Affirmed and Opinion filed November 19, 2013.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00307-CR

                   ROYERICK WASHINGTON, Appellant
                                       V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 174th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1247723

                                OPINION

      The State presented evidence that a gun battle erupted on the Eastex
Freeway and a bullet struck Sashe Gray in the heart, killing her. A jury convicted
appellant Royerick Washington of felony murder and assessed punishment at fifty
years‘ confinement. Appellant challenges his conviction and sentence in six issues
concerning the underlying felony for felony murder, the sufficiency of the
evidence, the effectiveness of counsel‘s representation, and alleged jury charge
error. We affirm.

                                 I.     BACKGROUND

       It was Christmas 2009, and Club Motions was packed with teenagers having
a good time. Dalicia Donatta went to the club with her friend, the decedent Sashe
Gray. Appellant also went to the club with his acquaintances, Deandre Gray (no
relation to Sashe), Deon Gibson, Charles Davis, Byron Edwards,1 and Allen
Prudhomme. Another teenager, Eric Perkins, was also at the club. Deandre had
―disagreements‖ with Perkins in the past about Perkins‘s girlfriend. The club
closed its doors at about 2:00 a.m. on December 26, and its patrons left.

       Donatta and Sashe headed home. Donatta drove Sashe‘s white Mitsubishi
Mirage while Sashe sat in the passenger seat. When Donatta was getting on the
southbound side of the Eastex Freeway via an elevated entrance ramp, she saw the
taillights from multiple cars ―swanging‖ on the freeway. According to Donatta,
―swanging‖ refers to cars that are switching or swerving from one lane to the next,
zigzagging across multiple lanes. She was accelerating on the freeway, and she got
close to the swanging cars, which were going a slower speed. Donatta saw three
swanging cars—a white one, red one, and black one. She did not recall seeing an
SUV.

       Meanwhile, appellant and his acquaintances also left the club. After a brief
stop, they entered the Eastex Freeway. Deandre was driving his mother‘s green
Isuzu Rodeo (an SUV). Gibson sat in the front passenger‘s seat; appellant sat in
the seat behind the driver‘s seat; Davis sat in the middle rear seat; Edwards sat to


       1
          Edwards‘s first name is spelled ―Byron‖ in the clerk‘s record and ―Byrom‖ in the
reporter‘s record.

                                            2
the right of Davis in the seat behind the front passenger‘s seat; and Prudhomme sat
in the rear-facing ―storage area‖ of the vehicle.

      Deandre, Gibson, Davis, and Prudhomme testified at appellant‘s trial. By
the time of trial, Deandre and Edwards had been charged with murder in this case.
Deandre and Gibson testified similarly that there were a number of cars swanging
on the freeway. The Isuzu was in the far right lane. The swanging cars were to the
left of them. No cars were to the right of them.

      Davis, who was sitting next to appellant, testified that he heard appellant
say, ―They going to make me do something to them,‖ and that appellant then
started shooting. Deandre testified that Gibson grabbed him and said, ―Duck,‖ as
the back window of the Isuzu was shot out. Deandre heard twenty to thirty gun
shots. The Isuzu was being hit with bullets, but some of the shots came from
behind him where appellant was sitting. Deandre did not actually see anyone
shoot; he just heard the shots being fired from behind him.              Gibson and
Prudhomme testified that they did not know whether gunshots were coming from
inside the Isuzu.

      Regarding the shooting, Donatta testified that the cars eventually stopped
swanging, and the black car was on her right side. Suddenly, Sashe said, ―They
shooting,‖ and, ―Duck.‖ Sashe grabbed Donatta‘s right hand to pull her down.
Donatta ducked down while she heard bullets going through her car and shattering
one of her windows. Donatta testified that the black car sped up and drove away
fast. She was paying attention to the black car because she thought shots came
from that car. As Donatta was exiting the freeway onto Beltway 8, Donatta asked
Sashe if she was all right. Sashe was slouched over and did not respond. Donatta
called 911 and drove to a nearby hospital. Sashe died before 3:00 a.m.



                                           3
      Meanwhile, the Isuzu exited the freeway one or two exits before Beltway 8.
There was some talking and arguing in the vehicle, and Gibson testified that he
heard appellant say, ―I shot.‖ They stopped at a gas station, and Davis testified
that he and others in the car grabbed shell casings from the car and threw them in a
trash bin. Deandre dropped off the passengers at their homes and then went home.

      Back on the freeway, Houston Police Department (HPD) Officer Christian
Dorton was dispatched to the Eastex Freeway where two cars were parked on the
side of the road with flat tires. Dorton observed multiple bullet holes in the two
cars, and it appeared the tires had been shot out. All of the bullet holes he
observed were on the passengers‘ sides of the cars. One of the cars was a red
Oldsmobile; the other was a white Lincoln. Dorton recovered a 9-millimeter pistol
from the Oldsmobile.

