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
