Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-13-00560-CR

Nico Allen-Antonio COGDILL,

Appellant

v.

The STATE of Texas,

Appellee

From the 18th Judicial District Court, Johnson County, Texas

Trial Court No. F45973

Honorable John Edward Neill, Judge Presiding

Opinion by: Marialyn Barnard, Justice

Sitting: Catherine Stone, Chief Justice

Sandee Bryan Marion, Justice

Marialyn Barnard, Justice

Delivered and Filed: September 17, 2014

AFFIRMED

A jury convicted appellant Nico Allen-Antonio Cogdill of capital murder. The trial court 

sentenced Cogdill to life imprisonment without the possibility of parole. On appeal, Cogdill 

contends: (1) the evidence is insufficient to support his conviction; and (2) the trial court erred in 

refusing to admit into evidence certain testimony. We affirm the trial court’s judgment. 

BACKGROUND

The evidence establishes Cogdill, whom the evidence suggested was a prospective member 

of the Aryan Brotherhood, spent an evening with Jeremy “Bounce” Bukowski, a member of the 
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Aryan Brotherhood, and Isaac “Rooster” Milne at a trailer house. The men talked about their past 

criminal exploits, including Cogdill’s history of thefts and burglaries. Eventually, Bukowski told 

Cogdill about a planned burglary that had been approved by Bukowski’s supervisor in the Aryan 

Brotherhood, Richard Ringley. The plan involved breaking into a trailer house owned by Rick 

Warren — a forty-nine-year-old invalid. Bukowski and his girlfriend had lived with Mr. Warren, 

but were asked to leave when Mr. Warren suspected they were stealing from him. Bukowski asked 

Cogdill if he would like to participate in the burglary and Cogdill agreed. According to Cogdill, 

Bukowski said no one would get hurt in the course of the burglary. 

As agreed, Bukowski, Milne, and Cogdill met later in the evening and drove to Mr. 

Warren’s residence. According to Cogdill’s written statement, when the men arrived at Warren’s 

residence, Bukowski altered the plan, stating they would kill Mr. Warren and then rob him. 

Bukowski allegedly told Cogdill he “couldn’t have loose lips running around here” and Cogdill 

“would be shot” if he told anyone. According to Cogdill, Bukowski then asked Milne to pull a 

shotgun from the back of the vehicle. The three men approached Warren’s trailer with a crescent 

wrench carried by Milne and the shotgun carried by Bukowski. Cogdill claimed Bukowski again 

threatened him, saying both Cogdill and his family would be shot if he backed out. 

Mr. Warren was asleep in his bedroom with the television on. Cogdill claimed he tried to 

avert the murder, saying “we ain’t got to do this, he’s asleep.” Bukowski allegedly told Cogdill 

that if he refused to participate then “two bodies [are] going to get it instead of one.” Cogdill stated 

Milne then handed him the wrench and he entered the bedroom; Bukowski’s shotgun was still 

pointed at him. Cogdill told law enforcement that as he stood over Mr. Warren he inadvertently 

roused him when the wrench he held brushed against Mr. Warren’s arm. According to Cogdill, 

when Mr. Warren woke up, Cogdill struck him with the wrench “less than five times.” Milne then 

began punching Mr. Warren and Cogdill dropped the wrench. Milne picked up the wrench and 

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continued beating Mr. Warren. Cogdill said the men then gathered items from the trailer house —

a Fender guitar, a laptop, and television set — and left. 

Around the time the men left, Mr. Warren’s sister, Michelle Adams, who lived 

approximately twenty yards from her brother’s trailer house, heard her dog barking. She went 

over to her brother’s house and found the front door locked, which was unusual. Believing 

something was wrong, she ran back to her house to alert her husband. As she was walking back 

to her house, she heard “banging from the back door” of her brother’s trailer house. When she ran 

around to the back of the trailer she saw that the back door, which had been screwed into place 

from the outside, was “barely hanging there.” Ms. Adams said she saw two shadows running away 

from the trailer. When she looked inside the trailer she saw her brother face down in his own 

blood. Having already called 911, Ms. Adams performed CPR on her brother, but she said she 

knew he was already dead. 

