             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. AP-76,118



                     EX PARTE CARLOS LUIS CAMPOS, Applicant



               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                          FROM HARRIS COUNTY



      K ELLER, P.J. delivered the opinion of the court in which M EYERS, W OMACK,
K EASLER, H ERVEY, H OLCOMB and C OCHRAN, JJ., joined. P RICE, and J OHNSON, JJ.,
concurred.


       We filed and set this application to determine whether trial counsel rendered ineffective

assistance in failing to impeach two of the State’s witnesses for bias and motive. We conclude that

applicant has failed to satisfy the Strickland1 test, and we therefore deny relief.

                                        I. BACKGROUND

                                       A. Procedural History

       Applicant was indicted for murdering Alexander Pacheco on June 2, 1994. He was tried in

January of 1995, but that trial ended in a mistrial because the jury was unable to reach a verdict.

       1
           Strickland v. Washington, 466 U.S. 668 (1984).
                                                                                         CAMPOS – 2

According to trial counsel’s affidavit, “a slim majority of the jurors favored acquittal on the basis

of self-defense.”2 Applicant was retried in June of 1995. At the second trial, the jury found him

guilty, sentenced him to life in prison, and made an affirmative deadly weapon finding. The

Fourteenth Court of Appeals affirmed his conviction.3

        Applicant subsequently filed this application for habeas corpus. Among other things, the

application alleges that two of the State’s witnesses at the second trial – Sean Aveilhe and Lynn

Harris – were on felony deferred adjudication, with motions to adjudicate pending, and: (1) the State

violated Brady v. Maryland4 by failing to reveal this information, or (2) defense counsel was

ineffective in failing to impeach the witnesses with this information at the second trial. We

remanded the case to the trial court for further proceedings, including obtaining an affidavit and

making findings regarding applicant’s Brady claim. The trial court complied with our remand order,

and a supplemental record has been forwarded to us. In its supplemental findings, the trial court

found that information with respect to Aveilhe and Harris was disclosed by the State to defense

counsel.5 We ordered briefing on the ineffective assistance question.6


        2
            The trial court made no finding of fact regarding the credibility of this statement.
        3
         Campos v. State, No. 14-95-00740-CR (Tex. App.–Houston [14th Dist.] June 5, 1997)(not
designated for publication).
        4
            373 U.S. 83 (1963).
        5
          The trial court’s findings are supported by the following evidence: Affidavits from Carolyn
Allen, the prosecutor at applicant’s first trial, and Matthew Alford, the prosecutor at applicant’s
second trial, stated that the information concerning Aveilhe was in the State’s file. In addition,
though she had no specific recollection of her actions, Allen believed, based upon a motion in limine
she drafted regarding Aveilhe’s record, that she provided the information to defense counsel. In his
supplemental affidavit, Alford stated that, though he had no specific memory of Harris, or her
criminal history, he would have talked to Harris prior to trial. In her affidavit, Harris stated that she
discussed her outstanding warrant with Alford. Further, though Alford had no specific recollection
                                                                                        CAMPOS – 3

                              B. Evidence - The Underlying Events

                                         1. Inside the Store

       A recitation of the facts is necessary. On June 2, 1994, applicant shot and killed Alexander

Pacheco outside a Stop-N-Go store. Certain events that occurred inside the store were recorded on

videotape by a store camera, but the sound quality is poor. The State used transcripts at trial,7 and

the defendant contested the accuracy of those transcripts before the jury. An enhanced version of

the videotape and a different set of transcripts that were available during a civil trial have been made

part of the record of this habeas proceeding.

