TEX. PEN. CODE ANN. §§ 12.31(b), 19.03(a)

(Vernon Supp. 2008). We will affirm.

                               Procedural Background

      Davis was charged with capital murder to which he pled not guilty. A jury

found Davis guilty of capital murder and the court imposed an automatic life sentence.

Davis filed a pro se motion for new trial. The motion was never ruled on, and Davis
filed a direct appeal arguing, among other things, that he was improperly denied

counsel during the motion-for-new-trial period. We sustained his first issue and did

not address his ten remaining issues. We abated the appeal so that a motion for new

trial could be filed, presented, and heard. Davis’s attorney then filed a motion for new

trial, a hearing was held, and the trial court denied the motion. We now address

Davis’s ten remaining issues from his original brief and three additional issues raised in

his post-abatement briefs.

                                             Background

         Davis was charged with capital murder in the shooting death of Tommy

Andrade. During the fact-intensive nine-day trial, the evidence established that Davis,

along with his father, Willie Davis (Willie), and his brother Trey Davis (Trey), recruited

three men, Boris Mogilevich, Bradley Padrick, and Jesse Mancuso, to steal $100,000 that

Andrade had allegedly stolen from Davis.1

         Witnesses testified that, on the night in question, Davis drove Padrick,

Mogilevich, and Mancuso to the home of Andrade and provided them with handguns,

a stun gun, and a can of mace. Padrick, Mogilevich, and Mancuso then kicked in

Andrade’s door and began asking him for the stolen money. Andrade allegedly began

shooting, hitting both Mogilevich and Padrick and killing Mancuso. After Mogilevich

was shot, he returned gunfire and killed Andrade. Mogilevich and Padrick then fled

the scene, leaving Mancuso behind.



1        Significant evidence was presented at trial alleging that all of these men were involved with drug
trafficking and were known drug dealers.

Davis v. State                                                                                      Page 2
         Several witnesses, including Padrick, testified that they were recruited by Davis

for the robbery but were not hired to kill Andrade. The jury charge stated that Davis

could be convicted for the death of Andrade as a co-conspirator. The jury found Davis

guilty of capital murder and he was assessed punishment at life in prison.

                              Legal and Factual Sufficiency

         Davis’s first four issues challenge the legal and factual sufficiency of the

evidence. In issues two and three, he argues that the evidence was insufficient to prove

that the shooting of Andrade was in furtherance of the unlawful purpose of the

conspiracy to commit the offenses of aggravated robbery, aggravated assault, or

burglary of a habitation. In issues four and five, Davis argues that the evidence is

insufficient to prove that the shooting of Andrade should have been anticipated as a

result of carrying out the conspiracy.

         A person commits capital murder if he intentionally causes the death of an

individual in the course of committing or attempting to commit robbery. TEX. PEN.

CODE ANN. §§ 19.02(b)(1), 19.03(a)(2) (Vernon 2003 & Supp. 2008). If, in an 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 carrying out the

conspiracy. Id. § 7.02(b) (Vernon 2003); see Hooper v. State, 255 S.W.3d 262, 265-66 (Tex.

App.—Waco 2008, no pet.). Each conspirator is guilty of the resulting offense, even if

he did not intend to commit it or intend that it be committed. Ruiz v. State, 579 S.W.2d

Davis v. State                                                                      Page 3
206, 209 (Tex. Crim. App. 1979); see also Fuller v. State, 827 S.W.2d 919, 932 (Tex. Crim.

App. 1992) cert. denied, 509 U.S. 922; Love v. State, 199 S.W.3d 447, 453 (Tex. App.—

Houston [1st Dist.] 2006, pet. ref'd) (“a defendant in a capital murder case may be

convicted solely on a conspiracy theory of culpability contained in the jury charge”);

Hanson v. State, 55 S.W.3d 681, 691 (Tex. App.—Austin 2001, pet ref’d). Thus, 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. Moore v. State, 24 S.W.3d 444, 447 (Tex. App.—

Texarkana 2000, pet. ref’d).

         Evidence 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. See

Hooper, 255 S.W.3d at 266; see also Love, 199 S.W.3d at 453. (holding evidence was

sufficient to show murder was committed in attempt to carry out robbery and should

have been anticipated by appellant when appellant helped plan robbery and knew that

firearms would be used).