When she was subsequently interviewed by law enforcement, Ms. Adams told them about 

Bukowski and his girlfriend. Ms. Adams believed Bukowski might have been involved because 

of the eviction issue, among other things. Later that day, police pulled over Bukowski for a traffic 

violation. In Bukowski’s car, they found Mr. Warren’s laptop. Bukowski was arrested. Police 

later found Mr. Warren’s guitar and television in a trailer rented by Bukowski. Bukowski gave a 

voluntary statement, implicating Milne and Cogdill in the murder of Mr. Warren. 

Cogdill ultimately turned himself in to the authorities. In a videotaped interview taken 

prior to his written statement, Cogdill insisted for more than an hour he never hit Mr. Warren. 

However, after a detective confronted Cogdill with an e-mail Cogdill had prepared to send to the 

Cleburne Times Review, an e-mail in which Cogdill admitted he had swung the wrench and grazed 

Mr. Warren’s shoulder, Cogdill admitted to striking Mr. Warren. In the e-mail, Cogdill also 

claimed the three men had always planned to “knock out” Mr. Warren if he was awake when they 

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entered his trailer. Later, when asked again where he struck Mr. Warren, Cogdill gestured toward 

his own head. 

A detective, who either observed or conducted interviews with all three suspects, testified

Bukowski and Milne contradicted Cogdill’s version of the events. However, as one detective 

testified, Cogdill consistently stated Bukowski and Ringley threatened him multiple times, during 

and after the murder. Cogdill told authorities he was scared, never wanted to participate in the 

murder, and the murder and burglary were Bukowski’s idea. 

Cogdill’s claim of duress was never contradicted. Additionally, Richard Wise, a former 

neighbor and fellow inmate of Bukowski’s, testified outside the presence of the jury that Bukowski 

claimed he used a shotgun to force Cogdill to proceed with the murder. The State objected to 

Wise’s testimony, arguing it constituted hearsay. The trial court sustained the State’s objection

and did not allow Wise to testify about what Bukowski allegedly said about the murder. 

At the conclusion of the trial, the trial court submitted a jury charge instructing the jury to 

consider Cogdill’s culpability as a principal, a party, and as a conspirator. The jury subsequently 

found Cogdill guilty of capital murder — murder in the course of a burglary or robbery1 — and 

the judge sentenced him to a term of life imprisonment without the possibility of parole. Cogdill 

thereafter perfected this appeal. 

ANALYSIS

As noted above, Cogdill raises two issues on appeal. In his first issue, Cogdill contends 

his conviction should be overturned because the evidence is insufficient. With regard to his second 

1 The jury was instructed it could find Cogdill guilty of capital murder in the event he murdered Mr. Warren during 

the course of a robbery or during the course of a burglary of a habitation. As to each, the jury was instructed he could 

be found guilty as a principal, party, or conspirator. 

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issue, Cogdill contends the trial court erred in refusing to admit into evidence certain testimony 

excluded based on the State’s hearsay exception. 

Legal Sufficiency

With regard to his sufficiency claim, Cogdill argues there is no evidence to establish he 

intentionally caused Mr. Warren’s death during the course of a burglary or robbery, either alone 

or with others. He notes there is “no proof from any witness that [he] dealt the blow that killed 

Rick Warren . . . the testimony from the medical examiner was that there was no way of knowing 

the order that the wounds were inflicted or which was the deadly blow or blows.” He further 

argues that because Milne admitted hitting Mr. Warren, the evidence is somehow insufficient as 

to his conviction. Cogdill also asserts his conviction must be overturned because there was no 

evidence to contradict his claim of duress, which relieves him of any responsibility for the murder. 

Standard of Review

When reviewing an appellant’s challenge to the sufficiency of the evidence to support his 

conviction, “we view the evidence in the light most favorable to verdict to determine whether ‘any 

rational trier of fact could have found the essential elements of the crime beyond a reasonable 

doubt.’” Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012) (quoting Brooks v.

State, 323 S.W.3d 893, 902 n. 19 (Tex. Crim. App. 2010)); see Jackson v. Virginia, 443 U.S. 307, 

319 (1979). As the trier of fact, “the jury is the sole judge of the credibility of witnesses and the 

weight to be given to their testimonies, and the reviewing court must not usurp this role by 

substituting its own judgment for that of the jury.” Montgomery, 369 S.W.3d at 192; see Rios v. 