       In rough outline, the following sequence of events can be gleaned from a review of the

videotapes and of testimony concerning the events depicted: At around midnight, applicant entered

a Stop-N-Go with his girlfriend, Madelyn Longoria. He began talking to the store clerk, David

Michael Payne, who was a good friend of his. Alexander Pacheco entered the store, drinking from

a Rolling Rock bottle, to buy some beer. When he placed two quart bottles of beer on the counter,

Payne asked for his identification. Applicant commented that Pacheco did not look like he was

twenty-one. Pacheco responded, “Who asked you?” Applicant replied, “Your daddy.” Pacheco

responded, “That shows what you know. I don’t have a daddy.” Applicant replied, “I’ll show you

how much I know,” and left the store. Longoria soon followed, placing her drink on the counter


of whether he discussed the criminal histories of Aveilhe and Harris with defense counsel, he said
that his normal practice would have been to divulge information concerning the criminal histories
of the State’s witnesses.
        6
          Ex parte Campos, No. AP-76,118 (Tex. Crim. App. March 18, 2009)(not designated for
publication).
       7
          The jury was allowed to use the transcripts as an aid while the tape was played at trial, but
the transcripts were not admitted into evidence and were not available during deliberations.
                                                                                       CAMPOS – 4

before leaving the building.8 As Pacheco paid for the beer, he asked Payne whether applicant carried

a gun. Payne replied that he did not know, and asked, “Why?”

       Both the original and enhanced tapes are difficult to understand after this point. The State’s

transcript shows Pacheco responding, “I don’t know, wondering about what he went to get.”

Applicant contends that the civil trial transcript more accurately depicts the conversation, with

Pacheco responding, “I don’t know, that’s probably what he went out to get. I will fuck him up.”9

Payne later testified that he did not pay attention to Pacheco’s answer to his question and could not

relate what was said. As Pacheco left the store, Payne walked to the door to wave to Rodney

Mueller, a customer waiting to pump gasoline.

                                        2. Outside the Store

       Though accounts differ as to what happened next, the witnesses agree that applicant and

Longoria got into a car with applicant on the passenger side, that Pacheco approached the car, that

Pacheco was shot in the face by a gun that applicant was holding, that applicant told Longoria that

they needed to leave, and that the car backed into Mueller’s car and then sped away. The undisputed

evidence also shows that applicant and Longoria did not call the police and that Longoria drove to

a neighborhood where applicant threw the gun into some bushes.

                                        a. Mueller’s Account

       Mueller was at the Stop-N-Go to buy gasoline. He did not know any of the people at the



       8
          Applicant and Longoria were each holding a paper soft drink cup while standing in line to
pay for the drinks. However, applicant left the store with his cup in hand, and Longoria left the store
without paying for either of the drinks.
       9
         At trial, defense counsel argued to the jury that the videotape showed Pacheco saying “I’ll
fuck him.”
                                                                                       CAMPOS – 5

store that night. He saw what he believed to be five hispanic males leave the store, but he would

later learn that one of those individuals – Longoria – was a female. Mueller said that he “really

wasn’t paying a lot of attention until the shooting” but “after the shooting [he] started paying a lot

more attention to what was going on around [him].” Later in his testimony, though, Mueller said

that he was “paying attention” before the shooting because he was at a gas station at night and was

“a little bit leery.”

        Mueller saw applicant and Longoria get into their car and then saw Pacheco walk over to the

car. “As soon as he did, [applicant] pulled out a handgun and shot him.” Mueller testified that he

actually saw a gun come out of the passenger side window. After the shot, Mueller heard the crash

of a beer bottle. When asked whether he saw Pacheco carrying the bottles before the shooting,

Mueller indicated that Pacheco had been carrying two bottles in his right hand. When asked whether

he saw Pacheco raise up the bottles at any point, Mueller replied “no.” On cross-examination,

Mueller testified that Pacheco’s right hand was blocked from view at the actual time of the shooting,

but he had seen the bottles as Pacheco approached Longoria’s car.

        After the shooting, Mueller crouched behind a gas pump and then ran to the side of the store.

He looked over to see if applicant was going to shoot anyone else, and he saw a “smile” or “grin”

on applicant’s face.

