Thompson, Ex Parte Robert Lee

IN THE COURT OF

CRIMINAL APPEALS

OF

TEXAS

NO.

AP-75,151

EX

PARTE ROBERT LEE THOMPSON, Applicant

ON

APPLICATION FOR A WRIT OF HABEAS CORPUS

IN

THE 351 ST DISTRICT COURT

OF

HARRIS COUNTY

Cochran ,

J., delivered the opinion of the Court in which Meyers, Price, Womack, Keasler, Hervey, and Holcomb , JJ., joined . Keller , P.J., filed a concurring

opinion . Johnson , J., dissented .

O

P I N I O N

Applicant was convicted of capital

murder for the shooting death of Mansor Bhai Rahim Mohammed during an

aggravated robbery at the 7-Evenings Food Store in Houston. Based upon the

jury = s answers to the special issues set

out in Article 37.071, [1] the trial

court set punishment at death. This Court affirmed applicant = s conviction and sentence on direct appeal. [2]

Applicant raises six claims in his

habeas corpus application filed pursuant to Article 11.071 of the Texas Code of

Criminal Procedure. We ordered the parties to brief two of those claims which

we rephrased:

1) Whether applicant is factually

innocent of the offense of capital murder; and

2) Whether applicant was deprived

of the effective assistance of counsel due to his trial counsel = s failure to request a charge on felony murder.

Both of these claims hinge upon the A newly available @ fact that Sammy Butler, applicant = s triggerman-accomplice, was

convicted of felony-murder after applicant = s trial.

Applicant = s position on the first claim is that

There is no evidence that Applicant personally

killed the complainant. To the contrary, the only evidence is that

Butler committed the offense. Thus, Applicant = s guilt is derivative of Butler = s

guilt. Simply stated, at most Applicant is guilty of the offense for which

Butler is guilty.

Regarding the second claim, applicant

argues that the only viable defense strategy in his trial was to request a jury

instruction on felony-murder B a strategy which succeeded in the accomplice = s trial. Because applicant = s counsel did not request an

instruction on felony-murder, applicant contends that his trial attorney

provided ineffective assistance of counsel under Strickland v. Washington . [3]

For the reasons set out below, we

reject both of these claims. As for his remaining claims, we adopt the trial

court = s findings of fact and conclusions of

law. Based upon those findings and our independent review, we deny relief.

I.

The State = s evidence at trial showed that

applicant and Sammy Butler acted together in planning the armed robbery at the

7-Evenings Food Store. Applicant told Butler that this would be their last

robbery and it was going to be A a big one. @ Applicant, armed with a .25 caliber semiautomatic weapon,

went into the convenience store to exchange a beer he had purchased earlier.

Butler, armed with a .38 caliber revolver, came into the store with him.

Applicant approached Mubarakali

Meredia, who was tending the counter, pointed his pistol at Mr. Meredia, and

told him to open the cash register and hand over all of the money. Applicant

shot Mr. Meredia in the abdomen when he did not move quickly enough. He shot

at Mr. Meredia = s cousin, Mansor Bhai Rahim Mohammed, who also worked at the shop, when

he began running toward the back of the store. [4]

Applicant then shot Mr. Meredia three more times as he lay on the floor. He

ordered Mr. Meredia to get up and get the money for him. Mr. Meredia did so.

Then applicant put his pistol to Mr. Meredia = s neck and pulled the trigger.

Nothing happened. He had run out of bullets. So applicant hit Mr. Meredia on

the head with the butt of his gun and struck him with the cash register

drawer. Nonetheless, Mr. Meredia survived.

Applicant took the money and ran out

of the store. Butler grabbed a stack of lottery tickets as he followed behind

applicant. Applicant jumped into the driver = s seat of their car, while Butler got

into the passenger = s seat, rolled down his window, and fired two shots at Mr.

Rahim who had run to the front door. One bullet hit Mr. Rahim in the chest,

and he died.

Based upon this evidence, the jury

convicted applicant of capital murder. During the punishment phase, the jury

heard evidence that this robbery-murder was only one part of a robbery-murder

spree during which applicant, as the triggerman, had committed two additional

capital murders. [5] Based upon

all of the evidence submitted, the jury found that applicant would pose a

future risk of danger and that there were no mitigating circumstances that

would call for a life sentence. The judge sentenced him to death.

Approximately six months after

applicant = s conviction, his accomplice, Sammy Butler, was tried for capital

murder. The jury in that case returned a guilty verdict on the lesser-included

offense of felony-murder and sentenced Butler to life imprisonment.

