                                   Fourth Court of Appeals
                                           San Antonio, Texas
                                      MEMORANDUM OPINION

                                  Nos. 04-17-00366-CR & 04-17-00367-CR 1

                                             Roger Trudell DAVIS,
                                                   Appellant

                                                          v.

                                              The STATE of Texas,
                                                    Appellee

                        From the 187th Judicial District Court, Bexar County, Texas
                              Trial Court Nos. 2015CR3461 & 2015CR6145
                                 Honorable Steve Hilbig, Judge Presiding

Opinion by:         Luz Elena D. Chapa, Justice

Sitting:            Rebeca C. Martinez, Justice
                    Patricia O. Alvarez, Justice
                    Luz Elena D. Chapa, Justice

Delivered and Filed: August 8, 2018

AFFIRMED

           Roger Davis appeals his convictions for aggravated assault with a deadly weapon. He raises

three issues on appeal: (1) there is legally insufficient evidence that he was the perpetrator of the

offenses alleged in the indictments; (2) his trial counsel rendered ineffective assistance by

inadequately investigating the case and not requesting a continuance to review evidence the State

untimely disclosed to the defense; and (3) the trial court erred by not sua sponte granting a

continuance. We affirm the trial court’s judgments.


1
    These appeals were consolidated for purposes of briefing and argument.
                                                                             04-17-00366-CR & 04-17-00367-CR


                                                BACKGROUND

        On November 3, 2014, Rainn Guerrero and Jonathan Canady were asleep at Guerrero’s

house when a man outside started knocking on the window to the bedroom. After Guerrero and

Canady awoke, Guerrero asked the man outside to identify himself. According to Guerrero, the

man responded, “OJ,” which is the nickname of Guerrero’s ex-boyfriend, Davis. The man tried to

crawl through the window. Canady shoved a dresser against the man, who then pulled out a gun

and started shooting into the bedroom. Guerrero was shot by a bullet that passed through both of

her thighs. Canady was shot by a bullet that grazed the left side of his face.

        Davis was thereafter charged by two indictments with aggravated assault with a deadly

weapon, and he pled not guilty. The case proceeded to a single jury trial on both indictments, and

the jury returned a guilty verdict as to both charges. The trial court assessed punishment at forty-

three years in prison for each conviction and imposed the sentence. Davis timely appealed the

judgments of conviction.

                                            LEGAL SUFFICIENCY

        Davis argues the evidence is legally insufficient to prove he committed aggravated assault

with a deadly weapon. In his brief, Davis does not argue there is insufficient evidence that someone

assaulted Guerrero and Canady with a deadly weapon. He argues only that there is legally

insufficient evidence identifying him as the shooter. 2 We therefore consider whether there is

legally sufficient evidence showing Davis was the shooter.

        In reviewing the legal sufficiency of the evidence, we ask whether “any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979); accord Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App.


2
 To the extent Davis intended to challenge the other elements of the offenses, we hold there is legally sufficient
evidence of those elements.

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2009). We review the evidence “in the light most favorable to the verdict.” Merritt v. State, 368

S.W.3d 516, 525 (Tex. Crim. App. 2012). “Our role on appeal is restricted to guarding against the

rare occurrence when a factfinder does not act rationally,” and we must “defer to the responsibility

of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010) (internal citations omitted).

       “Identification of the defendant as the person who committed the offense charged is part

of the State’s burden of proof beyond a reasonable doubt.” Wiggins v. State, 255 S.W.3d 766, 771

(Tex. App.—Texarkana 2008, no pet.). “When a defendant contests the identity element of the

offense, we are mindful that identity may be proven by direct evidence, circumstantial evidence,

or even inferences.” Id. The determination of what weight to give testimonial evidence regarding

identification is within the sole province of the jury, as it turns on an evaluation of credibility and

demeanor. Davis v. State, 177 S.W.3d 355, 359 (Tex. App.—Houston [1st Dist.] 2005, no pet.).

       During her testimony, Guerrero identified Davis as the man who shot her and Canady.

Guerrero testified Davis is her ex-boyfriend, he has a southern accent, and she knows him by “OJ,”

a childhood nickname he received from his family. She explained she had known Davis for several

months, had a romantic relationship with him, and they had lived together, but Davis had

physically abused her, accused her of cheating, and further threatened her. Guerrero testified she

and Canady woke up to someone knocking on the window and calling her name. When she asked

who it was, the man responded “OJ” and said to her, “This is how you’re going to do me? This is

how it’s going to be?” Guerrero testified she had no doubt who the man was because of his southern

accent, although she did not see his face. Guerrero further explained the man tried to enter her

home through the window, Canady threw a dresser on him, and the man pulled out a gun and



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started shooting. Guerrero testified Davis drove a silver Lincoln Town Car, and Canady testified

he saw the shooter run toward a silver Lincoln.