                                        b. Aveilhe’s Account

        Sean Aveilhe drove with a friend to the Stop-N-Go to buy beer. Aveilhe stayed in the car

while the friend went into the store. Aveilhe saw applicant talk to the friend before applicant entered

the store. Aveilhe had seen applicant before but did not know who he was. Later, Aveilhe noticed

that Pacheco was in the store at the counter. Pacheco was an acquaintance, but Aveilhe did not know
                                                                                        CAMPOS – 6

him very well. Aveilhe saw Pacheco walk out of the store, throw something into a trash can, and

then walk toward the gas pumps. Pacheco was carrying two beer bottles at waist height. When

asked whether Pacheco ever raised the bottles, Aveilhe replied, “no.” As he was walking toward his

own car, Pacheco made a ninety-degree turn and started walking toward Longoria’s car.

        When Pacheco arrived at Longoria’s car, Aveilhe heard him ask applicant if he was “talking

shit” to him. Applicant answered affirmatively, and then Aveilhe heard a gunshot. Aveilhe ducked

down in his car, then heard a crash, as Longoria’s car backed into Mueller’s car. Aveilhe saw

applicant motion with his hands and say, “Go, baby, go!” Longoria then drove away.

        When Aveilhe’s friend came out of the store, they left immediately. Aveilhe gave three

reasons for leaving the scene: (1) his friend wanted to leave, (2) there was a warrant out for Aveilhe’s

arrest, so he did not want to be there when the police arrived, and (3) Aveilhe was afraid applicant

would realize that there were witnesses to the shooting. After fleeing the scene, Aveilhe used a pay

phone to call the sheriff’s office.

                                         c. Payne’s Account

        According to Payne,10 Pacheco stopped by a trash can to throw away the Rolling Rock bottle

after he left the store. He then grabbed the two beer bottles by their necks and advanced on

Longoria’s car. As Pacheco reached the car, he raised the bottles up over his head as if he were

planning to smash them down on applicant. Then Payne heard a gunshot, and Pacheco fell to the

ground. During later questioning, Payne acknowledged that he had testified at the previous trial that

Pacheco confronted applicant with his hands out to his side, a gesture he had interpreted as meaning



        10
            Though much of his testimony was friendly toward the defense, Payne was called by the
State in its case-in-chief.
                                                                                      CAMPOS – 7

“if you want to fight, come on and get me.”

       When asked whether he watched applicant shoot Pacheco, Payne replied that he “couldn’t

see that far away.” In a prior deposition, however, Payne had answered “yes” to whether he saw

applicant shoot Pacheco. Payne said that he was near-sighted and was not wearing his glasses on

the night of the shooting because they were broken. When asked how far away he was from Pacheco

at the time of the shooting, Payne first answered, “I don’t know.” When pressed for an estimate, he

replied, “Maybe three feet.” Later he changed his answer to “five feet” and when asked to estimate

what was five feet, he replied that it was the distance from the witness stand to the windows in the

courtroom. When asked how he could see Pacheco’s actions but not applicant’s, Payne replied,

“Because there was the light from the store on the bottles.”

       Payne had known applicant for five years, and they often played basketball together. Payne

initially lied to the police about whether he knew applicant when confronted with applicant’s image

on the store videotape, and he pretended to be unable to pick applicant’s picture out of a high school

yearbook. Payne later acknowledged that he deceived the police in an attempt to protect his friend.

       Payne also testified that applicant had shown him a gun two months before at the

neighborhood park where they played basketball. When asked whether the gun applicant had shown

him looked like one of the State’s exhibits, Payne replied, “I don’t know. I couldn’t see. I told you,

I was blind. My vision was blurry.” After a recess, the prosecutor asked Payne again whether the

gun applicant showed him looked like one of the State’s exhibits, and Payne answered that it “might

have been.” Payne also admitted that the conversation he had with applicant on the night Pacheco

was shot included talk about shooting a gun.
                                                                                          CAMPOS – 8

                                        d. Longoria’s Account

        Longoria was applicant’s girlfriend at the time of the incident and at the time of trial. She

testified that Pacheco placed the two beer bottles he had bought on top of a trash can after he left the

store. She then saw him grab one of the bottles by the neck and turn it “up in an upward motion.”