II.

A. Claim of Factual Innocence

Applicant contends that he is

factually innocent of capital murder because a different jury found Sammy

Butler guilty only of felony-murder. [6] He argues

that his accomplice liability for the robbery-murder of Mr. Rahim hinges upon

Butler = s conviction in a separate trial

rather than the evidence of his and Butler = s conduct and mental states in

applicant = s own trial. Applicant argues that A it is the intent of the killer which

determines whether the offense is a capital murder or a felony-murder. If the

actual killer intended the death, it is a capital murder. If he did not, it

was not capital murder. @ Applicant misinterprets the law.

Under Section 7.02(a), a person is

criminally responsible for a capital-murder offense committed by another person = s conduct, if

(1) acting with the kind of

culpability required for the offense, he causes or aids an innocent or

nonresponsible person to engage in conduct prohibited by the definition of the

offense; [or]

(2) acting with intent to promote

or assist the commission of theoffense, he solicits, encourages, directs, aids,

or attempts to aid theother person to commit the offense[.]

Thus, applicant could be found guilty

of capital murder under Section 7.02(a) if he had the intent to kill someone

during this aggravated robbery, and (1) he caused or aided a totally innocent

person to shoot and kill Mr. Rahim, or (2) he solicited, encouraged, directed,

or aided Sammy Butler to commit capital murder. [7]

Furthermore, under Section 7.02(b), a

person may be found guilty of capital murder if the following conditions are

met:

[I]f, in the attempt to carry out a conspiracy to

commit one felony, another felony is committed by one of the conspirators, all

conspirators are guilty of the felony actually committed, though having no

intent to commit it, if the offense was committed in furtherance of the

unlawful purpose and was one that should have been anticipated as a result of

the carrying out of the conspiracy.

The jury in this case was instructed

that it could find applicant guilty of capital murder in any of three different

ways: as the actual triggerman; as a party to Sammy Butler = s shooting of Mr. Rahim under Section

7.02(a)(2); or as a co-conspirator to the aggravated robbery under Section

7.02(b). Under the first two theories, the jury was required to find that

applicant himself intended the death of Mr. Rahim; under the third theory the

jury was required to find that applicant should have anticipated Mr. Rahim = s death as a consequence of his and

Butler = s agreement to commit aggravated

robbery and Mr. Rahim = s death occurred in furtherance of that crime.

If the jury found that applicant and

Sammy Butler conspired to commit an aggravated robbery, and either one of them

shot and killed Mr. Rahim (intentionally or unintentionally), either or both of

them may be convicted of capital murder if Mr. Rahim was killed in furtherance

of the aggravated robbery and his murder was one that should have been

anticipated as a part of this aggravated robbery.

There is nothing in Texas law that

limits applicant = s criminal responsibility for the conduct of his accomplice,

Sammy Butler, to only those specific crimes for which a jury has convicted

Butler. In fact, Texas law is exactly the opposite. Section 7.03(2) of the

Penal Code states that it is no defense

that the person for whose conduct the actor is

criminally responsible has been acquitted, has not been prosecuted or

convicted, has been convicted of a different offense or of a different type or

class of offense, or is immune from prosecution. [8]

It is

well-established that one accomplice may be found guilty of a different, more

serious offense than other accomplices. [9]

Indeed, the acquittal of the principal does not prevent conviction of his

accomplice. [10]

And it does not matter whether the acquittal of the principal occurs before or

after the accomplice = s trial. [11]

What matters under Section 7.02(a) is the criminal mens rea of each

accomplice; each may be convicted only of those crimes for which he had the

requisite mental state. As Professor LaFave notes:

The notion that the accomplice may be convicted, on an

accomplice liability theory, only for those crimes as to which he personally

has the requisite mental state, is applicable in a variety of circumstances.

It means, for example, that one may not be held as an accomplice to the crime

of assault with intent to kill if that intent was not shared by the

accomplice. But this limitation has proved most significant in the homicide

area, where the precise state of mind of the defendant has great significance

in determining the degree of the offense. To determine the kind of homicide of

which the accomplice is guilty, it is necessary to look to his state of mind;

it may have been different from the state of mind of the principal and they

thus may be guilty of different offenses. Thus, because first degree murder

requires a deliberate and premeditated killing, an accomplice is not guilty of

this degree of murder unless he acted with premeditation and deliberation.