      Also on December 26, Dr. Pramod Gumpeni, an assistant medical examiner
with the Harris County Institute of Forensic Sciences, performed an autopsy of
Sashe‘s body. He identified a bullet entrance wound to Sashe‘s right back, and the
bullet came to rest in Sashe‘s left breast. The bullet had perforated Sashe‘s lung
and heart, causing her death. The trajectory of the bullet was from back to front,
from right to left, and very slightly upward.

      HPD Sergeants Roger Chappell and Bobby Roberts investigated this case for
the Homicide Division. Acting on Crime Stoppers tips, the sergeants were able to
identify some of the participants in the shooting. They met with Perkins, who they
learned had been driving a blue Buick LeSabre. Upon inspection, the Buick had
bullet damage to the passenger‘s side and no bullet damage to the driver‘s side.
Perkins gave Roberts a fired bullet.

      HPD Crime Scene Investigator April Palatino processed four vehicles in this
case: a green Isuzu Rodeo, a red or burgundy Oldsmobile Aurora, a white Lincoln
                                          4
LS, and a white Mitsubishi Mirage.2 The Oldsmobile, Lincoln, and Mitsubishi had
no bullet entrance damage on the driver‘s sides; all three of these cars had bullet
entrance damage to their passenger‘s sides. Only the Isuzu had bullet entrance
damage on the driver‘s side. Further, there was a bullet hole in the Isuzu on the
rear driver‘s side window frame area that caused the metal of the car to bow
outwards. Palatino testified that this ―exit strike‖ indicated a gun had been fired
from inside the Isuzu and was consistent with someone firing a gun from the rear
seat on the driver‘s side. She testified further that one of the entrance strikes to the
Isuzu had been caused from a gun being fired toward the rear left of the Isuzu. She
collected a bullet from the Isuzu and bullets or bullet fragments from the Lincoln
and Oldsmobile.

       Chappell testified about the angles of bullet entrances to the various
vehicles. He testified that the Mitsubishi, Oldsmobile, and Buick were shot from
behind and from the right (passenger‘s sides). So whoever was doing the shooting
was located behind and to the right of those vehicles. The Lincoln was shot from
more of a direct angle, from the right side. Finally, he testified that the angle of the
exit strike from the rear driver‘s side window of the Isuzu ―looks to be from back
to front.‖ Thus, ―the angle of fire there [is] consistent with where these other
vehicles were hit.‖

       Roberts interrogated appellant on December 31. A video recording of the
interrogation was played for the jury. Initially, appellant said he went to and left
Club Motions with his cousin. He denied shooting a gun or being shot at on
December 26.        After Roberts told appellant that appellant‘s acquaintances
confirmed appellant‘s presence in the Isuzu and suggested that the gas station
       2
         Chappell testified that the blue Buick LeSabre was not processed for evidence because
the vehicle had already changed hands since the shooting and some modifications had been made
to the vehicle. However, pictures of the bullet damage were admitted into evidence.

                                              5
appellant stopped at had video surveillance, appellant eventually admitted to being
in the Isuzu. Appellant identified his acquaintances who were also in the Isuzu,
but he said he was sitting in the rear seat behind Gibson on the passenger‘s side.
He said Edwards was sitting in the rear seat behind Deandre on the driver‘s side.
After further questioning, appellant said that Edwards had a gun and was shooting
it, but appellant maintained that he was sitting on the right side of the vehicle and
did not have a gun. Roberts told appellant that eventually charges would be filed
against him.

      Appellant was arrested on January 11, 2010, and Chappell and Roberts
interrogated him again. This interrogation was recorded and played for the jury.
Initially appellant denied having a gun and denied shooting.         But eventually
appellant admitted to having a gun and shooting it. He said, ―I shot in the air, over
everybody.‖ He said Edwards was shooting a .45-caliber gun, but appellant did
not know what kind of gun he was shooting. He also confirmed that he was sitting
in the seat behind Deandre, on the driver‘s side of the Isuzu. Appellant suggested
he could recover the gun for the sergeants, so they all went to appellant‘s
grandmother‘s house for appellant to find a phone number and make a call.
Roberts testified that appellant made a phone call to an unknown person, but
―apparently, the guy either didn‘t have the gun, didn‘t want to bring the gun, what
have you.‖ The sergeants did not recover appellant‘s gun.

      On cross-examination, Roberts testified that he interviewed Jarvis Hoskins,
who had admitted to riding in one of the other cars and doing some of the shooting.
But Roberts never obtained a gun from him and never saw his vehicle.

      Tammy Reed testified that she worked for the HPD Crime Laboratory in the
Firearms Section. Reed compared two bullets—the one that killed Sashe and the
one from Perkins—and determined that both bullets were fired from the same gun.