State, 230 S.W.3d 252, 255 (Tex. App.—Waco 2007, pet. ref’d). Our duty is merely to ensure the 

evidence supports the verdict. Montgomery, 369 S.W.3d at 192. Thus, even “[w]hen the reviewing 

court is faced with a record supporting contradicting inferences, the court must presume that the 

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jury resolved any such conflicts in favor of the verdict, even if not explicitly stated in the record.” 

Id. 

Application

Under section 19.02(b)(1) of the Texas Penal Code, a person commits the offense of 

murder if he “intentionally or knowingly causes the death of an individual.” TEX. PENAL CODE 

ANN. § 19.02 (b)(1) (West 2011). The offense of murder is elevated to capital murder under 

section 19.03 of the Code if the murder is committed “in the course of committing or attempting 

to commit . . . burglary, robbery[.]” TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2014). In 

this case, the charge authorized the jury to convict appellant of capital murder: (1) as a principal, 

(2) as a party under section 7.02(a)(2) of the Texas Penal Code, or (3) as a conspirator under section 

7.02(b) of the Penal Code. See TEX. PENAL CODE ANN. §§ 7.02(a)(2), (b) (West 2011). 

Whether as principal, party, or conspirator, the jury must find the defendant acted 

intentionally, though not necessarily with respect to the resultant murder itself, in order to convict. 

“A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result 

of his conduct when it is his conscious objective or desire to engage in the conduct or cause the 

result.” TEX. PENAL CODE ANN. § 6.03 (a). When assessing a defendant’s intent, “[i]t is both a 

common-sense inference and an appellate presumption that a person intends the natural 

consequences of his acts.” Ex parte Thompson, 179 S.W.3d 549, 556 n.18 (Tex. Crim. App. 2005).

Cogdill’s Culpability as Principal

In his written statement, Cogdill admitted he agreed when Bukowski asked if he wanted to 

make some money. Cogdill agreed to break into Mr. Warren’s trailer to steal property. Moreover, 

Cogdill knew the plan was to render Mr. Warren unconscious in the event he was awake when the 

three entered the trailer. Cogdill also acknowledged that he knew Bukowski and Milne had killed 

people in the past. He also conceded Milne broached the idea of “beating up” Mr. Warren, and 

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this idea came up before they left for the trailer house. Additionally, the trio took a large crescent 

wrench and a shotgun with them. 

According to Cogdill, just before they arrived at the trailer, Bukowski told Cogdill they 

were going to kill Mr. Warren. Cogdill claimed in his interview, and in a proposed e-mail to the 

Cleburne Times Review, that he tried to back out, but Bukowski threatened to shoot him. After 

the trio entered the trailer, Milne gave Cogdill the wrench and Bukowski told them to go into the 

bedroom and “strike” Mr. Warren. Cogdill claimed in his videotaped interview that he dropped 

the wrench and left the trailer. For over an hour, he denied hitting Mr. Warren with the wrench or 

his fists. Cogdill told law enforcement Milne alone beat Mr. Warren with his fists and the wrench, 

despite Cogdill’s pleas to stop. Cogdill specifically stated he was not in the room when Milne beat 

Mr. Warren and denied there was any blood on his clothing. Cogdill claimed that if there was 

blood on his clothing, it was transferred from Milne’s clothing when Bukowski took their clothes 

and bundled them together. 

However, after the investigating officers told Cogdill they had his proposed e-mail to the 

newspaper and information from Bukowski and Milne, Cogdill changed his story with regard to 

his involvement in the murder. He first admitted that when Mr. Warren woke up — while he was 

standing over him — he was startled and struck Mr. Warren on the shoulder or neck with the 

wrench, “but that was it.” Then, upon further questioning Cogdill confessed to hitting Mr. Warren 

with the wrench more than once after he sat up. Cogdill maintained his blows could not have 

killed Mr. Warren; rather, it was Milne’s blows that caused the death. 

In his written statement, which was written after the videotaped interview, and in the email to the newspaper, Cogdill stated he “hit” or “grazed” Mr. Warren’s shoulder with the wrench, 

causing him to wake up. According to Cogdill’s written statement, when Mr. Warren woke up 

Cogdill “swung” the wrench, hitting Mr. Warren in the head up to four times. Thereafter, he 

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dropped the wrench, which was picked up by Milne, who continued beating Mr. Warren. Cogdill 

admitted taking items from the trailer and placing them in the car. Thereafter, Cogdill stayed with 

Ringley for two days. He then stayed at a house in Dallas for approximately three days, finally 

returning to Waxahachie and turning himself in to authorities. 