         When reviewing a challenge to the legal sufficiency of the evidence to establish

the elements of a penal offense, we must determine whether, after viewing all the

evidence in the light most favorable to the verdict, any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. See Jackson v.

Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Our duty is to

Davis v. State                                                                      Page 4
determine if the finding of the trier of fact is rational by viewing all of the evidence

admitted at trial in the light most favorable to the verdict. Adelman v. State, 828 S.W.2d

418, 422 (Tex. Crim. App. 1992). In doing so, any inconsistencies in the evidence are

resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App.

2000).

         In a factual sufficiency review, we ask whether a neutral review of all the

evidence, though legally sufficient, demonstrates either that the proof of guilt is so

weak or that conflicting evidence is so strong as to render the factfinder’s verdict clearly

wrong and manifestly unjust. Watson v. State, 204 S.W.3d. 404, 414-15 (Tex. Crim. App.

2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). “The court reviews the

evidence weighed by the jury that tends to prove the existence of the elemental fact in

dispute and compares it with the evidence that tends to disprove that fact.” Johnson, 23

S.W.3d at 7 (quoting Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)). The

appellate court “does not indulge in inferences or confine its view to evidence favoring

one side of the case. Rather, it looks at all the evidence on both sides and then makes a

predominantly intuitive judgment. . . .” Id. (quoting William Powers and Jack Ratliff,

Another Look at “No Evidence” and “Insufficient Evidence,” 69 TEXAS L. REV. 515, 519

(1991)).     The nature of a factual sufficiency review authorizes an appellate court,

although to a very limited degree, to act as the so-called “thirteenth juror” to review the

factfinder’s weighing of the evidence and disagree with the factfinder’s determination.

Watson, 204 S.W.3d at 416-17.



Davis v. State                                                                        Page 5
Furtherance of the Conspiracy

         After a careful review of the evidence, we find that the evidence supports the

conclusion that the murder of Andrade was committed in furtherance of the

conspiracy’s unlawful purpose. The jury heard the following evidence on the alleged

conspiracy:

    Padrick testified that he became involved in the plan to rob Andrade when T.J.
    Parent2 told him that Davis had gotten into a problem with a person who stole
    approximately $100,000 from him. T.J. promised Padrick that if he would go down
    to Houston and help Davis with this situation, T.J. would make sure that Padrick’s
    mortgage was taken care of. Padrick flew to Texas with Mogilevich from Georgia,
    where they both stayed in Bryan on a tour bus owned by Willie. Padrick stated that
    he was working for Davis to make money and that he took his directions from
    Davis. Davis told Padrick that the reason he was here was because there was some
    money that was taken from him and he wanted Padrick to retrieve as much money
    or drugs that he possibly could, as well as bring Andrade back to him.

    One night, Padrick, Davis, Trey and Mogilevich drove through the parking lot of a
    College Station nightclub, and Davis pointed out Andrade to them. A few days
    before the shooting, Trey and Davis drove Padrick and Mogilevich by Andrade’s
    house. Padrick testified that he noticed that there was a lot of traffic in and out of
    Andrade’s house and that he was concerned that he and Mogilevich were the only
    two going into Andrade’s house so he told Davis that they needed an additional
    person. Mancuso was thus recruited to join Padrick and Mogilevich. They later
    drove by Andrade’s house three additional times before the robbery.

    After Mancuso arrived, they all had a meeting on the tour bus. Present were
    Padrick, Mogilevich, Mancuso, Davis, and Trey, and they had two guns, a stun gun,
    and a can of mace. They also discussed the plan. Padrick testified that “we were to
    go into the house. We were suppose to kick—you know, kick the door in to the
    residence and retrieve as much money and drugs and—as much valuables as we
    could as well as bring Tommy Andrade to the tour bus—to Chad Davis.” The guns
    were loaded and were for “persuasion purposes.”

    Padrick testified that a 1980s Lincoln was purchased specifically for going to
    Andrade’s house.

2
       At trial, several witnesses stated that they knew that T.J. was a drug dealer and that Mogilevich
worked for T.J.