                                          6
The bullets were from the .38-caliber family consistent in weight and style with the
9-millimeter Luger. Reed compared the bullets with fired bullets from two 9-
millimeter Luger pistols recovered in this case. She was able to eliminate one of
the guns as firing the recovered bullets. The second pistol, which was the one
Horton recovered from the red Oldsmobile, could not be eliminated or identified as
firing the bullets. Further, Reed was able to determine that some of the other
recovered bullet fragments were not fired by either of the two weapons, thus
indicating there was an unrecovered weapon involved in the shooting.

       Appellant was indicted and convicted of felony murder predicated on the
felony of deadly conduct.      See Tex. Penal Code Ann. § 19.02(b)(3) (felony
murder); id. § 22.05(b)(2), (e) (felony deadly conduct). The jury charge authorized
conviction as a principal or as a party by assisting Edwards or Deandre.

       During the punishment phase, appellant‘s trial counsel called six
witnesses—appellant‘s family members—to testify about his good character.
Several of the witnesses also testified about how appellant‘s father had killed
appellant‘s mother and then killed himself when appellant was about nine years
old.   In particular, appellant‘s grandmother testified that appellant was in
counseling for two to three years.      Appellant‘s great aunt testified about the
murder-suicide: ―I think it had a great impact on Royerick. [Appellant and his
brothers] were counseled, but I don‘t think he ever let it go.‖ The jury assessed
punishment at fifty years‘ confinement.

       Appellant, assisted by appellate counsel, filed a motion for new trial alleging
ineffective assistance of counsel—in particular, ―counsel failed to procure needed
expert assistance and failed to conduct a full investigation to prepare for trial and
punishment.‖ Appellant attached an affidavit from appellant‘s great uncle, Robert
Dade, who had testified at the original punishment hearing. Among other things,

                                          7
Dade believed the murder-suicide ―affected [appellant] very, very deeply‖ and
―made him depressed and often afraid, sometimes so afraid that he did not always
think rationally.‖3

       At a hearing on the motion for new trial, appellant‘s trial counsel, Wilford
Anderson, testified that he never sought funds for an investigator, mental health
expert, or ballistics expert in appellant‘s case. Anderson testified that he discussed
the deaths of appellant‘s parents with appellant‘s family members ―to find out if
there may have been some effect or something that we could use in trial [but] there
was nothing that was brought up.‖ Anderson also testified that he did not think it
would have been useful to obtain psychological testimony about appellant, and he
did not believe he made a mistake to not have a health professional evaluate
appellant or present medical records to the jury.

       Some of appellant‘s medical records were admitted at the hearing, including
a ―case history‖ form completed by appellant‘s grandmother at the DePelchin
Children‘s Center when appellant was thirteen years old.                        There is a typed
statement in the medical records: ―Royerick is a child that is suffering from
depression.‖4

       At the hearing on the motion for new trial, Dade testified mostly about the
deaths of appellant‘s parents, noting that appellant had trouble sleeping after the
incident and had ―a lot of nervousness issues.‖                     Appellant testified that he
continued to have trouble sleeping and has nightmares. When the State asked
appellant if he shot the gun due to his bad childhood experiences, appellant

       3
          Appellant also filed a motion for the appointment of a mental health expert to determine
the possible impact that the murder-suicide of appellant‘s parents had on appellant. Appellant
identified a specific ―competent and qualified specialist in the field of psychology‖ who would
charge $3,000 to diagnose appellant. The trial court granted this motion.
       4
           It is not clear who typed this statement or whether this was a clinical diagnosis.

                                                   8
testified, ―I shot the gun out of fear, like anybody else would do if you were being
shot at.‖ He testified that he was not thinking about his parents when he pulled the
trigger.

       Appellant did not present any expert testimony at the hearing or by affidavit.
The trial court denied the motion for new trial, and appellant appealed.

               II.     DEADLY CONDUCT AS THE UNDERLYING FELONY

       In his fifth issue, appellant contends his conviction and sentence are void
because the underlying felony of deadly conduct is a lesser included offense of
manslaughter. See Johnson v. State, 4 S.W.3d 254, 258 (Tex. Crim. App. 1999)
(―[A] conviction for felony murder . . . will not lie when the underlying felony is
manslaughter or a lesser included offense of manslaughter.‖).