The State also introduced evidence showing that blood found on a t-shirt worn by Cogdill 

belonged to Mr. Warren. The t-shirt was found during a search of Bukowski’s residence. 

Apparently, after Bukowski took Cogdill’s and Milne’s clothes, Bukowski kept them. Mr. 

Warren’s blood was also found on a crescent wrench discovered in Bukowski’s residence. 

We hold a rational trier of fact could have concluded Cogdill, acting as principal, 

intentionally caused the death of Mr. Warren — a death caused during the commission of a 

burglary or robbery — by repeatedly bludgeoning Mr. Warren with a crescent wrench. 

Cogdill contends that even if the evidence establishes he struck Mr. Warren, “there was no 

way of knowing which was the deadly blow or blows.” This contention relates to the issue of 

causation, and we hold that it does not render the evidence insufficient to support the capital 

murder conviction. 

Under section 6.04(a) of the Texas Penal Code, “[a] person is criminally responsible if the 

result would not have occurred but for his conduct, operating either alone or concurrently with 

another cause, unless the concurrent cause was clearly sufficient to produce the result and the 

conduct of the actor clearly insufficient.” TEX. PENAL CODE ANN. § 6.04(a) (West 2011). Given 

Cogdill’s statement about striking Mr. Warren with the crescent wrench a number of times, we 

cannot say “the concurrent cause was clearly sufficient to produce the result and the conduct of 

the actor clearly insufficient.” See id. In other words, we cannot say the blows delivered by Milne 

were sufficient to cause Mr. Warren’s death and the blows of Cogdill were clearly insufficient to 

cause the death. See id. The jury could have rationally found that Mr. Warren’s death would not 

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have occurred but for Cogdill’s conduct as an actor, operating alone or concurrently with another 

party to the crime. 

Cogdill’s Culpability as a Party

Even if we were to hold the evidence was legally insufficient to prove Cogdill guilty of the 

offense as a principal, we hold the State nevertheless presented evidence sufficient for a rational 

trier of fact to find Cogdill guilty as a party to the offense. Section 7.01(a) of the Texas Penal 

Code provides that “[a] person is criminally responsible as a party to an offense if the offense is 

committed by his own conduct, by the conduct of another for which he is criminally responsible, 

or by both.” Id. § 7.01(a). Subsection (b) provides that each party to the offense may be charged 

with the offense. Id. § 7.01(b). A person is “criminally responsible” for an offense committed by 

the conduct of another if, “acting with intent to promote or assist the commission of the offense, 

he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.” 

Id. § 7.02(a)(2). 

Cogdill’s admissions establish his intent to assist in the offense. Before leaving for Mr. 

Warren’s trailer, and before any alleged threats were made, Cogdill knew the trio was going to 

burglarize the trailer or commit a robbery in the event Mr. Warren was home. He also knew the 

plan included knocking Mr. Warren out in the event he was home and awake. Cogdill knew his 

companions had killed people in the past. He also knew weapons were placed in the vehicle. 

As detailed above, Cogdill entered the bedroom with Milne, each standing beside the bed 

where Mr. Warren was sleeping. When Milne gave Cogdill the wrench, Cogdill struck Mr. Warren 

several times. Mr. Warren’s blood was found on Cogdill’s shirt. Cogdill admitted he was present 

when Milne beat Mr. Warren with his fists and then with the same wrench used by Cogdill. 

The evidence noted above is legally sufficient to establish Cogdill’s guilt in this case as a 

party. The jury could have concluded Cogdill’s initial striking of Mr. Warren was in aid of the 

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robbery or burglary, as well as the murder. Although Cogdill consistently claimed Milne beat Mr. 

Warren to death, he admitted that he too struck Mr. Warren with the crescent wrench. Bludgeoning 

a person with a crescent wrench naturally assists a third party’s murder of the same person when 

it occurs during the same event. Moreover, Cogdill admitted removing property belonging to Mr. 

Warren from the trailer and placing it in the vehicle used by the trio. Accordingly, we hold the 

jury could have found Cogdill aided Milne, “with intent to promote or assist the commission of 

the offense.” Id. 