And, because a killing in a heat of passion is manslaughter and not murder, an

accomplice who aids while in such a state is guilty only of manslaughter even

though the killer is himself guilty of murder. Likewise, it is equally

possible that the killer is guilty only of manslaughter because of his heat of

passion but that the accomplice, aiding in a state of cool blood, is guilty of

murder. [12]

Thus, what is

essential to applicant = s conviction of capital murder as a party

under Section 7.02(a)(2) [13]

is evidence that supports a finding, beyond a reasonable doubt, that he

intended the death of Mr. Rahim and that he assisted Sammy Butler in causing

that death. [14]

The evidence of

applicant = s intent to kill is not merely sufficient, it is

overwhelming:

* Applicant

came to the convenience store armed with a semiautomatic pistol;

* Applicant

knew that Butler came to the convenience store armed with a .38 revolver;

* Applicant

intentionally pointed his pistol at Mr. Meredia and demanded money;

* Applicant intentionally

shot Mr. Meredia in the abdomen;

* Applicant

intentionally shot Mr. Meredia three more times as he lay on the ground;

* Applicant

intentionally shot at Mr. Rahim who was fleeing to the back of the store;

* Applicant

intentionally put his semiautomatic pistol against Mr. Meredia = s neck and pulled the trigger; the

only reason Mr. Meredia did not die from that intentional act was because

applicant = s revolver was out of bullets;

* Applicant

intentionally hit Mr. Meredia over the head with the butt of his revolver;

* Applicant

intentionally struck Mr. Meredia with the cash register drawer.

From this evidence

of applicant = s obvious intent to kill Mr. Meredia and his repeated

attempts to do so, any reasonable juror could conclude that applicant also

intended that his accomplice, Sammy Butler, kill Mr. Rahim.

Applicant argues

that, even though he may have acted with malice aplenty and attempted to kill

and intended to kill, the offense of capital murder was never committed by

anyone because a different jury found that Butler did not intentionally kill

Mr. Rahim. He relies upon the first sentence of Section 7.03 which reads:

In a prosecution in which an actor = s criminal responsibility is based

on the conduct of another, the actor may be convicted on proof of commission

of the offense and that he was a party to its commission . . . . [15]

Applicant argues

that Butler = s subsequent acquittal of capital murder proves that,

under Section 7.03, no capital murder was ever committed. Applicant misreads

Section 7.03. That provision applies to the proof offered at applicant = s trial, not the

evidence offered in some other trial. It was in applicant = s trial that the

State bore the burden of offering A proof of

commission of the offense @ of capital murder. And indeed it did.

There is evidence aplenty that Sammy Butler, as well as applicant, intended to

cause Mr. Rahim = s death:

* Butler came

to the convenience store armed with a .38 revolver;

* Butler knew that

applicant came to the convenience store armed with a semiautomatic pistol;

* Butler knew

that applicant shot Mr. Meredia several times;

* Butler shot

at Mr. Rahim and another customer while applicant was shooting at Mr. Meredia;

* Butler

threatened to shoot other customers while applicant was grabbing the money from

the cash register;

* Butler did

shoot in the direction of Mr. Rahim a second time while both robbers were still

in the store;

* After

applicant and Butler got into their getaway car, Butler rolled down the

passenger-side window and shot Mr. Rahim who had run to the door of the store;

* Butler shot

at Mr. Rahim twice;

* One of those

shots hit Mr. Rahim in the chest and killed him.

* Applicant

told police during his oral confession that Butler A kept shooting. He unloaded and I

unloaded. @ [16]

It might be

possible to conclude that Butler did not aim at Mr. Rahim or intend to shoot

him in the chest. But applicant = s jury was

certainly entitled to believe that Butler = s two shots were

not a sheer accident, and that Mr. Rahim = s death was not

the result of a wayward bullet that fortuitously ended up striking the unlucky

man. [17]

It was entitled to conclude that Butler intended precisely what occurred B Mr. Rahim = s death. [18]

And it was also entitled to conclude that applicant intended that Butler shoot

and kill Mr. Rahim just as applicant surely would have killed Mr. Meredia if

only he had not first run out of bullets.

In sum, there was

ample evidence offered at applicant = s trial that Sammy

Butler committed the offense of capital murder and that applicant assisted or

encouraged him in that

endeavor by his

own acts of attempting to commit the capital murder of Mr. Meredia. The fact

that the jury in Butler = s trial declined to convict him of capital

murder does not affect the validity of applicant = s capital murder

conviction. [19]

Thus, although the

verdict in Butler = s trial may be A newly available

evidence, @ it is not evidence that shows (or even tends to show)

applicant = s innocence of capital murder. Therefore, we adopt

the trial court = s findings of fact and conclusions of law

concerning applicant = s claim of factual innocence.