       This court has not addressed this issue, but it appears ―well established under
Texas law that deadly conduct can be the underlying felony for felony murder.‖
Miles v. State, 259 S.W.3d 240, 247 (Tex. App.—Texarkana 2008, pet. ref‘d);
accord Yandell v. State, 46 S.W.3d 357, 361 (Tex. App.—Austin 2001, pet. ref‘d);
see Rodriguez v. State, 953 S.W.2d 342, 354 (Tex. App.—Austin 1997, pet. ref‘d),
cited with approval in Lawson v. State, 64 S.W.3d 396, 401 (Tex. Crim. App.
2001) (Cochran, J., concurring).5

       We agree with Yandell, which held that felony deadly conduct was not a
lesser included offense of manslaughter and could serve as the underlying felony in
a felony murder prosecution. 46 S.W.3d at 361. The offense of manslaughter

       5
          See also Aviles v. State, No. 01-09-01017-CR, 2011 WL 346436, at *5 (Tex. App.—
Houston [1st Dist.] Feb. 3, 2011, pet. ref‘d) (mem. op., not designated for publication); Price v.
State, No. 04-04-00886-CR, 2006 WL 927282, at *2 (Tex. App.—San Antonio Apr. 12, 2006,
pet. ref‘d) (mem. op., not designated for publication); Arellano v. State, No. 05-02-01200-CR,
2003 WL 22480926, at *1 (Tex. App.—Dallas Nov. 4, 2003, no pet.) (mem. op., not designated
for publication).

                                                9
would have required proof that appellant recklessly caused the death of an
individual, but deadly conduct required proof that appellant knowingly discharged
a firearm at a vehicle and was reckless as to whether the vehicle was occupied.
Compare Tex. Penal Code Ann. § 19.04(a) (manslaughter), with id. § 22.05(b)(2)
(felony murder). None of the methods for establishing a lesser included offense
apply in this case, as outlined in Article 37.09 of the Texas Code of Criminal
Procedure.6 In particular, the offense of deadly conduct required proof of more
facts (discharging a firearm at a vehicle) with a greater mental state (knowingly)
compared to the offense of manslaughter. See Yandell, 46 S.W.3d at 361.

       Appellant‘s fifth issue is overruled.

                          III.    SUFFICIENCY OF THE EVIDENCE

       In his fourth issue, appellant contends the evidence is insufficient to convict
him under Jackson v. Virginia, 443 U.S. 307 (1979), either as a principal actor or
as a party. In particular, appellant contends the State failed to prove that appellant
―was linked to the fatal shot,‖ and there is ―no way to ever know how or who fired
the fatal bullet.‖      Regarding party liability, appellant argues that there is no
evidence appellant acted at the behest of another or that he fired first.

       ―In determining whether the evidence is legally sufficient to support a
conviction, a reviewing court must consider all of the evidence in the light most
favorable to the verdict and determine whether, based on that evidence and
reasonable inferences therefrom, a rational fact finder could have found the

       6
          See Tex. Code Crim. Proc. Ann. art. 37.09 (―An offense is a lesser included offense if:
(1) it is established by proof of the same or less than all facts required to establish the
commission of the offense charged; (2) it differs from the offense charged only in the respect that
a less serious injury or risk of injury to the same person, property, or public interest suffices to
establish its commission; (3) it differs from the offense charged only in the respect that a less
culpable mental state suffices to establish its commission; or (4) it consists of an attempt to
commit the offense charged or an otherwise included offense.‖).

                                                10
essential elements of the crime beyond a reasonable doubt.‖ Winfrey v. State, 393
S.W.3d 763, 768 (Tex. Crim. App. 2013) (quotations omitted). We ―defer to the
jury‘s credibility and weight determinations because the jury is the sole judge of
the witnesses‘ credibility and the weight to be given their testimony.‖          Id.
(quotations omitted). ―[I]t is unnecessary for every fact to point directly and
independently to the guilt of the accused; it is enough if the finding of guilt is
warranted by the cumulative force of all the incriminating evidence.‖            Id.
(quotations omitted).

      The State was required to prove that appellant committed or attempted to
commit the felony of deadly conduct, and in the course of and in furtherance of the
commission or attempt, or in the immediate flight from the commission or attempt,
appellant committed or attempted to commit an act clearly dangerous to human life
that caused the death of Sashe Gray. See Tex. Penal Code Ann. § 19.03(a).
Appellant does not contest the sufficiency of the evidence for the underlying
felony of deadly conduct, or that he committed an act clearly dangerous to human
life. He contends there is insufficient evidence that he caused Sashe‘s death.

      We conclude that the State adequately linked appellant to the fatal shot to
uphold his conviction as a principal. The evidence recited above is sufficient, but
we note the following in particular:

             Donatta testified that she was driving near the three swanging cars at
             the time of the shooting;
             Appellant‘s acquaintances in the Isuzu testified that all of the other
             vehicles were in the lanes to their left;
             Sashe‘s Mitsubishi and the Oldsmobile, Buick, and Lincoln all had
             bullet entrance damage to the passengers‘ sides, and no entrance
             damage to the drivers‘ sides, which is consistent with appellant‘s
             firing a gun from the Isuzu;


                                         11
               The bullet exit strike on the rear driver‘s side window frame of the
               Isuzu is consistent with appellant‘s firing a gun in the direction of the
               other vehicles;
               Appellant confessed to shooting his gun at the time Sashe was shot,
               and the jury could have disbelieved his self-serving statement that he
               was merely shooting in the air;
               A fact finder could have inferred that appellant repeatedly lied to the
               police and disposed of his gun.

