COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-02-278-CR

WILLIAM MATTHEW SCHIFFERT APPELLANT

A/K/A JERRY SCHIFFERT

V.

THE STATE OF TEXAS STATE

------------

FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

------------

OPINION ON PETITION FOR DISCRETIONARY REVIEW

------------

After reviewing Appellant’s petition for discretionary review, we modify

our opinion and judgment in this appeal. See TEX. R. APP. P. 50. We withdraw

our November 21, 2007 opinion and judgment and substitute the following.

I. Introduction

A jury convicted Appellant William Matthew Schiffert a/k/a Jerry Schiffert

as a party to the murder of Corey McMillan, found habitual offender allegations
1... Schiffert v. State, 157 S.W.3d 491, 496, 499 (Tex. App.—Fort Worth

2004), rev’d and judgm’t vacated, 207 S.W.3d 800 (Tex. Crim. App. 2006).

2... 204 S.W.3d 404, 415-17 (Tex. Crim. App. 2006).

2

to be true, and assessed Appellant’s punishment at seventy-five years’

confinement. The trial court sentenced Appellant accordingly. On appeal,

Appellant raises four points: (1) the trial court egregiously erred in the parties

application paragraph of the jury charge by failing to require the State to prove

intent; (2) the evidence is legally and factually insufficient; (3) trial counsel was

ineffective; and (4) the trial court erred in the self-defense portion of the jury

charge.

In our original opinion and judgment, we held that the evidence was

legally sufficient but factually insufficient under the standards of review in

effect at the time.1 On November 22, 2006, the court of criminal appeals

vacated our opinion and judgment and remanded the case for reconsideration

in light of its opinion in Watson v. State,

2

in which it re-articulated the factual

sufficiency standard of review. Schiffert v. State, 207 S.W.3d 800, 801 (Tex.

Crim. App. 2006). Reconsidering the factual sufficiency point in light of

Watson, and reaching the remaining issues that we did not reach in our original

opinion, we affirm.
3

II. Background

Brandy Upchurch began dating McMillan in 1999. Soon after, they began

living together and eventually moved into the Budget Inn motel. According to

a statement that Appellant gave to the police, Appellant first met Upchurch

when he went to the motel to visit a friend. Upchurch told Appellant that she

could not come outside because her “old man [McMillan] would beat her.”

Appellant continued to talk to Upchurch whenever he went to the motel. 

Ultimately, Upchurch left McMillan and moved into Appellant’s trailer.

About a month later, Appellant arrived at the trailer and found Upchurch gone.

According to Upchurch, McMillan had found her in Appellant’s trailer, and after

he threatened her, she went back with him to the motel. The following day,

November 5, 2001, Upchurch called Appellant to come get her; she told him

that she had been kidnapped by McMillan and that she wanted Appellant to

come pick her up. Appellant and his nephew, Aaron Kennedy, went to the

motel to get her. 

In the meantime, after a confrontation with McMillan, Upchurch left the

motel on foot. She called Appellant and Kennedy, who picked her up in a

nearby restaurant parking lot. The three of them then drove back to the motel

parking lot. Upchurch first testified that their purpose in returning to the motel
3... Upchurch testified that Appellant attempted to run over McMillan

“when they were starting to fight, him and Aaron, and all he was trying to do

was stop them.” But Ward did not mention Appellant moving his car between

the time he stopped and the time he fled with Kennedy; instead, she testified

that Appellant was “smirking” at her during this period.

4

was to retrieve her clothes, but on cross-examination she testified she expected

to go to Appellant’s trailer, not back to the motel. 

GinnyLu Ward was in the parking lot of Enterprise Rent-A-Car, which

shares the lot with the motel, when the events transpired. According to Ward,

when Appellant drove into the motel parking lot, he “acted like [he] didn’t see

who [he was] looking for, and [then he] made a U-turn.” Upchurch testified

that Appellant stopped the car, called McMillan on the phone and said, “I’m

looking at your punk bitch now.” Soon afterwards, McMillan came out into the

parking lot. According to Ward, “[the driver] saw who [he was] looking for and

[he] gunned it, and when he gunned it, he lost control for just a moment and

hit [a] red truck.” The collision damaged the driver’s door of Appellant’s car;

Upchurch testified that they later had to pry the door open. Upchurch also

admitted on cross-examination that she told the prosecutor before trial that

Appellant tried to run over McMillan at some point during the incident.3

Ward testified that Appellant parked his car twelve to fifteen inches

behind McMillan’s car in such a way that McMillan’s car could not have pulled
5

out without hitting Appellant’s car. Kennedy then jumped out of the car and

began stabbing McMillan. Ward testified that, as Kennedy stabbed McMillan,

McMillan said, “[W]hat the hell are you doing?” and “[W]hy are you here?”