B. Claim of

Ineffective Assistance of Counsel

Applicant also

contends that his trial counsel provided constitutionally deficient assistance

because he failed to request an instruction on the lesser-included offense of

felony-murder. [20]

Applicant further contends that his counsel = s deficient

performance probably caused the jury to return a verdict of capital murder

rather than felony-murder. Applicant raised this ineffective assistance claim on direct appeal,

arguing that trial counsel should have A request[ed] a lesser-included offense

charge as it would apply to the offense of murder. @ [21] This Court rejected that claim

because the record did not contain sufficient information concerning trial

counsel = s strategy. It does now.

In his affidavit, applicant = s trial counsel stated that the

defense strategy that he and his co-counsel decided upon was that applicant did

not anticipate Butler = s murder of Mr. Rahim:

The basis of our cross-examination, and defensive

strategy was that Mr. Thompson knew of and intended to participate in an

aggravated robbery, but in no way did he either know or anticipate that someone

would be killed, especially under the circumstances of the complaining witness = death. . . . This was the argument that I made to the

jury during the guilt phase of the trial. However, based on the confessions,

and the actions of Mr. Thompson while inside the store, i.e. Mr. Thompson shot

someone, who did not die, Mr. Williams and I concluded that a request for a

lesser included instruction of felony murder was not shown by the evidence. [22]

Thus, trial counsel made the reasoned

strategic decision that their strongest argument was that applicant did not and

could not have anticipated that Butler would shoot Mr. Rahim as the two

departed from the convenience store. That argument was at least as strong B if not stronger B than the argument that Butler did

not intend to kill Mr. Rahim and that his act of shooting at him twice was an

unforeseeable accident, albeit an act clearly dangerous to human life.

Applicant = s attorney noted that this defensive position was carried through to the

punishment phase concerning the A anti-parties @ special issue: [23]

With regard to Special Issue 2, the argument was

centered on 1. The fact that Mr. Thompson was not the shooter. 2. That the

manner in which the complainant was killed, i.e. as they drove away, Mr. Butler

shot in the dark and the complainant was standing at the door. Mr. Thompson

was in no way responsible for the death of Mr. Rahim, and could not have

anticipated that Butler would shoot as they were driving away and it was dark.

3. That Mr. Thompson = s intent was to commit an aggravated robbery and

nothing more, which he did.

As applicant = s counsel noted, this strategy was

ultimately unsuccessful, perhaps because of the evidence of applicant = s two other capital murders. But

counsel did not create those facts. Applicant now argues that he was not

entitled to any charge on the lesser-included offense of aggravated robbery,

but he was entitled to a charge on felony-murder. He states that, A given those undisputed facts [of

applicant = s attempts to kill Mr. Meredia and shoot Mr. Rahim] no one could

plausibly argue that Applicant should not have reasonably anticipated that Butler

might engage in violence, including shooting a person. @ Such a strategy, argues applicant,

is A laughable. @

Applicant notes that in Solomon v.

State , [24] this Court

held that a person charged with capital murder is not entitled to a

lesser-included instruction on aggravated robbery unless there is evidence

showing one of three things: (1) there was no murder; (2) the murder was not

committed in furtherance of a conspiracy; or (3) the murder should not have

been anticipated. [25] In this

case, as applicant candidly admits, there is ample evidence that (1) there was

a murder; (2) the murder was committed in furtherance of a conspiracy; and (3)

the murder should have been anticipated. Thus, he argues, it was error to

charge the jury on this lesser included offense. Perhaps so, but it certainly

did not harm applicant, and at least it gave the defense attorneys something

solid to argue during closing arguments.

Applicant then turns around and

contends that counsel should have requested a lesser-included instruction on

felony-murder. But submission of felony-murder is not warranted unless there

is evidence that shows:

(1) for purposes of party liability

under Section 7.02(a)(2), applicant himself did not intend the death of Mr.

Rahim or another;

(2) for purposes of conspiracy

liability under Section 7.02(b), Butler = s

act of shooting Mr. Rahim was not committed in furtherance of a conspiracy; or

(3) for purposes of conspiracy

liability under Section 7.02(b), applicant should not have anticipated that

Butler would shoot Mr. Rahim.

In arguing that he was not entitled

to a charge on aggravated robbery, applicant agrees that there is no evidence

supporting prong (2) or (3). And he fails to point to any evidence that

affirmatively shows that applicant himself did not intend the death of Mr.

Rahim or another.