Cogdill’s Culpability as a Conspirator

Finally, even if we determined the evidence was legally insufficient to find Cogdill guilty 

of the offense of capital murder as a principal or a party, the evidence was certainly sufficient to 

find him guilty of the offense as a conspirator. Section 7.02(b) of the Penal Code states: “If, 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.” Id. § 7.02(b). A 

person participates in a criminal conspiracy “if, with intent that a felony be committed: (1) he 

agrees with one or more persons that they or one or more of them engage in conduct that would 

constitute an offense; and (2) he or one or more of them performs an overt act in pursuance of the 

agreement.” Id. § 15.02(a). 

It is undisputed that Cogdill, Bukowski, and Milne agreed to burglarize Mr. Warren’s 

trailer or rob Mr. Warren if he was home. In his interview with investigators, Cogdill even 

admitted the men intended to “knock” Mr. Warren out if he was awake or awoke during the 

burglary or robbery. In fact, in every version of events proffered by Cogdill, from the e-mail to 

his oral and written statements, Cogdill consistently admits he went with Bukowski and Milne to 

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Mr. Warren’s trailer with the intent to commit a felony, i.e., to take property belonging to Mr. 

Warren. Cogdill did this despite knowledge that the other men had admittedly killed people in the 

past. He admitted the men brought weapons with them, admitted he and Milne struck Mr. Warren 

about the head and shoulders until he was dead, and admitted the three of them left with property 

stolen from the residence. 

The laptop computer stolen from Mr. Warren’s trailer was found in Bukowski’s car, and 

the stolen television set and guitar were found in Bukowski’s residence. And, as noted above, 

Cogdill’s bloody t-shirt, containing Mr. Warren’s blood, placed Cogdill at the scene of the crime. 

Based on Cogdill’s various admissions and the corresponding physical evidence, the jury 

may have reasonably believed Cogdill not only agreed and intended to engage in conduct 

constituting a felony offense, i.e. burglary, robbery, and perhaps assault, but also he and others 

performed overt acts in pursuance of the agreement: traveling to Mr. Warren’s trailer, entering the 

trailer without permission, removing Mr. Warren’s property from the trailer without permission, 

and striking Mr. Warren with fists and a crescent wrench. The jury could have rationally concluded 

one or more of the men murdered Mr. Warren in the course of committing the underlying felony 

of burglary or robbery by bludgeoning Mr. Warren with the crescent wrench. Because the murder 

of Mr. Warren was a foreseeable result of the plan agreed to by Cogdill — particularly given what 

he knew about his companions — a rational trier of fact could have could have found Cogdill 

guilty of capital murder as a conspirator. As a conspirator in the felony offenses of burglary or 

robbery, Cogdill was guilty of capital murder even if he did not intend to kill Mr. Warren. See id. 

Cogdill’s Affirmative Defense of Duress

Cogdill contends the evidence was sufficient to establish his affirmative defense of duress. 

Accordingly, the jury should not have found him guilty of the offense of capital murder. In support 

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of this contention, Cogdill argues that because the evidence of duress was uncontroverted, the jury 

had no choice but to find in his favor on this defensive issue. We disagree. 

Duress is an affirmative defense that requires the defendant to prove he committed the 

offense “because he was compelled to do so by threat of imminent death or serious bodily injury 

to himself or another.” Id. § 8.05(a). It is, on its face, a confession-and-avoidance or justification 

defense because it does not negate any element of the offense, including intent, but rather excuses 

what would otherwise constitute criminal conduct. Rodriguez v. State, 368 S.W.3d 821, 824 (Tex. 

App.—Houston [14th Dist.] 2012, no pet.); see Walters v. State, 247 S.W.3d 204, 209 n.20 (Tex. 

Crim. App. 2007) (noting duress is a defense to conviction). The defendant has the burden to 

prove duress by a preponderance of the evidence. See TEX. PENAL CODE ANN. § 2.04(d) (West 

2011). We find there are two problems with Cogdill’s duress argument. 

First, it is black letter law that a defendant cannot establish that an act is justified without 

first admitting to the act itself. Rodriguez, 368 S.W.3d at 824. “A defendant’s failure to testify, 

stipulate, or otherwise proffer defensive evidence admitting that he ‘engaged in the proscribed 

conduct’ prevents the defendant from benefitting from the defense of duress.” Id. (citing Shaw v. 