She thought he had taken the top of a bottle off and thrown it away. On cross-examination she said

that he took the top off of one of the bottles and carried it upright while holding the other bottle by

its neck. On further cross-examination, she admitted that, at the previous trial, she testified that

Pacheco carried both bottles by the neck. After picking up the bottles, Pacheco then mumbled

something to the effect of “you want some shit” and walked straight from the trash can to her car.

        Longoria claimed that applicant was saying, “Let’s go,” but she panicked and was having

trouble starting her car. She testified that there was an alarm system that prevented the car from

starting if the headlights were not turned on. She also testified that the passenger window was down

and was “kind of like off track” and difficult to roll up. She claimed that rolling up the window took

two hands from a standing position and that it “takes awhile.”

        Longoria further testified that she did not realize that applicant had retrieved a gun until right

before the shot went off and that she had not realized until then that a gun was in her car. The day

before the shooting, applicant had directed her to a road with a grassy median, and he searched the

median and found a gun there. In the six months that she had been dating applicant, she had never

seen him with a gun. Applicant told her that he was retrieving the gun for a friend. She believed that

he had taken the gun out of the car with some of his clothes.

        Longoria also testified about applicant hiding the gun. And she testified that, holding a

flashlight and using a pitcher of water, she washed off the rear bumper of her car after returning
                                                                                       CAMPOS – 9

home. She claimed that she did so to see more clearly if there was major damage to the car rather

than to try “to wash off any damage” that was incurred.

                                       e. Applicant’s Account

       Applicant testified that Payne’s stepbrother Billy had been forced to abandon a gun at a party

because the police had arrived. Two days before the shooting, Billy said that he had thrown the gun

onto the median of a road. Though applicant did not know the exact location of the gun, he was able

to retrieve it, and he left it overnight in Longoria’s car. Applicant claimed that he was unfamiliar

with this type of weapon and had never fired one. He took the clip out and ascertained that it did not

contain any ammunition. He then went to his garage to see if some bullets he had found would fit.

He claimed that he had found some bullets in a fishing box by a place called the Cliffs. Discovering

that the bullets did indeed fit, applicant loaded the clip, went back to Longoria’s car, and placed the

clip in the glove compartment. The gun itself remained underneath the front passenger seat. When

applicant was at the store on the night of the shooting, he talked to Payne about shooting the gun

sometime.

       Applicant testified that, when he walked out of the store, he was ready to “bump chests and

kiss lips,” by which he meant a verbal confrontation where he and Pacheco would “get in each

other’s faces.” This could lead to “hitting each other” if they kept “talking back to each other

rudely.” But Pacheco did not leave the store right away, so applicant cooled down and decided to

get in Longoria’s car.

       Once he was in the car, applicant saw Pacheco leave the store and walk to a garbage can.

Pacheco then started making “smart-aleck” statements to applicant, picked both beer bottles up by

their necks, and, holding the bottles at shoulder or head height, walked towards Longoria’s car.
                                                                                       CAMPOS – 10

While Pacheco was advancing on the car, applicant told Longoria a couple of times, “Get the car

started! Come on, let’s go, let’s get out of here!” Applicant also reached into the glove compartment

to grab the clip and reached underneath his seat to grab the gun. Applicant inserted the clip into the

gun, began pulling the slide back, and held the gun up to the window. Then the gun jerked forward

and went off. Though applicant had his finger on the trigger, he testified that he had did not mean

to shoot it. Applicant claimed he was in fear for his life at the time he retrieved the gun because

Pacheco could have smashed him on the head with the beer bottles. The prosecutor had applicant

demonstrate for the jury his actions of retrieving the gun and the clip and putting them together.

        According to applicant, when the shot went off, he said “My God, he’s shot!” and then said

something like, “What should I do?” and, “Let’s go,” and, “Go, baby.” Applicant further testified

that he directed Longoria to a neighborhood that he was not very familiar with and that he threw the

gun into some bushes. He threw the gun away because he “just didn’t want the gun anymore.”