Applicant relies, instead, upon his

oral confession to the police in which he describes Butler = s action and surmises about Butler = s intent:

Well, he [Butler] shoots B And, the man was coming up and was going back. He just shot basically

at the window just to make the man go run back in the store as we got away.

This description of Butler = s actions and intent, however, is not

evidence that affirmatively shows that applicant had no intent to kill. [26]

And, under the law of parties, it is applicant = s intent that is determinative of his

guilt for either capital murder or felony-murder.

The evidence was clearly sufficient

to establish that applicant participated in the murder of Mr. Rahim and

intended his death. The question concerning an entitlement to the

lesser-included of felony-murder is whether the evidence would permit a

rational jury to make a contrary finding: that is, based upon the evidence,

could a rational jury conclude that Butler acted entirely alone in the shooting

death of Mr. Rahim, and that applicant did not intend or anticipate this

murder? [27] That

evidence need be only more than a mere scintilla, and it may be impeached or

contradicted, but it must be sufficient, if believed, to at least permit a

rational jury to return a verdict on the lesser-included offense. [28]

Under this standard, applicant was not entitled to a charge on felony-murder

and therefore his counsel was not ineffective for failing to request such a

charge. [29]

Applicant argues that there was no

downside to asking for an instruction on the lesser-included offense of

felony-murder. But there might well have been a very serious downside had

applicant offered any evidence of lack of intent or had he engaged in any

cross-examination that might raise an issue concerning his lack of intent to

kill. Once applicant opens the door to the issue of murderous intent, the

State would presumably walk right through that door with the evidence of the

two extraneous capital murders that applicant himself committed to prove that

he had a murderous intent on this occasion just as he had on those two other

occasions. [30]

When judging an attorney = s conduct in retrospect, we cannot

assume that only his conduct might have been different. We must assume that,

as in a chess game, if a defendant hypothesizes a different strategy or move by

his pawn or queen, the State would have altered its strategy and made a

different move with its chess pieces as well. In this case, applicant = s case at the guilt phase might have

been considerably worsened had he attempted to raise an issue concerning his

intent to kill. Therefore, we cannot conclude that his counsel = s chosen strategy B to forego an attack upon the State = s case concerning his own intent to

kill and instead concentrate on a plausible argument (albeit largely

unsupported by evidence) that applicant could not have anticipated Butler = s act of shooting Mr. Rahim B was a constitutionally ineffective

one.

We therefore adopt the trial court = s findings of fact and conclusions of

law, and based upon those findings and our own independent review, we deny

relief on all claims.

Delivered: November 9, 2005

Publish

[1] Tex. Code

Crim. Proc. art. 37.071(b) & (e)(1).

[2] Thompson v. State , No. 73,128 (Tex. Crim.

App. June 26, 2003) (not designated for publication).

[3] 466 U.S. 668 (1984).

[4] At Butler = s trial, the State offered evidence that Butler

pulled out his .38 revolver, also shot at Mr. Rahim, and threatened several

other customers during this time.

[5] Applicant had three pending capital murder charges

at the time of trial.

[6] According to applicant, Butler = s conviction of the

lesser-included offense of felony-murder A is

a jury finding after a full trial, a finding binding upon the State under the

principles of collateral estoppel. Both Butler = s

acquittal of capital murder and his availability to testify are facts which

were unavailable at the time of Applicant = s

trial. @

[7] Put another way, the evidence must show that, at

the time of the offense, the parties were acting together, each contributing

some part toward the execution of their common purpose. Ransom v. State ,

920 S.W.2d 288 , 302 (Tex. Crim. App. 1994).

[8] Tex. Pen.

Code ' 7.03(2); see, e.g., Singletary v. State , 509

S.W.2d 572, 578 (Tex. Crim. App. 1974) (noting that A an accomplice is not entitled to a new trial or reversal just because a

subsequently tried principal has been acquitted. The fact that another jury

acquitted the principal in a subsequent trial does not by itself entitle an

accomplice to the same offense to a new trial. In many instances different

juries reach opposite results on the same evidence. @ ) (citations omitted); Reece v. State , 521 S.W.2d 633, 634-35

(Tex. Crim. App. 1975) (either of two co-defendants could be convicted of

aggravated robbery although one of them was convicted only of A simple @ robbery; A the evidence was sufficient to support a conviction

of aggravated robbery for either defendant @ ); see generally, Donald M. Zupanec, Acquittal

of Principal, or His Conviction of Lesser Degree of Offense, as Affecting

Prosecution of Accessory, or Aider and Abettor , 9 A.L.R. 4 th 972

(1981 & 2005 Supp.).