The cumulative force of the evidence points to appellant‘s guilt as a principal, and
a rational fact finder could have found beyond a reasonable doubt that appellant
caused Sashe‘s death.7

       Appellant‘s fourth issue is overruled.

                                IV.    JURY CHARGE ERROR

       In his sixth issue, appellant contends it was ―fundamental error to include a
party definition when there was no possible way to sustain a party instruction
under these facts.‖ We disagree and hold that any error was harmless.

       A trial court errs in submitting a party instruction when there is no evidence
that would support a jury‘s verdict under that theory. See Ladd v. State, 3 S.W.3d
547, 564 (Tex. Crim. App. 1999). ―A person is a criminally responsible party to an
offense ‗if the offense is committed by his own conduct, by the conduct of another
for which he is criminally responsible, or by both.‘‖ Gross v. State, 380 S.W.3d
181, 186 (Tex. Crim. App. 2012) (quoting Tex. Penal Code Ann. § 7.01). ―A
person is criminally responsible for the conduct of another if, acting ‗with intent to
promote or assist the commission of the offense, he solicits, encourages, directs,

       7
         Because there is sufficient evidence of guilt as a principal, we need not address guilt as
a party. See Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992); Davis v. State, 195
S.W.3d 311, 319 n.4 (Tex. App.—Houston [14th Dist.] 2006, no pet.); see also Tex. R. App. P.
47.1.

                                                12
aids, or attempts to aid the other person to commit the offense.‘‖ Id. (quoting Tex.
Penal Code Ann. § 7.02).

      ―To determine whether an individual is a party to an offense, the reviewing
court may look to events before, during, and after the commission of the offense.‖
Id. (quotations omitted). ―There must be sufficient evidence of an understanding
and common design to commit the offense.‖ Id. There must be some evidence
that the individual anticipated the offense or encouraged the commission of the
offense by words or agreement made prior to or contemporaneous with the act. Id.
at 188.

      There was some evidence that appellant could be held criminally responsible
for the conduct of another. Before the commission of the offense, he said, ―They
going to make me do something to them,‖ and then appellant shot a gun at the
other cars. Thus, there is evidence that appellant anticipated the offense and
encouraged the commission of the offense prior to or contemporaneous with the
offense.   He could be held criminally responsible for the conduct, if any, of
Deandre or Edwards—the two of appellant‘s acquaintances who were named in the
party liability charge.

      Regardless, even if it was error to submit a party instruction concerning
Deandre or Edwards, appellant did not object, and we may not reverse his
conviction unless we find egregious harm. See Allen v. State, 253 S.W.3d 260, 264
(Tex. Crim. App. 2008) (citing Almanza v. State, 686 S.W.2d 157 (Tex. Crim.
App. 1984)). To determine egregious harm, we must consider (1) the entire jury
charge, (2) the state of the evidence, including contested issues and the weight of
the probative evidence, (3) arguments of the parties, and (4) any other relevant
information revealed by the record of the trial as a whole. Id. ―Jury charge error is



                                         13
egregiously harmful if it affects the very basis of the case, deprives the defendant
of a valuable right, or vitally affects a defensive theory.‖ Id.

      In addition to authorizing conviction as a party, the charge authorized
conviction as a principal, and the weight of the probative evidence supports
appellant‘s conviction as a principal. Although the State suggested in closing
argument that the jury could find appellant guilty if Edwards fired the fatal shot,
the State did not mention Deandre and focused on appellant‘s guilt as the primary
actor. Under these circumstances, ―‗[w]here [as in the instant case] the evidence
clearly supports a defendant‘s guilt as a principal actor, any error of the trial court
in charging on the law of parties is harmless.‘‖         Ladd, 3 S.W.3d at 564–65
(alterations in original) (quoting Black v. State, 723 S.W.2d 674, 675 (Tex. Crim.
App. 1986)).     This is because if there was ―no evidence tending to show
appellant‘s guilt as a party, the jury almost certainly did not rely upon the parties
instruction in arriving at its verdict, but rather based the verdict on the evidence
tending to show appellant‘s guilt as a principal actor.‖ Id. at 565.

      Appellant‘s sixth issue is overruled.

                          V.     INEFFECTIVE ASSISTANCE

      In his first three issues, appellant contends trial counsel, Wilford Anderson,
rendered ineffective assistance based on his alleged failure to investigate and
present certain evidence and objections during trial, request three jury instructions,
and investigate for punishment regarding appellant‘s mental health. We address
each contention after reviewing the standard for proving ineffective assistance.