                       3. Before the Incident - Lynn Harris & Jean Dugas

        Lynn Harris did not testify at the first trial but testified at the second trial. Jean Dugas

testified at the the first trial but did not testify at the second trial, though he was under subpoena.

        At the second trial, Harris testified that, on May 27, 1994, she attended a high school

graduation party, where she saw applicant. During the party, applicant grabbed Jean Dugas’s hand

and placed it on applicant’s stomach, while saying, “I don’t have to worry about nothing. We don’t

have to worry about nothing. I am just waiting for someone to talk shit to me.” Later, when the

police arrived at the party, applicant stated, “What am I going to do? What am I going to do? I got

this gat.” Harris explained that “gat” was a slang term for a gun. As applicant was talking, his shirt

came up, and Harris saw the black handle of a gun.
                                                                                      CAMPOS – 11

       Harris also made a statement to the police about the incident on June 3, 1994. In that

statement she said:

       Carlos placed the palm of John’s11 hand on his stomach so that John could feel
       something he had under his shirt. The shirt wasn’t tucked in. Carlos told John, “I’m
       not worried about nothing. I’m waiting for someone to say something so that I can
       shoot them.” Carlos walked away with his girlfriend.

       Later on that night the police came and broke up the party. As we were getting ready
       to leave Carlos walked up to us and pulled up his shirt several times. I saw that he
       had a gun under his shirt. He was very nervous. He was talking with Thomas
       McSwain. He was trying to decide whether or not to leave. He was afraid the police
       were going to find his gun.

       At the first trial, Dugas testified about the same incident. He said that at a party in May 1994,

applicant grabbed Dugas’s hand and placed it on a gun tucked in applicant’s waistband, while saying

that if anyone started to mess with him, he’d shoot them.

                               C. The Impeachment Information

       On March 28, 1991, Aveilhe was placed on deferred adjudication for possession of LSD with

intent to deliver. In May of 1992, the State filed a motion to adjudicate guilt, and a capias for

Aveilhe’s arrest was issued. Aveilhe was adjudicated guilty on October 6, 1995 and sentenced to

five years in prison, but he was granted shock probation on December 1, 1995.

       On March 2, 1994, Harris was placed on deferred adjudication for burglary of a habitation.

Between applicant’s first and second trials, Harris moved to North Carolina, in violation of her

conditions of supervision, because her father was ill. On February 21, 1995, the State filed a motion

to adjudicate guilt. The motion to adjudicate was overruled by agreement on May 13, 1996, but her

guilt was later adjudicated, and she was sentenced to five years in prison.



       11
            “John” is Jean Dugas.
                                                                                       CAMPOS – 12

                                           II. ANALYSIS

       An applicant must show two things to establish ineffective assistance of counsel under

Strickland: (1) deficient performance by counsel and (2) prejudice.12 To establish deficient

performance, the defendant must show “that counsel’s representation fell below an objective

standard of reasonableness.”13 To establish prejudice, the defendant must show “that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.”14 “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.”15

                                     A. Deficient Performance

       We turn first to the question of deficient performance. We measure counsel’s performance

“against the state of the law in effect during the time of trial.”16 Counsel is not held responsible for

later judicial decisions that change the law, nor can he be found ineffective if the law was unsettled

at the time counsel acted on the defendant’s behalf.17 In assessing defense counsel’s performance

in the present case, we find it helpful to trace the development of the law with respect to the type of

impeachment claims at issue here.