[9] See generally , 1 Charles E. Torcia, Wharton = s Criminal Law ' 34 (15th ed. & 2004 Supp.); Rollin M. Perkins & Ronald N. Boyce,

Criminal Law , 582 (1957); see, e.g., People v. Garcia , 52 P.3d

648, 652 (Cal. Ct. App. 2002) (noting that A [b]ecause an

aider and abettor may potentially be guilty of a more serious offense than the

shooter . . . the absence of a shooter = s conviction is not dispositive of the aider and

abettor = s exposure to liability @ ); State v. Kaplan , 469 A.2d 1354, 1355 (N.H. 1983) (conviction

of wife who pleaded guilty to accomplice role in murder of husband would not be

reversed even though principal, an alleged contract killer, was acquitted, and

noting that A > conviction of an accomplice is thus premised upon proof of the

commission of the criminal act, rather than on the guilt of the principal = @ ) (citation

omitted); Jeter v. State , 274 A.2d 337, 338-39 (Md. 1971) (collecting

cases and concluding that virtually all American jurisdictions hold that the

subsequent acquittal of a principal does not affect the trial or conviction of

an accomplice). The North Carolina Supreme Court has traced this principle

back three hundred years to Wallis = Case,

1 Salk. 334. See State v. Whitt ,

18 S.E. 715, 716 (N.C. 1893). The Model Penal Code also adopts this position. See

Model Penal Code ' 2.06(7) (2001) (accomplice can be convicted A though the person claimed to have committed the offense . . . has been

acquitted @ ).

[10] The controlling case on this issue is Standefer

v. United States , 447 U.S. 10 (1980), in which Standefer was accused of

aiding and abetting a revenue official, Cyril Niederberger, in accepting

compensation beyond that authorized by law. Niederberger was acquitted of

accepting unlawful payments. After Niederberger = s trial and

before his own trial, Standefer moved to dismiss the charges and argued that he

could not be convicted of aiding and abetting the principal when the principal

had been acquitted. His motion was denied, he was convicted, the court of

appeals affirmed, and the Supreme Court granted certiorari. Standefer raised

two issues before the Supreme Court: (1) the federal aiding and abetting

statute was not intended to authorize prosecution of an aider and abettor after

the principal had been acquitted; and (2) the doctrine of nonmutual collateral

estoppel barred the government from prosecuting him after Niederberger = s acquittal.

The

Supreme Court traced the origins of aiding and abetting back to English common

law and noted that at early common law all parties to a felony received the

death penalty; therefore, certain procedural rules were developed to shield

accessories from such severe punishment. 447 U.S. at 15 . Among them was the

rule that an accessory could not be convicted without the prior conviction of

the principal offender: A In every way, > an accessory [followed], like a shadow, his

principal. = @ Id . (quoting 1 J.

Bishop, Criminal Law ' 666 (8th ed. 1892)). This procedural bar applied

only to the prosecution of accessories in felony cases, not in misdemeanor

cases where an accessory could be prosecuted after the principal was acquitted.

Id. at 15-16 . In 1848, Parliament enacted a statute which permitted an

accessory to be convicted even though the principal was acquitted. Id.

at 16 . Congress followed in 1899 by enacting the first statute in this country

which provided that A all persons concerned in the commission of a crime,

whether it be felony or misdemeanor, and whether they directly commit the act

constituting the crime or aid and abet in its commission, though not present,

are principals, and to be tried and punished as such. @ Id . at 17-18. The Supreme Court, in its discussion of the

historical law on aiding and abetting, stated, A Read against

its common-law background, the provision evinces a clear intent to permit the

conviction of accessories to federal criminal offenses despite the prior

acquittal of the actual perpetrator of the offense. @ Id. at 19 . Thus, all participants in a crime A are punishable for their criminal conduct; the fate of other

participants is irrelevant. @ Id. at 20 .

Moving to the issue of collateral estoppel, the

Court noted that several aspects of criminal law make nonmutual estoppel

against the government when a principal is acquitted inappropriate. Id.

at 21-22 . These include limited discovery rights, a prohibition against a

directed verdict on behalf of the government, a bar against the government

seeking appellate review of an acquittal, and a jury = s unfettered right to acquit out of compassion or compromise. Id.

at 22 . Furthermore, A [t]he application of nonmutual estoppel in criminal

cases is also complicated by the existence of rules of evidence and exclusion

unique to our criminal law. @ Id. at 23 . Thus, evidence that is

admissible against one accomplice may be inadmissible against others,

preventing the government from presenting all of its possible proof against

some of the participants in the crime. Id. at 23-24 . Although A symmetry of results may be intellectually satisfying, it is not

required @ ; thus, the acquittal of a principal does not bar

the conviction of an accomplice. Id. at 25 .