A.    Standard of Review and Principles of Law

      To prevail on an ineffective assistance claim, an appellant must show that
(1) counsel‘s performance was deficient by falling below an objective standard of

                                           14
reasonableness; and (2) counsel‘s deficiency caused the appellant prejudice—there
is a probability sufficient to undermine confidence in the outcome that but for
counsel‘s errors, the result of the proceeding would have been different. Strickland
v. Washington, 466 U.S. 668, 687–88, 694 (1984); Perez v. State, 310 S.W.3d 890,
892–93 (Tex. Crim. App. 2010). An appellant must satisfy both prongs by a
preponderance of the evidence; failure to demonstrate either deficient performance
or prejudice will defeat a claim of ineffectiveness. Perez, 310 S.W.3d at 893.
When one of the prongs is dispositive, we need address only that prong on appeal.
See Seamster v. State, 344 S.W.3d 592, 594 (Tex. App.—Houston [14th Dist.]
2011, pet. ref‘d).

      Although an appellant may claim ineffective assistance of counsel for the
first time on direct appeal, the record in such a case often will not be sufficient to
overcome the presumption that counsel‘s conduct was reasonable and professional.
Cannon v. State, 252 S.W.3d 342, 349 (Tex. Crim. App. 2008). In such a case, we
will not find deficient performance unless counsel‘s conduct is so outrageous that
no competent attorney would have engaged in it. Goodspeed v. State, 187 S.W.3d
390, 392 (Tex. Crim. App. 2005).

      When a defendant asserts ineffective assistance of counsel in a motion for
new trial, we review the trial court‘s denial of the motion for an abuse of
discretion. My Thie Tieu v. State, 299 S.W.3d 216, 223 (Tex. App.—Houston
[14th Dist.] 2009, pet. ref‘d). We review de novo the trial court‘s decision on the
prejudice prong while giving deference to the trial court‘s implied resolution of
underlying factual determinations. Seamster, 344 S.W.3d at 594–95.

B.    Failure to Investigate, Introduce Evidence, and Object

      In his second issue, appellant contends Anderson ―failed to investigate and
prepare a proper guilt innocence defense.‖ In particular, appellant complains that
                                         15
Anderson did not retain the services of an investigator, testimonial expert, or
consulting expert; he did not ―challenge the State‘s witnesses [sic] qualifications
under a 702/703 hearing‖; he did not ―conduct any investigation of his own‖; and
he did not ―effectively cross the accomplices whom the State brought forward.‖

      Because appellant failed to present any guilt-innocence mitigation evidence
with the motion for new trial or at the hearing, appellant has failed to demonstrate
how any of the alleged ―failure to investigate‖ deficiencies prejudiced his defense.
To determine whether appellant was prejudiced, we must ―compare the evidence
presented by the State with the ‗evidence the jury did not hear due to trial counsel‘s
failure to investigate.‘‖ Perez, 310 S.W.3d at 896 (quoting Butler v. State, 716
S.W.2d 48, 56 (Tex. Crim. App. 1986)). We are unable to do so because appellant
did not show what evidence a proper investigation would have revealed, nor what
benefit could have been obtained from an expert. See Ex parte McFarland, 163
S.W.3d 743, 755 (Tex. Crim. App. 2005) (no prejudice for failure to investigate a
witness when there was no showing or suggestion that the witness would have told
anyone of the contradictory version of events before trial); King v. State, 649
S.W.2d 42, 44 (Tex. Crim. App. 1983) (―Counsel‘s failure to call witnesses at the
guilt-innocence and punishment stages is irrelevant absent a showing that such
witnesses were available and appellant would benefit from their testimony.‖);
Brown v. State, 334 S.W.3d 789, 803 (Tex. App.—Tyler 2010, pet. ref‘d) (―[T]he
failure to request the appointment of an expert witness is not ineffective assistance
in the absence of a showing that the expert would have testified in a manner that
benefitted the defendant.‖); Cate v. State, 124 S.W.3d 922, 927 (Tex. App.—
Amarillo 2004, pet. ref‘d) (same).

      Appellant has also failed to demonstrate ineffective assistance regarding
counsel‘s failure to object to the State‘s expert witnesses‘ qualifications because he

                                         16
has not shown that the trial court would have abused its discretion by overruling
counsel‘s objection. See, e.g., Alexander v. State, 282 S.W.3d 701, 705, 710 (Tex.
App.—Houston [14th Dist.] 2009, pet. ref‘d). Similarly, appellant has failed to
demonstrate deficient performance regarding counsel‘s cross-examinations of any
accomplice witnesses when he has not shown that counsel‘s conduct, which
actually included cross-examining the alleged accomplices, lacked a sound trial
strategy. See, e.g., Ex parte McFarland, 163 S.W.3d at 756; Dannhaus v. State,
928 S.W.2d 81, 88 (Tex. App.—Houston [14th Dist.] 1996, pet. ref‘d).