       Viewing this evidence in a light most favorable to the verdict, we hold a jury rationally

could have found Davis was the person who committed the offense. See id. Although Davis notes

there were other witnesses who testified Davis was elsewhere during the shooting and eye witness

testimony can sometimes be unreliable, the determination of what weight to give testimonial

evidence is within the sole province of the jury. See id. We conclude there is legally sufficient

evidence that Davis committed the offenses alleged in the indictments.

                             INEFFECTIVE ASSISTANCE OF COUNSEL

       Davis argues he received ineffective assistance of counsel. Sixth Amendment ineffective

assistance of counsel claims are governed by Strickland v. Washington’s two-prong test under

which we determine (1) whether trial counsel’s representation was constitutionally deficient, and

(2) whether the deficient performance prejudiced the defense. 466 U.S. 668 (1984); accord Russell

v. State, 90 S.W.3d 865, 875 (Tex. App.—San Antonio 2002, pet. ref’d). To satisfy Strickland’s

first prong on direct appeal, the record must demonstrate: (1) trial counsel’s deficient performance

of some act or failure to perform some act, and (2) trial counsel had no reasonable trial strategy

for the act or omission. See Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). “Any

allegation of ineffectiveness must be firmly founded in the record.” Russell, 90 S.W.3d at 875.

       “There is a strong presumption that counsel’s conduct fell within the wide range of

reasonable professional assistance.” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999). Generally, trial counsel should be afforded an opportunity to explain “his actions before

being denounced as ineffective.” Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012).

When trial counsel is not given that opportunity, we will not find trial counsel’s performance

deficient unless the challenged conduct was “so outrageous that no competent attorney would have
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engaged in it.” Id. Thus, “[u]nder normal circumstances, the record on direct appeal will not be

sufficient to show that counsel’s representation was so deficient and so lacking in tactical or

strategic decisionmaking as to overcome the presumption that counsel’s conduct was reasonable

and professional.” Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

       Davis contends his trial counsel’s performance was deficient because trial counsel

inadequately investigated the case, failed to follow up on pre-trial motions requesting the

disclosure of evidence, and failed to request a continuance after receiving untimely disclosed

evidence that might have been favorable to the defense. Specifically, Davis argues trial counsel

should have requested more time to review several hours of Davis’s recorded jail conversations.

Other than Davis’s assertion that his trial counsel did not review the recorded jail conversations,

Davis does not explain how his trial counsel’s investigation was inadequate. Davis’s trial counsel

was not afforded an opportunity to explain his actions. The record before us is silent as to why trial

counsel did not follow up on Davis’s pre-trial discovery motions or request a continuance after the

recordings of the jail calls were disclosed. The record also does not show any favorable evidence

was contained on the recordings. On the record before us, we hold Davis has failed to overcome

the strong presumption that his trial counsel’s conduct fell within the wide range of reasonable

professional assistance. See Thompson, 9 S.W.3d at 813. We therefore cannot say Davis received

ineffective assistance of counsel.

                            FAILURE TO TIMELY DISCLOSE EVIDENCE

       Davis also argues the State wrongfully withheld evidence in violation of Brady v.

Maryland, 373 U.S. 83 (1963), and the trial court should have sua sponte granted him a

continuance to protect his due process rights. According to Davis, the State disclosed the recorded

jail calls the day of trial and did not give him sufficient time to review the evidence and adequately

prepare. “[W]hen previously withheld evidence is disclosed at trial, the defendant has an
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opportunity to request a continuance.” Williams v. State, 995 S.W.2d 754, 762 (Tex. App.—San

Antonio 1999, no pet.). “The failure to request a continuance waives any Brady violation, . . . .”

Id. Davis notes the State disclosed the evidence the day of, but before trial, and he did not request

a continuance. A trial court has no duty to sua sponte grant a continuance when the record suggests

the defense was unaware of evidence. See McCloud v. State, 494 S.W.2d 888, 891 (Tex. Crim.

App. 1973). And, as previously noted, the record does not show the recordings of the jail calls

contained any evidence favorable to Davis. We overrule Davis’s issue regarding the State’s alleged

failure to timely disclose evidence and the trial court’s failure to sua sponte grant a continuance to

review the recordings. See Williams, 995 S.W.2d at 762.

                                           CONCLUSION

       We affirm the trial court’s judgments of conviction.

                                                   Luz Elena D. Chapa, Justice

DO NOT PUBLISH




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