State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007) (holding defendant is entitled to jury 

instruction on justification defense only when his defensive evidence essentially admits to every 

element of offense, including culpable mental state)). Here, Cogdill did not submit evidence that 

he committed the capital murder. Rather, Cogdill’s admissions, such as they were, came from 

evidence introduced by the State. Although Cogdill attempted to introduce evidence from a 

cellmate of Bukowski’s to establish Bukowski’s threats, the evidence was excluded on hearsay 

grounds. Accordingly, Cogdill neither testified, stipulated, nor proffered defensive evidence 

admitting to his commission of the offense of capital murder. Accordingly, he was not entitled to 

a duress instruction in the first instance. 

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Second, even though Cogdill’s claim that Bukowski threatened to kill him if he backed out 

or ran away — as set out in the evidence submitted by the State — was uncontroverted, the jury 

was not compelled to believe Cogdill. The only evidence that Bukowski threatened Cogdill with 

imminent death or serious bodily injury came from Cogdill himself. As set out in the standard of 

review, “the jury is the sole judge of the credibility of witnesses and the weight to be given to their 

testimonies.” Montgomery, 369 S.W.3d at 192; Rios, 230 S.W.3d at 255. Moreover, the jury may 

choose to believe all, some, or none of the evidence presented by the parties. Chambers v. State, 

805 S.W.2d 459, 461 (Tex. Crim. App. 1991); Rios, 230 S.W.3d at 255. 

It is clear from Cogdill’s various statements — the e-mail, the videotaped interview, the 

written statement — that his claims were fluid, changing when he was confronted with additional 

information or was subject to additional questions from authorities. It would have been completely 

rational for the jury to find his claim of duress unbelievable given that it appeared Cogdill’s intent 

was to place himself in the best light possible under the circumstances. Accordingly, we hold the 

jury was entitled to disbelieve Cogdill’s claims of duress — even if it believed other portions of 

his recorded and written statement. We therefore overrule Cogdill’s contention regarding the 

defense of duress. 

Hearsay

In his hearsay issue, Cogdill argues the trial court erred in excluding testimony from Wise 

— a former neighbor of Bukowski’s who ended up in a cell next to Bukowski after Bukowski was 

arrested for the murder of Mr. Warren — regarding Bukowski’s claim that Bukowski used a 

shotgun to force Cogdill and Milne to murder Mr. Warren. Cogdill argues the evidence should 

not have been excluded based on the State’s hearsay objection because the excluded statement was 

one showing Bukowski’s state of mind and emotion, which is an exception to the hearsay rule. 

See TEX. R. EVID. 803(3). Again, we disagree. 

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Standard of Review

A trial court’s ruling on the admissibility of evidence is subject to an abuse of discretion 

standard of review. Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006); Kelley v. 

State, 22 S.W.3d 642, 644 (Tex. App.—Waco 2000, pet. ref’d). A reviewing court will not reverse 

a trial court’s ruling on the admissibility of evidence so long as it falls within the zone of reasonable 

disagreement. Id. We would err in applying the standard of review if we reversed a trial court’s 

decision on admissibility of evidence solely because we disagreed with it. Rodriguez, 203 S.W.3d 

at 841. 

Application

Here, Cogdill sought to introduce evidence from one of Bukowski’s cellmates, Wise. 

Bukowski was arrested the afternoon following the murder. At some point following his arrest, 

he shared a cell with Wise. According to Wise, at some point after his arrest, Bukowski told Wise 

he used a shotgun to force Cogdill and Milne to kill Mr. Warren. Cogdill sought to introduce the 

following testimony from Wise:

Mr. Bukowski told me that the night that — that all three of them, they went out to 

the — to the guy’s house. He said that — that at first he had told Mr. Cogdill and 

Mr. Isaac Milne that it was just to go out there to rob the guy of some laptops, some 

computer software, and some musical instruments and stuff. He said whenever 

they got there he said — he said the guy that they went to rob used to be an old 

roommate of his and said that he told them that the guy was a convicted pedophilier 

(sic), and whenever they got out there he pulled a shotgun from his trunk, he held 

it on Mr. Cogdill and Mr. Milne and forced them to proceed with the – with the 

murder. 