       In Davis v. Alaska, the Supreme Court of the United States held that the Confrontation


        12
             466 U.S. at 687.
       13
             Id. at 688.
       14
             Id. at 694.
       15
             Id.
       16
             Ex parte Roemer, 215 S.W.3d 887, 894 (Tex. Crim. App. 2007).
       17
             Id.
                                                                                      CAMPOS – 13

Clause of the Sixth Amendment18 required that the defendant be permitted to impeach a witness with

evidence that showed that the witness had a vulnerable relationship with the State.19 In Davis, a bar

was burglarized, and the safe was taken.20 The safe was ultimately recovered near the house of one

of the State’s witnesses.21 This witness identified the defendant as carrying a crowbar and standing

beside a car in the location where the safe was later found.22 The defendant was not allowed to

present evidence that this witness was on probation for juvenile delinquency for burglaries of his

own.23 In holding that the trial court erred in excluding the evidence, the Supreme Court observed:

       The accuracy and truthfulness of [the witness’s] testimony were key elements in the
       State’s case against [the defendant]. The claim of bias which the defense sought to
       develop was admissible to afford a basis for an inference of undue pressure because
       of [the witness’s] vulnerable status as a probationer, as well as of [the witness’s]
       possible concern that he might be a suspect in the investigation.24

       Although a number of Texas cases have addressed the holding in Davis, we discuss several

that represent the evolution of Davis’s progeny in this state. In Evans v. State, the prosecution

witness was under indictment for an unrelated offense, but he was a potential suspect in the offense

for which the defendant was charged, and the accuracy of the witness’s testimony was crucial to the




       18
          “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him.” U.S. CONST ., Amend. 6.
       19
            415 U.S. 308 (1974).
       20
            Id. at 310.
       21
            Id.
       22
            Id.
       23
            Id. at 310-11.
       24
            Id. at 317-18 (citation and footnote omitted, bracketed material substituted for original).
                                                                                        CAMPOS – 14

State’s case.25 We held that the trial court erred, under Davis, in refusing to permit impeachment

based on the pending criminal charge.26 In Randle v. State, the prosecution witness was under

indictment for an unrelated offense but was not a potential suspect for the offense for which the

defendant was charged.27 Nevertheless, we held that the witness’s pending charge “was admissible

to afford a basis for an inference of undue pressure due to his status as an indictee.”28

        However, in Carmona v. State, we held that “the principle of Davis v. Alaska is not offended

when a defendant is prohibited from asking a witness about an unrelated pending charge, provided

that the defendant has otherwise been afforded a thorough and effective cross-examination and where

. . . the bias and prejudice of the witness is . . . patently obvious.”29 And in Callins v. State, we held

that the rule in Davis was not violated by the refusal to permit the defendant to impeach a witness

with his status of being on deferred adjudication, where the defendant made no showing that the

witness’s testimony was “a result of bias, motive or ill will emanating from his status of deferred

adjudication.”30

        In two later cases, decided after applicant’s trial, this Court backed away from the holdings

in Carmona and Callins. In Carroll v. State, this Court held that the Confrontation Clause requires




        25
             519 S.W.2d 868, 871-73 (Tex. Crim. App. 1975).
        26
             Id. at 873.
        27
             565 S.W.2d 927, 929-30 (Tex. Crim. App. 1978).
        28
             Id. at 931.
        29
             698 S.W.2d 100, 104 (Tex. Crim. App. 1985).
        30
          780 S.W.2d 176, 196 (Tex. Crim. App. 1989); see also Jones v. State, 843 S.W.2d 487,
496 (Tex. Crim. App. 1992)(citing Callins).
                                                                                   CAMPOS – 15

that a defendant always be permitted to impeach a witness with the existence of a pending criminal

charge.31 Judge Keller dissented, contending that prior precedent did not require admission of

pending charges in every case.32 “[O]rdinarily, the mere existence of a pending charge gives rise to

an inference that the witness may have been influenced,” she said, “But in some cases, additional

facts in the record may show that such an inference is not warranted.”33 Concluding that Carroll was

such a case, Judge Keller observed that the witness was charged with aggravated robbery after he

gave the police a statement regarding the offense with which the defendant was charged, and the

witness’s earlier statement was entirely consistent with his later testimony.34 In Maxwell v. State,

the Court disavowed the rule in Callins that something must be shown beyond the witness’s deferred

adjudication status before impeachment must be allowed under the Confrontation Clause.35

       Applicant was tried after Carmona and Callins but before Carroll and Maxwell. Under

Callins, in order to be entitled to impeach Aveilhe and Harris, applicant had to show more than that

they had pending deferred adjudications. Applicant did so: Not only did the witnesses have pending

deferred adjudications, but they also had pending motions to adjudicate.