      Appellant‘s second issue is overruled.

C.    Failure to Request Jury Instructions

      In his third issue, appellant contends counsel was ineffective for failing to
request jury instructions on the issues of accident, manslaughter, and accomplice
witness.

      To demonstrate deficient performance based on the failure to request a jury
instruction, an appellant must show that he was entitled to the instruction. See
Fuentes v. State, 991 S.W.2d 267, 272 (Tex. Crim. App. 1999) (lesser included).
When an appellant has nothing to lose by requesting a defensive instruction and it
would have been error for the trial court to refuse the instruction, we may find
deficient performance even without counsel‘s explanation for failing to request the
instruction. See Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992)
(defense of necessity); Ex parte Zepeda, 819 S.W.2d 874, 877 (Tex. Crim. App.
1991) (accomplice witness).




                                        17
      We address each of appellant‘s contentions in turn.

      1.      Accident

      Appellant has failed to show that he was entitled to an ―accident‖ instruction
because he had no ―accident‖ defense. See, e.g., Alford v. State, 866 S.W.2d 619,
622–23 (Tex. Crim. App. 1993). To the extent he claims that counsel should have
requested an instruction under Section 6.01(a) of the Penal Code regarding the
voluntariness of his conduct, see Tex. Penal Code Ann. § 6.01(a), he would not
have been entitled to the instruction because there is no evidence that the gun
discharged as a result of an involuntary bodily movement. See Adanandus v. State,
866 S.W.2d 210, 230 (Tex. Crim. App. 1993). Evidence that one of appellant‘s
shots hit the window frame of his own vehicle, or that the bullet that struck Sashe
may have ricocheted, does not indicate that appellant involuntarily discharged the
gun. Compare Brown v. State, 955 S.W.2d 276, 279 (Tex. Crim. App. 1997) (jury
instruction required when the defendant testified a handgun in his possession
accidentally discharged after he was bumped from behind), with George v. State,
681 S.W.2d 43, 44, 46–47 (Tex. Crim. App. 1984) (no jury instruction required
when the defendant cocked the gun and held it to the victim‘s face although the
defendant testified the hammer ―slipped off [his] thumb‖ and he did not intend to
shoot). Conduct is not involuntary ―merely because an accused does not intend the
result of his conduct.‖ George, 681 S.W.2d at 45.

      Counsel was not ineffective for failing to request a jury instruction on
―accident.‖

      2.      Manslaughter

      ―[I]t is a reasonable trial strategy to decide to not request a charge on a lesser
included offense.‖ Davis v. State, 930 S.W.2d 765, 768 (Tex. App.—Houston [1st


                                          18
Dist.] 1996, pet. ref‘d); see also Ex parte White, 160 S.W.3d 46, 55 (Tex. Crim.
App. 2004) (no ineffective assistance for failing to request a lesser included
offense instruction on manslaughter when the defendant preferred to adopt an all-
or-nothing trial strategy). Assuming without deciding that manslaughter could
ever be a lesser included offense of felony murder,8 the record contains no
explanation for trial counsel‘s failure to request a manslaughter instruction. The
decision to not request a lesser included could have been strategic; thus, appellant
has failed to show deficient performance. See, e.g., Wingo v. State, 143 S.W.3d
178, 192 (Tex. App.—San Antonio 2004) (no deficient performance for failing to
request an applicable lesser included instruction), aff’d, 189 S.W.3d 270 (Tex.
Crim. App. 2006).

       3.     Accomplice Witness

       We do not address whether counsel‘s performance was deficient because
appellant suffered no prejudice.9 When counsel fails to request an accomplice
witness instruction under Article 38.14 of the Texas Code of Criminal Procedure, 10
the question of prejudice will ―generally turn on whether there was a substantial
amount of non-accomplice evidence and whether the record reveals any rational


       8
         We do not hold that manslaughter is a lesser included offense of felony murder. See
Driver v. State, 358 S.W.3d 270, 279 (Tex. App.—Houston [1st Dist.] 2011, pet. ref‘d) (holding
that ―manslaughter is not a lesser included offense of felony murder‖; concluding that
Kuykendall v. State, 609 S.W.2d 791 (Tex. Crim. App. 1980), was overruled sub silentio by
Lomax v. State, 233 S.W.3d 302 (Tex. Crim. App. 2007)).
       9
         Regarding deficient performance in this context, see, e.g., Zamora v. State, No. PD-
1395-12, — S.W.3d —, 2013 WL 5729980, at *8 (Tex. Crim. App. Oct. 23, 2013) (―The
accomplice-witness rule cannot be reasonably categorized as a defensive issue that a defense
attorney might forego as a matter of trial strategy.‖).
       10
          See Tex. Code Crim. Proc. Ann. art. 38.14 (―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.‖).