The State objected to Wise’s testimony, arguing it was hearsay. Cogdill asserted the 

statement was subject to an exception to the hearsay rule, specifically Rule 803(3) of the Texas 

Rules of Evidence. The trial court disagreed with Cogdill and sustained the State’s objection. The 

jury never heard Wise’s testimony. 

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“‘Hearsay’ is a statement, other than the one made by the declarant while testifying at the 

trial or hearing, offered in evidence to prove the truth of the matter asserted.” TEX.R.EVID. 801(d). 

Hearsay is inadmissible unless a statute or rule of evidence permits its admission. Id. R. 802. Rule 

803(3), entitled “Then Existing Mental, Emotional, or Physical Condition,” sets out one exception 

to the hearsay rule. See id. R. 803(3). Under this rule, “[a] statement of the declarant’s then 

existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, 

design, mental feeling, pain, or bodily health)” is not hearsay. Id. However, this exception does 

not include “a statement of memory or belief to prove the fact remembered or believed unless it 

relates to the execution, revocation, identification, or terms of declarant’s will.” Id. 

Cogdill argued below, and argues here, that Wise’s testimony was admissible under the 

exception set out in Rule 803(3) because Wise’s testimony, “reveals Bukowski’s state of mind and 

the hate involved with the offense.” First, we disagree with Cogdill’s interpretation of Bukowski’s 

statement. The statements allegedly made by Bukowski are merely a rendition of the events that 

took place on the night of the murder, i.e., out-of-court statements of events that occurred, and as 

such are hearsay and not admissible under Rule 803(3). See Barnum v. State, 7 S.W.3d 782, 790–

91 (Tex. App.—Amarillo 1999, pet. ref’d) (holding that written statement that “Today I found the 

attached paper. The paper with figures was written by my husband . . .” was not admissible under 

Rule 803(3) because it was merely a rendition of events that occurred). 

Second, numerous courts have held that for the exception set forth in Rule 803(3) to apply, 

the statement must relate to future, not past, conduct. In Glover v. State, the defendant was 

convicted of aggravated sexual assault of a child. 102 S.W.3d 754, 758 (Tex. App.—Texarkana 

2002, pet. ref’d). The evidence showed the defendant, who was twenty-six, had sexual relations 

with the fourteen-year-old victim. Id. On appeal, the defendant complained about the introduction 

of certain testimony over his hearsay objection. Id. at 761. 

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During trial, the State sought to introduce testimony from a mother regarding statements 

her daughter allegedly made during a confrontation regarding the daughter’s relationship with the 

defendant. Id. 761–62. When the defendant objected, the State argued, among other things, that 

the testimony was admissible under Rule 803(3), and the trial court agreed. Id. at 762. On appeal, 

the court of appeals disagreed, holding the mother’s statements about what her daughter told her 

— I snuck out of the house, he picked me up last Sunday, he took me to his apartment, we had sex, 

we danced, we listened to music, we had sex on the floor, we used a condom — were merely a 

description of past facts, seeking to prove the defendant and the daughter had sexual relations. Id. 

The court held that evidence that seeks merely to establish a remembered fact is specifically 

excluded from the state of mind exception set out in Rule 803(3). Id. Moreover, the court held 

that to the extent the statements implicated the defendant’s intent, plan, motive, etc., they related 

to past conduct, not future conduct, as required for Rule 803(3) to apply. Id. at 762–63 (citing 

Jones v. State, 515 S.W.2d 126, 129 (Tex. Crim. App. 1974) (holding hearsay inadmissible under 

state of mind exception because statement did not reflect intent or motive for future action, but 

only discussed preceding events)); see also Hernandez v. State, 171 S.W.3d 347, 356 (Tex. App.—

Houston [14th Dist.] 2005, pet. ref’d). Accordingly, the appellate court held the trial court erred 

in admitting the statements based on Rule 803(3). Glover, 102 S.W.3d at 763. 

Wise’s testimony relating Bukowski’s statements is no different than that of the mother in 

Glover. His testimony describes statements allegedly made by Bukowski concerning actions 

allegedly undertaken by Bukowski in the past, not any future actions. As such, they are not 

admissible under the state of mind exception of Rule 803(3). Accordingly, we hold the trial court 

did not err in refusing to admit Wise’s testimony. 

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CONCLUSION

Based on the foregoing, we overrule Cogdill’s issues on appeal and affirm the trial court’s 

judgment.

Marialyn Barnard, Justice

Do Not Publish

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