       The existence of motions to adjudicate is significant. It could be argued that a person may

believe that he has nothing to worry about if deferred adjudication supervision is being served in a

satisfactory manner. Such a person may believe that if he just continues to meet the conditions of


       31
            916 S.W.2d 494, 497-98, 501 (Tex. Crim. App. 1996).
       32
            Id. at 505, 505 n.2 (Keller, J. dissenting)(citing Carmona).
       33
            Id. at 505.
       34
            Id. (emphasis in original).
       35
            48 S.W.3d 196, 198-200 (Tex. Crim. App. 2001).
                                                                                     CAMPOS – 16

supervision, then there is nothing that the State can or will do to him. But if a motion to adjudicate

is pending, then the person does have something to worry about. Such a person is in essentially the

same position as a person with pending charges. His fate is no longer in his own hands, and the

possibility of currying favor becomes more evident. The pre-Carroll caselaw at least suggested that

pending charges were generally enough to raise an inference that the witness’s testimony flowed

from a vulnerable relationship, for which the witness could be impeached, though under that caselaw

there was still the possibility that additional circumstances could negate such an inference.

       With respect to Harris, there were additional circumstances that might negate such an

inference. Although Harris was on deferred adjudication, no motion to adjudicate was pending when

she gave her statement to the police. In fact, the conduct that would later become the basis for the

State’s motion had not yet occurred. Harris’s testimony at applicant’s second trial was consistent

with, and no more incriminating than, her earlier statement. Under pre-Carroll caselaw, then, a

defense attorney could have reasonably believed that Harris’s trial testimony was not influenced by

the vulnerable relationship she had with the State because that relationship arose after her earlier

statement to the police. Even if defense counsel were unaware of Harris’s pending motion to

adjudicate at the time of applicant’s trial, defense counsel’s failure to discover the motion to

adjudicate would not constitute deficient performance because it would have been reasonable to

assume that Harris’s statement to the police fixed the relevant point in time for determining any

influences bearing upon her credibility.

       The same cannot be said with respect to Aveilhe. The State had filed its motion to adjudicate

over two years before the shooting at issue here. Though Aveilhe was never a suspect in this case,

during all stages of the investigation and prosecution, he was subject to having his offense
                                                                                     CAMPOS – 17

adjudicated. He no longer had the assurance that he could retain his liberty if he followed the

conditions of his supervision. He had an obvious incentive, even under the caselaw prior to Carroll

and Maxwell, to curry favor with the State in an effort to derail the proceedings against him. Trial

counsel does not claim in the habeas proceedings to have had a trial strategy for failing to impeach

Aveilhe with the information relating to his deferred adjudication and the motion to adjudicate;

counsel claims that he was unaware of the evidence because the State had not disclosed it. We did

not file and set on the issue of appellant’s Brady claims and we need not say much here except to

observe that the record supports the trial court’s findings that the information was disclosed to

defense counsel. Consequently, we conclude that counsel was deficient in failing to impeach

Aveilhe with this information.

                                             B. Prejudice

       We next move to the question of prejudice. We first observe that the jury was not entirely

ignorant of Aveilhe’s legal troubles. Aveilhe himself testified that one reason he did not remain at

the scene was that there was an outstanding warrant against him.