                                              19
basis on which the jury could have doubted or disregarded that evidence.‖ Davis v.
State, 278 S.W.3d 346, 353 (Tex. Crim. App. 2009).11

       To measure the non-accomplice testimony, we must first identify which
witnesses were accomplice witnesses. Appellant contends that all of the witnesses
in the Isuzu were accomplices; the State contends none of them were. We disagree
with both assertions.

       Deandre was an accomplice witness as a matter of law because he had been
indicted for the murder of Sashe. See Ex parte Zepeda, 819 S.W.2d 874, 876 (Tex.
Crim. App. 1991). And for the purpose of addressing prejudice, we will also
assume that the record contains some evidence that Prudhomme was an accomplice
witness, so appellant would have been entitled to a jury determination of that
factual issue.12 See Cocke v. State, 201 S.W.3d 744, 748 (Tex. Crim. App. 2006)
(explaining that a jury must determine if a witness is an accomplice as a matter of
fact when the evidence is conflicting or unclear). However, appellant has failed to
identify, and we have not found in the record, any evidence that Gibson and Davis
were accomplice witnesses, so appellant would not have been entitled to a jury
determination for those witnesses. See id. (an accomplice must participate and act
with the requisite culpable mental state; mere presence and failure to disclose
knowledge of a crime do not make an individual an accomplice). Therefore, we
will consider Gibson‘s and Davis‘s testimony as non-accomplice evidence.

       Excluding Deandre‘s and Prudhomme‘s testimony, the evidence of
appellant‘s guilt is substantial. Davis testified that he heard appellant say, ―They

       11
          This test is distinguished from a seemingly laxer sufficiency standard: ―whether the
non-accomplice evidence sufficed to connect the defendant to the crime charged or even whether
such evidence would itself support the verdict of guilt.‖ Davis, 278 S.W.3d at 353.
       12
         Appellant claimed in his statement to police that Prudhomme handed Edwards a gun
immediately before Edwards and appellant began shooting.

                                             20
going to make me do something to them,‖ and then appellant started shooting.
Appellant confessed to shooting his gun, and Gibson testified that he heard
appellant say, ―I shot,‖ after the shooting. Further, appellant disposed of his gun
after the shooting and repeatedly lied to the police about shooting his gun and
where he was sitting in the Isuzu. Both Gibson and Davis testified that the Isuzu
was in the far right lane at the time of the shooting, thus supporting Sergeant
Chappell‘s and Investigator Palatino‘s testimony concerning the relative locations
of the vehicles. The record reveals no substantial rational basis for doubting or
disregarding the non-accomplice evidence.

      We conclude there is not a probability sufficient to undermine our
confidence in the outcome that but for counsel‘s errors, if any, the result of the
proceeding would have been different.

      Appellant‘s third issue is overruled.

D.    Failure to Investigate for Punishment

      In his first issue, appellant contends the trial court abused its discretion by
denying his motion for new trial because counsel ―conducted no investigation for
punishment what so ever.‖ We hold that appellant has failed to demonstrate
prejudice.

      In determining whether an appellant has been prejudiced by counsel‘s failure
to investigate and discover mitigating evidence for punishment, ―we reweigh the
evidence in aggravation against the totality of available mitigating evidence.‖
Wiggins v. State, 539 U.S. 510, 534 (2003); accord Ex parte Martinez, 195 S.W.3d
713, 730 (Tex. Crim. App. 2006). However, most of the evidence presented at the
hearing on appellant‘s motion for new trial was duplicative of evidence presented
during the original punishment hearing. The jury had already heard about the


                                         21
deaths of appellant‘s parents and that despite receiving counseling, appellant never
―let it go.‖ The truly new evidence—that appellant was depressed six years before
he shot Sashe and that he had trouble sleeping and ―nervousness issues‖ in the
past—likely would not have had an effect on appellant‘s punishment. See Ex parte
Martinez, 195 S.W.3d at 731 (―[S]ince the jury was privy to some of the severe
abuse applicant suffered during his childhood, there is not a reasonable probability
that the unadmitted alleged mitigating evidence would have tipped the scale in
applicant‘s favor,‖ despite the omitted mitigating evidence about his abuse being
―strong.‖). Appellant did not show that the new mitigating evidence ―differ[s] in a
substantial way—in strength and subject matter—from the evidence actually
presented at sentencing.‖ Id. (citing Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir.
2005)).

      Accordingly, appellant failed to prove ineffective assistance by a
preponderance of the evidence, and the trial court did not abuse its discretion by
denying appellant‘s motion for new trial.

      Appellant‘s first issue is overruled.

                                    CONCLUSION

      Having overruled all of appellant‘s issues, we affirm the trial court‘s
judgment.


                                       /s/     Sharon McCally
                                               Justice


Panel consists of Justices McCally, Busby, and Wise.
Publish — Tex. R. App. P. 47.2(b).



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