[11] See Owens v. State , 867 A.2d 334, 340 (Md.

Ct. Spec. App. 2005) (noting that the A clear answer given by other courts and treatise

writers @ is that even after a principal has been acquitted

of a crime, another person can be convicted for his role in aiding and abetting

the commission of that same crime).

[12] 2 Wayne

R. LaFave, Substantive Criminal Law '

13.2(c) at 346-47 (2d ed. 2003).

[13] Because of our disposition of this first claim

under Section 7.02(a)(2), we need not address the applicability of applicant = s conspiracy liability under Section 7.02(b) which does not require

proof of applicant = s intent to cause Mr. Rahim = s death.

[14] The jury was not instructed, during the guilt

stage, on the law of transferred intent under Section 6.04(b). Thus, the

charge required the jury to find that applicant intended the death of Mr.

Rahim, rather than some other person under Section 7.02(a)(2).

[15] Tex. Pen.

Code ' 7.03 (emphasis added).

[16] Applicant = s confession was admissible at his own trial but not

at Butler = s trial.

[17] As a part of this claim, applicant contends that

he has A newly available @ evidence from Butler who would testify that he did

not intend to kill Mr. Rahim. But this is not newly available B Butler, like applicant, gave a written confession shortly after his

arrest. Applicant = s trial counsel stated that he was familiar with the

confession in which Butler admitted his participation in the robbery at the

7-Evenings store and that he shot and killed Mr. Rahim. Butler stated then

(and presumably would state now) that he did not intend to kill Mr. Rahim.

Applicant = s trial counsel was aware of Butler = s confession at the time of trial and Butler = s assertion that he did not intend to kill Mr. Rahim matched applicant = s same assertion about Butler = s conduct in his confession. Applicant = s counsel stated that there was nothing in Butler = s confession that caused him to change B or want to

change B his overall trial strategy.

The jury in Butler = s trial

apparently believed that statement, while the jury in applicant = s trial did not believe that Butler unintentionally killed Mr. Rahim.

We cannot dispute the right of two different juries in two different trials to

reach two different verdicts concerning two different defendants based upon two

different sets of admissible evidence.

[18] It is both a common-sense inference and an

appellate presumption that a person intends the natural consequences of his

acts, Whitlock v. State , 146 Tex. Crim. 594, 600 , 177 S.W.2d 205, 208

(1943), and that the act of pointing a loaded gun at someone and shooting it

toward that person at close range demonstrates an intent to kill. Jones v.

State , 944 S.W.2d 642, 647 (Tex. Crim. App. 1996); Flannagan v. State ,

675 S.W.2d 734, 744-45 (Tex. Crim. App. 1984) (op. on reh = g); Womble v. State , 618 S.W.2d 59, 64 (Tex. Crim. App. 1981).

[19] Applicants argues that his A factual innocence @ claim is cognizable under Schlup v. Delo ,

513 U.S. 298 (1995), as one involving both a constitutional violation and a A gateway @ innocence claim. But it is not. Applicant makes

no showing that he is innocent of capital murder or that the State

violated his constitutional rights by trying him before his accomplice, Sammy

Butler.

[20] Applicant asserts this claim under both the Sixth

Amendment to the United States Constitution and under the Texas Constitution,

article I, ' 10. Because he provides no separate analysis under

the Texas Constitution, we will presume that applicant = s position is that the two provisions are identical for purposes of his

claim. See Heitman v. State , 815 S.W.2d 681 , 690 n.22 (Tex. Crim. App.

1991).

[21] On direct appeal, applicant contended that trial

counsel should have requested an instruction on simple murder because the jury

might have believed that applicant only A knowingly @ caused the death of the victim.

[22] At the time defense counsel was appointed,

applicant had three pending capital murder charges and three aggravated robbery

charges. Applicant had given oral confessions admitting his involvement in all

of those pending cases. Concern about the admissibility of extraneous offenses

would surely have been at the forefront of defense counsel = s mind as he planned his strategy for the guilt phase of this trial.

[23] That special issue read as follows:

Do you

find from the evidence beyond a reasonable doubt that Robert Lee Thompson, the

defendant himself, actually caused the death of Mansor Bhai Rahim Mohammed, on

the occasion in question, or if he did not actually cause the death of Mansor

Bhai Rahim Mohammed, that he intended to kill Mansor Bhai Rahim Mohammed or

another, or that he anticipated that a human life would be taken?