Davis v. State                                                                                    Page 6
    During the search of the residence of Trey and Willie, Officer Frank Malinak
    recovered a total of $15,273.25. In Trey Davis’s room, he recovered a Kel Tec 9
    millimeter assault rifle and a Glock .40 caliber automatic pistol. In an Impala located
    on the Davis property and registered to Trey Davis, he recovered a 12-gauge pump
    shotgun.

         Viewing all of the evidence in the light most favorable to the verdict, we

conclude that the jury could have found the essential elements of the crime beyond a

reasonable doubt. See Hooper, 255 S.W.3d at 265-66; Love, 199 S.W.3d at 452-54. Viewing

the evidence in a neutral light, we also conclude that the jury was rationally justified in

finding guilt beyond a reasonable doubt. See Watson, 204 S.W.3d at 414-15; Hooper, 255

S.W.3d at 267. Because the evidence is both legally and factually sufficient to support a

finding that the shooting that resulted in Andrade’s death occurred in furtherance of

the unlawful purpose of the conspiracy, we overrule his issues two and three. TEX. PEN.

CODE ANN. § 7.02(b).

Anticipation

         The evidence is also sufficient to support a finding that Davis should have

anticipated the possibility of a murder resulting from the course of committing this

robbery. According to Padrick, Davis provided the loaded handguns and the stun gun

and did anticipate that they might be used. Crockett testified that he overheard a

conversation between Davis and Trey where Davis stated “if guns go off, some guns go

off.” The evidence further shows that the assailants anticipated the potential use of gun

violence. Padrick testified that he asked Davis to recruit an additional person to rob

Andrade because of the danger involved with the frequent drug traffic in and out of


Davis v. State                                                                       Page 7
Andrade’s home. Goodman testified that although he was never hired to murder

Andrade, he did not participate in the robbery because of the great potential for the

robbery to escalate due to the large amount of money involved. A jury could infer from

these statements that Davis anticipated, or should have anticipated, the possibility that

the assailants might resort to using the loaded guns that he provided them if necessary.

See Hooper, 255 S.W.3d at 266; Love, 199 S.W.3d at 453.

         Davis discussed with Padrick and the other parties the possibility of gun

violence. He knew that Andrade was a drug dealer. He provided the assailants with

loaded weapons. Viewing all the evidence in the light most favorable to the verdict, we

find the evidence is legally sufficient to support a finding that Davis should have

anticipated the events that occurred. See id.; TEX. PEN. CODE ANN. § 7.02(b). Our neutral

review of all the evidence does not demonstrate either that the proof of guilt is so weak

or that conflicting evidence is so strong as to render the jury's finding clearly wrong and

manifestly unjust. See Watson, 204 S.W.3d at 415.

         Because we conclude that the evidence is legally and factually sufficient to

support a finding that the shooting that resulted in Andrade’s death should have been

anticipated by Davis, we overrule Davis’s fourth and fifth issues.        See Hooper, 255

S.W.3d at 266-67; see also Williams v. State, 974 S.W.2d 324, 330 (Tex. App.—San Antonio

1998, pet. ref'd) (holding evidence sufficient that murder committed in course of pawn

shop robbery was foreseeable to appellant where evidence showed at least one of five

conspirators arrived at scene armed with gun, there was testimony by accomplice




Davis v. State                                                                       Page 8
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).

                               Accomplice-Witness Testimony

         In his sixth issue, Davis complains that the evidence is insufficient to corroborate

the testimony of accomplice Padrick. Davis argues that when Padrick’s testimony is

eliminated, the remaining non-accomplice evidence does not tend to connect him to the

offense.

                A conviction cannot be had upon the testimony of an accomplice
         unless corroborated by other evidence tending to connect the defendant
         with the offense committed; and the corroboration is not sufficient if it
         merely shows the commission of the offense.

TEX. CODE CRIM. PROC. ANN art. 38.14 (Vernon 2005).

         In conducting a sufficiency review, we “eliminate the accomplice testimony from

consideration and then examine the remaining portions of the record to see if there is

any evidence that tends to connect the accused with the commission of the crime.”

Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001); Hardie v. State, 79 S.W.3d

625, 630 (Tex. App.—Waco 2002, pet. ref’d). “While the accused’s mere presence in the

company of the accomplice before, during, and after the commission of the offense is

insufficient by itself to corroborate accomplice testimony, evidence of such presence,

coupled with other suspicious circumstances, may tend to connect the accused to the

offense.”        Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996).       “Even

apparently insignificant incriminating circumstances may sometimes afford satisfactory

evidence of corroboration.” Id.


Davis v. State                                                                         Page 9
         The record contains sufficient non-accomplice evidence tending to connect Davis

to the conspiracy. Goodman, who was originally recruited to help “steal” Davis’s

$100,000 from Andrade, testified that he came to Texas with Mogilevich to get back

Davis’s stolen money. Davis picked them up in Houston at the airport and dropped

them off at a hotel, where they spent the night. Trey then picked them up the next

morning and took him to his house. Initially, Goodman believed that Davis wanted

him and Mogilevich to tell Andrade to pay the money back. Specifically, Davis told

Goodman “we might find him at a strip club or, like at a rim shop; and they wanted us

to approach him and let him know that he needed to pay back the money.” The

Davises then suggested that, if they located Andrade’s home, they could burglarize it

and take jewelry, money, and drugs. Goodman told the Davises that because he had

previously been in jail for burglary, he was no longer interested in helping them. He

testified that he thought the burglary would probably escalate into something beyond a

robbery because he felt that someone who was willing to steal $100,000 was probably

not a pushover. Goodman refused to participate and asked Davis to take him to the

airport so that he could leave. Goodman returned to Georgia later that evening.

         Crockett testified that he heard Davis mention plans to go and steal back the

money that had been stolen from him. Crocket also heard Davis and Trey discuss what

would happen if the plan escalated. Crockett testified that when asked about the use of

force in the robbery, Davis replied, “if some guns go off, some guns go off.” He also

heard Davis say, “if shit hits the fan, they were going to take care of business.” He then

later saw Mogilevich driving the Lincoln with Davis and Padrick.

Davis v. State                                                                     Page 10
         In sum, Padrick testified that the plan of action he entered into with Davis called

for the assailants to break into Andrade’s residence, take property, and bring Andrade

to Davis in the tour bus located at Willie Davis’s home. Removing that testimony as

accomplice witness testimony, the testimony by both Goodman and Crockett

sufficiently corroborate Padrick’s testimony. Because this non-accomplice testimony

tends to connect Davis to the offense and thereby corroborates Padrick’s testimony, we

overrule Davis’s sixth issue. See McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App.

1997).

                                        Self-Defense

         In his seventh issue, Davis argues that the trial court erred in denying his

requested self-defense instruction. See TEX. PEN. CODE ANN. § 15.04(b) (Vernon 2003).

During the charge conference, Davis asked the court to submit a charge to the jury on

the law of self-defense. The trial court denied the request and ultimately told the jury

that self-defense was not available in this case because the burglars entered Andrade’s

home while unlawfully possessing firearms. Davis contends that a defendant is entitled

to an instruction on self-defense if the evidence raises the issue, whether the evidence is

strong or weak, unimpeached or contradicted, regardless of what the trial court may

think about the credibility of the defense. See Ferrel v. State, 55 S.W.3d 586, 591 (Tex.

Crim. App. 2001). However, "no error is shown in the denial of a defensive instruction

if the evidence establishes as a matter of law that the defendant is not entitled to rely on

this defense.” Johnson v. State, 157 S.W.3d 48, 50 (Tex. App.—Waco 2004, no pet.); see

Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984).

Davis v. State                                                                       Page 11
         In general, "a person is justified in using force against another when and to the

degree he reasonably believes the force is immediately necessary to protect himself

against the other's use or attempted use of unlawful force." TEX. PEN. CODE ANN. §

9.31(a) (Vernon 2003). Further, a "defendant is entitled to an affirmative defensive

instruction on every issue raised by the evidence . . . ." Hamel v. State, 916 S.W.2d 491,

493 (Tex. Crim. App 1996); VanBrackle v. State, 179 S.W.3d 708, 712 (Tex. App.—Austin

2005). However, if the evidence, viewed in the light most favorable to the defendant,

does not establish self-defense, the defendant is not entitled to an instruction on the

issue.    Ferrel, 55 S.W.3d at 591; Williams v. State, 35 S.W.3d 783, 787 (Tex. App.—

Beaumont 2001, pet. ref’d).