       Much more significant was the other evidence against applicant. It was undisputed that

applicant shot Pacheco. The only question was whether the shooting was a murder, an accident, or

self-defense. No one testified that Pacheco had anything that could be used as a weapon other than

a couple of beer bottles. Applicant and his girlfriend were inside their car when Pacheco approached

them. Had they driven away at that point, Pacheco would have posed no threat to them. Or

applicant could have rolled up his window to keep himself out of Pacheco’s reach. Instead, he shot

Pacheco, and afterwards fled the scene with his girlfriend.36 During their flight, they hid the murder


       36
            Flight is evidence of guilt. Clayton v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007).
                                                                                       CAMPOS – 18

weapon. And they never called the police. This sequence of events, by itself, strongly inculpated

applicant, and the defense’s exculpatory explanations were not particularly compelling.

           For instance, Longoria claimed that the car would not start because she panicked and was

having difficulty with the unusual alarm system in the car. Her testimony, though, was that the alarm

system prevented the car from starting if the headlights were not turned on. Even if true, all she had

to do was turn on the lights.

           Another explanation that was too convenient was the claim that applicant retrieved the gun

for a friend the day before, and that gun – a Beretta – just happened to be compatible with some

ammunition – hollow point bullets – that he had previously happened to find in a fishing box.

Despite his friend’s vague description, applicant was able to locate the gun fairly quickly, and despite

the fact that it was not his gun, applicant decided to see if the bullets he had found were compatible

with it.

           Other evidence refuted the claim that applicant came into possession of a gun only the day

before and tended to rebut any claim that he was unfamiliar with this type of gun or guns in general.

Payne admitted that he had seen applicant with what could have been a similar gun two months

before the shooting. Harris testified that she saw applicant with a gun at a party less than a week

before the shooting. Harris also testified to applicant’s eagerness to use the gun, as he was “just

waiting for someone to talk shit” to him.37


           37
          We consider the full impact of Harris’s testimony in our prejudice analysis because of our
prior conclusion in this opinion that counsel did not perform deficiently in failing to impeach her.
However, even if Harris had been impeached, the State would have then been able to admit her prior
statement to the police as a prior consistent statement to rebut a charge of recent fabrication or
improper influence or motive. See TEX . R. EVID . 801(e)(B). In addition, the State could have
decided to introduce Dugas’s testimony, which would have confirmed applicant’s possession of a
gun and, if not his eagerness, then at least his willingness to use it.
                                                                                   CAMPOS – 19

       The three witnesses that presented the defense side of the story – Payne, Longoria, and

applicant – were obviously biased and their testimony was not very credible. Applicant’s interest

in the case is obvious, and Longoria was his girlfriend. Longoria also tried to cover up the events

of the evening of the shooting by washing the area of her car that had collided with Mueller’s car.

Payne was a friend applicant had known for five years and played basketball with. Payne tried to

cover for applicant by pretending to be unable to identify him to the police. And the credibility of

Payne’s description of events is undermined by the fact that he was nearsighted and was not wearing

glasses. Payne also had difficulty estimating how far away Pacheco was from applicant at the time

of the shooting.

       The bottom line is that the State did not need Aveilhe’s testimony. The undisputed evidence

regarding the events of the evening was highly incriminating and the witnesses testifying in

applicant’s favor were obviously biased. The only really incriminating evidence that Aveilhe

testified to that was not admitted to by applicant was that Pacheco was holding the beer bottles in

a non-threatening manner. But testimony to that effect was given by another eyewitness, Mueller,

who was not in a vulnerable relationship with the State and had no axe to grind. Further, the State

was able to impeach both Payne and Longoria on this subject with inconsistent testimony from the

previous trial. And even if Aveilhe had been impeached, his testimony would still have been before

the jury. Given the highly incriminating circumstances, and Mueller’s direct testimony, impeaching

Aveilhe with his vulnerable relationship with the State would not likely have led the jury to

disbelieve Aveilhe’s testimony, much less affect the outcome of the case.

                                          C. Conclusion

       We conclude that applicant has failed to meet the deficient performance prong of Strickland
                                                                             CAMPOS – 20

with respect to Harris’s testimony and has failed to meet the prejudice prong with respect to

Aveilhe’s testimony. Consequently, we deny relief.



Delivered: December 16, 2009
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