This

charge, unlike the one at the guilt stage, did incorporate the doctrine of

transferred intent.

[24] 49 S.W.3d 356 (Tex. Crim. App. 2001).

[25] Id. at 369 .

[26] See Salinas v. State , 163 S.W.3d 734, 741-42

(Tex. Crim. App. 2005). In Salinas , another capital murder case involving

the law of parties, we rejected the contention that defense counsel was

ineffective for failing to request an instruction on felony-murder. Id.

There, as here, A [t]he critical question is whether the evidence showed

that appellant (as a principal or party) had the intent only to rob or to

kidnap, and he did not have the intent to kill. @ Id.

at 742 . We noted in Salinas that A [w]hether appellant was the actual actor or

criminally responsible for the acts of his cohorts by virtue of the law of

parties, the evidence shows not only an intent to commit robbery or a

lesser included offense, but also the intent to kill. @ Id . (emphasis in original). The same is true in the present

case; applicant points to no evidence that affirmatively demonstrates his lack

of intent to kill.

[27] See Aguilar v. Dretke , ___ F.3d ___, __,

2005 U.S. App. LEXIS 22031 *9-11 (5 th Cir., Oct. 12, 2005) (holding

that Texas capital murder defendant was not entitled to charge on

lesser-included offense of murder when co-defendant caused death of second

victim but defendant had motive to kill victim or his family members). As the

Fifth Circuit explained:

The evidence was clearly sufficient to

establish that Aguilar participated in the murder of Leo, Sr. The question is

whether the evidence would permit a reasonable jury to make a contrary

finding: that Quiroz acted alone in Leo's murder without encouragement or

other participation by Aguilar. After reviewing the record, we are satisfied

it would not permit a rational jury to find that if Aguilar is guilty, he is

only guilty of murdering Annette. As the district court pointed out,

Aguilar-and not Quiroz-had the motive to kill Esparza or his family members.

The evidence established that Aguilar had been to the trailer home on several

earlier occasions, threatening Esparza, and had previously discussed with

Annette Chavez the whereabouts of Esparza. Aguilar entered the Esparzas = trailer with his eighteen-year-old nephew (Quiroz), who had no

connection to the Chavezes or Esparza or with Aguilar = s marijuana trafficking. The two entered the trailer with a firearm

and proceeded to severely beat the Chavezes. Then, the couple was shot A execution style @ within minutes of each other. There is no evidence

in the record supporting Aguilar = s contention that he did not have intent to kill

both Leo and Annette when he and Quiroz entered the residence. A reasonable

jury, who would find that Aguilar was the second shooter in this double murder,

could not find that he did not encourage or otherwise participate in the

shooting of Leo, Sr. We therefore conclude that the district court did not err

in rejecting Aguilar = s Beck claim.

Id . at *9-11.

[28] Rousseau v. State , 855 S.W.2d 666, 672-73

(Tex. Crim. App. 1993) ( A some evidence must exist in the record that would

permit a jury rationally to find that if the defendant is guilty, he is

guilty only of the lesser offense @ ) (emphasis in original); see also Cordova v.

Lynaugh , 838 F.2d 764, 767 (5 th Cir. 1988) (holding that a

lesser included offense instruction should be given A if the evidence would permit a jury rationally to find [a defendant]

guilty of the lesser offense and acquit him of the greater @ ).

[29] Salinas, 163 S.W.3d at 742 ; see also Fuentes

v. State , 991 S.W.2d 267, 272-73 (Tex. Crim. App. 1999) (counsel in capital

murder trial not ineffective for failing to request lesser-included offense of

felony-murder instruction because A there is no evidence upon which a jury could

rationally have found that appellant did not intend to kill when he shot the

deceased. @ ).

[30] See, e.g., Navarro v. State , 154 S.W.3d 795,

797-98 (Tex. App. B Houston [14th Dist.] 2004, pet. ref = d) (evidence of other violent acts toward his intended victim

admissible under Rule 404(b) in capital murder trial to prove both defendant = s intent to kill and absence of mistake in attempting to kill his

intended victim); Johnson v. State , 932 S.W.2d 296, 302-04 (Tex. App. B Austin 1996, pet. ref = d) (in capital murder trial, evidence of extraneous

offense was admissible to prove the culpable mental state of intent to kill

when the accused presented evidence to dispute that intent).