         The court in Williams found no error in the denial of a self-defense instruction

when the defendant intentionally sought out the victim to discuss their differences

while unlawfully armed with a handgun. See Williams, 35 S.W.3d at 786-87; see also TEX.

PEN. CODE ANN. § 9.31(b)(5) (Vernon 2003) (self-defense not justified if defendant seeks

out victim to discuss differences while unlawfully carrying a weapon).

         Davis concedes that the evidence established that the assailants carried weapons

into the trailer. In addition to that evidence, Officer Kindell testified that the weapons

used at the scene were unlicensed and therefore illegal. Although Davis argues that

entry into the trailer was for purposes other than a discussion of differences, the

evidence establishes as a matter of law that the assailants sought interaction with

Andrade over the stolen money while the assailants were illegally carrying handguns.

See Williams, 35 S.W.3d at 786-87. As a matter of law, the assailants were not justified in

Davis v. State                                                                      Page 12
using force. Because the trial court did not err in refusing to instruct the jury on the

issue of self-defense, Davis’s seventh issue is overruled.

                                    False Testimony

         Davis's eighth issue alleges that the trial court erred in allowing Padrick to

"falsely testify" during trial in violation of Davis’s due process rights under the Sixth

and Fourteenth Amendments to the United States Constitution and article 1, sections 10

and 19 of the Texas Constitution.       At trial, Padrick testified on direct and cross-

examination that he did not watch the videotape of his statement before he testified.

After both sides had finished questioning Padrick and the jury had been excused for

lunch, the State told Davis’s counsel that Padrick had seen the videotape. He told the

defense that, although Padrick testified he did not see the tape, he was aware that

Padrick had indeed reviewed the tape with his lawyer. The State then said that it

would stipulate that Padrick had seen the tape or bring Padrick back on the stand.

Davis’s counsel thanked the State for the information but stated that neither action was

necessary.

         Although Davis now complains that Padrick lied under oath and that the State

failed to correct it, Davis failed to lodge a timely or specific objection to the allegedly

false testimony. A defendant must object to the State’s use of allegedly false evidence to

preserve the complaint for appeal. See Haliburton v. State, 80 S.W.3d 309, 315 (Tex.

App.—Fort Worth 2002, no pet.) (holding defendant must object to false testimony of

witnesses to preserve issue for appellate review); see also TEX. R. APP. P. 33.1. Davis




Davis v. State                                                                      Page 13
therefore failed to preserve this issue for appellate review. Haliburton, 80 S.W.3d at 315.

His eighth issue is overruled.

                                              Charge Error

         Davis’s arguments intertwined within his ninth,3 tenth,4 and eleventh5 and third6

supplemental issues contends that the trial court fundamentally erred in allowing the

State to submit a jury instruction on the theory of “party liability” when the indictment

did not include such an allegation.

         Davis acknowledges that the Court of Criminal Appeals has repeatedly held that

a trial court may charge the jury on the law of parties even though there is no such

allegation in the indictment. See, e.g., Pitts v. State, 569 S.W.2d 898 (Tex. Crim. App.

1978) (when evidence supports a charge on the law of parties, the court may charge on

the law of parties even though there is no such allegation in the indictment); Marable v.

State, 85 S.W.3d 287, 287 (Tex. Crim. App. 2002) (citing cases) (reiterating that "it is well-

settled that the law of parties need not be pled in the indictment.”). Nonetheless, he

urges us to overrule this line of cases. We lack authority to do so. Davis’s ninth, tenth,

eleventh, and third supplemental issues are overruled.


3      Davis’s ninth issue states that the trial court committed fundamental, egregious error when it
submitted the case on a theory of liability that was not alleged in the indictment.

4      Davis’s tenth issue states that the trial court violated his State constitutional right to due course of
law when it submitted the case on a theory of liability that was not alleged in the indictment.

