                                   NO. 07-07-0025-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                   APRIL 15, 2008
                          ______________________________

                                 DONNY KEVIN DAVIS,

                                                                Appellant

                                             v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

             FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                     NO. 53,837-E; HON. ABE LOPEZ, PRESIDING
                        _______________________________

                        Memorandum Opinion After Abatement
                         _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Per our former opinion, we remanded this cause to the trial court with directions that

it convene a hearing upon the motion for new trial filed by Donny Kevin Davis. At that time,

the trial court was to determine whether Davis received ineffective assistance of counsel

because his trial attorney did not request or object to the omission of an accomplice

witness instruction. After concluding that trial counsel’s “omission did not constitute
deficient performance” and appellant “was not prejudiced by the omission,” the trial court

denied the motion. Finding no error in that decision, we affirm the final judgment.

       Assuming arguendo that the failure to request an accomplice witness instruction

constitutes defective performance, see Henson v. State, 915 S.W.2d 186, 197 (Tex.

App.–Corpus Christi 1996, no pet.) (so holding), the evidence unrelated to the accomplice’s

testimony sufficed to connect appellant to the crime charged. So too did it, by itself,

provide sufficient basis upon which a jury could rationally conclude, beyond reasonable

doubt, that appellant committed the burglary. Indeed, we concluded as much in our prior

opinion, see Davis v. State, No. 07-07-0025-CR, 2008 Tex. App. LEXIS 53 (Tex. App.–

Amarillo January 4, 2008, no pet. h.), as did the trial court in its findings of fact and

conclusions of law. Given this, we now hold that there was not a reasonable probability

that the outcome would have differed had the omission not occurred; consequently, the

trial court did not err in denying a new trial. See Henson v. State, 915 S.W.2d at 197

(holding that if there is a reasonable possibility that a rational jury would convict the

defendant without the accomplice witness testimony, then trial counsel’s omission is not

reversible error); accord Cunningham v. State, No. 06-05-0215-CR, 2006 Tex. App. LEXIS

8206 at *6 (Tex. App.–Texarkana, September 19, 2006, pet. ref’d) (concluding similarly).

       By this opinion, we have resolved all issues pending in this appeal and affirm the

judgment of the trial court.



                                                Brian Quinn
                                                Chief Justice


Do not publish.

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