5       Davis’s eleventh issue states that the trial court violated his federal constitutional right to due
process of law when it submitted the case on a theory of liability that was not alleged in the indictment.

6       Davis’s third supplemental issue argues that he suffered egregious harm when the trial court
erroneously instructed the jury that it could convict him of capital murder if it found beyond a reasonable
doubt that the shooting should have been anticipated as a result of the carrying out of the conspiracy
when it was not alleged in the indictment.

Davis v. State                                                                                         Page 14
                                        Motion for New Trial

         In his supplemental brief, Davis asserts that the court abused its discretion by

failing to grant his motion for new trial based upon newly discovered evidence. The

motion for new trial was brought on the grounds of newly discovered evidence and

ineffective assistance of counsel. The trial court held a hearing on the motion for new

trial and witnesses testified about the newly available evidence, as well as the

ineffective assistance of counsel claim. The motion was denied.

Newly Available Evidence

         In his first supplemental issue, Davis argues that new evidence, consisting of

testimony by co-defendant Mogilevich, was unavailable7 at the time of Davis’s trial and

demonstrates the lack of intent to kill at the time of the shooting. Willie’s trial took

place after Davis’s trial. By the time of Willie’s trial, Mogilevich had been apprehended

and provided a statement that said that he shot Andrade.                       Davis argues that if

Mogilevich had been available to testify, counsel would have called him to testify on the

issue of lack of intent to kill.

         To obtain a new trial upon "newly available" evidence, the following elements

are required:

                (1) the newly discovered evidence was unknown to the movant at
         the time of trial;
                (2) the movant's failure to discover the evidence was not due to his
         want of diligence;
                (3) the evidence is admissible and not merely cumulative,
         corroborative, collateral or impeaching; and


7        Mogilevich was unavailable to testify because he was a fugitive in Europe at the time of Davis’s
trial.

Davis v. State                                                                                   Page 15
                 (4) the evidence is probably true and would probably bring about
         a different result in another trial.

Keeter v. State, 74 S.W.3d 31, 36-37 (Tex. Crim. App. 2002); Ashcraft v. State, 918 S.W.2d

648, 653 (Tex. App.—Waco 1996, pet. ref'd) (citing Moore v. State, 882 S.W.2d 844, 849

(Tex. Crim. App. 1994)).

         The granting of a motion for new trial lies within the discretion of the trial court.

We do not substitute our judgment for that of the trial court but rather decide whether

the trial court's decision was arbitrary or unreasonable. Lewis v. State, 911 S.W.2d 1, 7

(Tex. Crim. App. 1995). Motions for new trial on grounds of newly discovered evidence

are not favored and are viewed with great caution. Drew v. State, 743 S.W.2d 207, 225

(Tex. Crim. App. 1987); Frank v. State, 183 S.W.3d 63, 71 (Tex. App.—Fort Worth 2005,

pet. ref'd); Ashcraft, 918 S.W.2d at 653.

         At the hearing, Mogilevich testified that after he broke into Andrade’s home,

Andrade shot him three times. He claimed that as a result of being shot in the head,

blood splattered on his face blurring his vision, and he then raised his gun and shot

Andrade in the chest. Davis argues that this testimony by Mogilevich reflects that he

did not intend to kill. However, Davis has failed to show that this evidence was

unknown and not cumulative. Delamora v. State, 128 S.W.3d 344 (Tex. App.—Austin

2004, pet. ref’d).

         During the trial, Padrick testified about Mogilevich’s condition. He stated that

“[Mogilevich] was shot in the head, shoulder and back and he had blood coming all

down his face.” Padrick also testified that he did not anticipate that a gun would be


Davis v. State                                                                         Page 16
used in the burglary and that he was specifically told that his job would be to rough

somebody up. Consequently, the substance of Mogilevich’s testimony was known and

merely cumulative of evidence already presented.            Furthermore, the testimony by

Mogilevich would not have brought about a different result. At the motion-for-new-

trial hearing, Dan Cogdell, Davis’s trial counsel, testified that he might not have called

Mogilevich to the stand even if his testimony was available. Mogilevich testified that as

Davis was giving him the guns for the robbery, Davis said, “do whatever it takes to get

your money back.”          Mogilevich also testified that the use of deadly force was

anticipated. Cogdell noted that this testimony would have destroyed the defensive

theory—that there was no intent to kill and Mogilevich and others were not sent there

with directions to kill.

         Finally, intent to commit the felony actually committed is not required under

section 7.02(b). TEX. PEN. CODE ANN. § 7.02(b); Hooper v. State, 214 S.W.3d 9, 14 (Tex.

Crim. App. 2007). Davis did not meet the requirements for obtaining a new trial based

on newly discovered evidence. Keeter, 74 S.W.3d at 36-37. Therefore, we find that the

trial court did not abuse its discretion in denying his motion for new trial. We overrule

Davis’s first supplemental issue.

Ineffective Assistance of Counsel

         Davis contends in his final issue that he received ineffective assistance of counsel.

He asserts that Cogdell was ineffective in at least 35 different respects, including areas

such as failing to object to improper opening and closing statements, extraneous




Davis v. State                                                                         Page 17
offenses, and irrelevant and hearsay evidence, and in failing to impeach witnesses on

perjured statements and plea deals.

         The standard in Strickland v. Washington applies to a claim of ineffective

assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984). To prevail, a defendant must first show that his counsel’s performance was

deficient. Id. at 687, 104 S.Ct. at 2064; see Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim.

App. 2002). Then it must be shown that this deficient performance prejudiced the

defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

         Appellate review of defense counsel’s representation is highly deferential and

presumes that counsel’s actions fell within the wide range of reasonable and

professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Tong v.

State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000).

         Here, Davis does not argue or supply authority as to why each item of evidence

was inadmissible. Davis merely concludes that the opening and closing arguments

were improper, the extraneous offense testimony was inadmissible and that some

testimony was irrelevant or hearsay evidence by simply listing the items. “When an

ineffective assistance claim alleges that counsel was deficient in failing to object to the

admission of evidence, the defendant must show, as part of his claim, that the evidence

was inadmissible.” Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002); see Flowers v.

State, 133 S.W.3d 852, 857 (Tex. App.—Beaumont 2004 no pet.).                Davis does not

demonstrate the evidence was inadmissible. Therefore, we cannot say counsel's failure

to object constituted ineffective assistance. This contention is overruled.

Davis v. State                                                                          Page 18
         Lastly, Davis argues that trial counsel was ineffective for failing to correct

Padrick’s perjured statements regarding reviewing his videotaped statement and for

not impeaching several witnesses on plea deals made with the State. At the hearing,

Cogdell stated that he found the testimony by Padrick to be far more favorable to Davis

than he originally expected. He stated that he did not want to risk recalling Padrick and

attacking his credibility because it would cause the jury to disbelieve the favorable

statements Padrick made toward Davis’s defensive theory of the case.             Cogdell’s

performance here cannot be held to be deficient because it was based on a sound trial

strategy. See Moore v. State, 983 S.W.2d 15, 21 (Tex. App.—Houston [14th Dist.] 1998, no

pet.). At the hearing, Cogdell also testified as to why he did not impeach witnesses on

deals made with the State. He stated that several witnesses gave favorable testimony

and therefore he did not want to attack their credibility and that the other witnesses

were immaterial and did not implicate Davis in this case. We agree. Once again,

Cogdell’s performance cannot be held to be deficient because it was based on a sound

trial strategy. Id. We cannot say that the evidence set out by Davis establishes that

counsel rendered ineffective assistance.     We overrule Davis’s second supplemental

issue.

                                       Conclusion

     Having overruled all of Davis’s issues, we affirm the judgment of the trial court.



                                                BILL VANCE
                                                Justice



Davis v. State                                                                      Page 19
Before Chief Justice Gray,
     Justice Vance, and
     Justice Reyna
     (“Chief Justice Gray does not join any part of the Court’s Opinion. He joins only
the judgment of the Court to the extent that it results in affirming the trial court’s
judgment of Chad Davis’s conviction and life sentence. A separate opinion will not
follow.”)
Affirmed
Opinion delivered and filed September 24, 2008
Publish
[CRPM]




Davis v. State                                                                  Page 20