Ward said that as Kennedy was stabbing McMillan, Appellant turned to her and

“smirked.”

Kennedy got back in the car, and Appellant quickly drove away. As the

car left the lot, Upchurch looked back; she saw McMillan’s hand over his throat

and blood on his shirt. 

Officer Michael McGuire was dispatched to the motel, where he found

McMillan, who was bleeding and appeared to have been stabbed in the left side

of his neck and on the left side of his chest. McMillan was taken to the

hospital, where he later died. Detective Tim Gilpin was also dispatched to the

scene. Witnesses gave him the license number of the car Appellant was

driving; he ran the license and learned the car was registered to Appellant.

The day after McMillan’s death, Officer Richard Curtis, who was assigned

to the Crime Scene Search Unit, was dispatched to an apartment complex after

a search warrant had been obtained for Appellant’s vehicle. Police found the

car at the complex and impounded it. While examining the car, Curtis stated

that he had trouble getting the driver’s-side door open; the door would open
6

only about twelve inches. There was one license plate on the car, but it was

not registered to the car. 

Upchurch said that, in the days following McMillan’s death, she saw

Appellant, and he and Kennedy tried to stay separate from each other. She also

stated that she heard Appellant discuss leaving town because he was on parole

and he was afraid that the police would be looking for him. 

On November 9, 2001, Officer Benjamin Jones was on patrol when he

saw a car with a brake light out. He pulled the car over and asked for

identification, but the driver had none. The driver gave his name as “Michael

Smith.” Officer Kenneth Stack arrived on the scene after Jones had stopped

the car. Based on a photo that he had seen earlier that day, Stack recognized

Appellant as the driver. According to Stack, when he showed the photo to

Appellant, Appellant said, “You got me.” 

According to Deputy Medical Examiner Daniel Konzelmann, McMillan’s

body had two distinct stab wounds, one on the chest and one on the neck.

The neck wound was not lethal because it did not cross any vital structures.

The wound to the chest was lethal because it went into the heart. Konzelmann

saw no defensive wounds on McMillan’s upper arms or hands and no signs

indicating a prolonged struggle.
7

III. Charge Error: The Law of Parties

In his first point, Appellant argues that the trial court erred by misstating

the law of parties in the application paragraph of the jury charge and that the

error caused Appellant egregious harm.

A. Standard of review

Appellate review of error in a jury charge involves a two-step process.

Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, we

must determine whether error occurred. If so, we must then evaluate whether

sufficient harm resulted from the error to require reversal. Id. at 731–32. If

there is error in the court’s charge but the appellant did not object to it at trial,

we must decide whether the error was so egregious and created such harm that

appellant did not have a fair and impartial trial—in short, that “egregious harm”

has occurred. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)

(op. on reh’g); see TEX. CODE CRIM. PROC. ANN. art. 36.19 (Vernon 1981); Hutch

v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). Jury charge error is

egregiously harmful if it affects the very basis of the case, deprives the

defendant of a valuable right, or vitally affects a defensive theory. Stuhler v.

State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007); Hutch, 922 S.W.2d at

171.
8

When examining the record to determine whether jury-charge error is

egregious, the reviewing court should consider the entirety of the jury charge

itself, the evidence, including the contested issues and weight of the probative

evidence, the arguments of counsel, and any other relevant information

revealed by the record of the trial as a whole. Stuhler, 218 S.W.3d at 719;

Bailey v. State, 867 S.W.2d 42, 43 (Tex. Crim. App. 1993); Almanza, 686

S.W.2d at 171. The purpose of this review is to illuminate the actual, not just

theoretical, harm to the accused. Almanza, 686 S.W.2d at 174. Egregious

harm is a difficult standard to prove and must be determined on a case-by-case

basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002); Hutch,

922 S.W.2d at 171.

B. The charge

The Texas Penal Code states 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.” TEX.

PENAL CODE ANN. § 7.01(a) (Vernon 2005). Criminal responsibility is defined

several ways, one of which is that the defendant, “acting with intent to

promote or assist the commission of the offense . . . solicits, encourages,

directs, aids, or attempts to aid the other person to commit the offense.” Id.

§ 7.02(a)(2). 
9

The abstract portion of the charge submitted to the jury stated, in

relevant part:

All persons are parties to an offense who are guilty of acting

together in the commission of the offense. 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 whom he is

criminally responsible, or by both.

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. Mere

presence alone will not constitute one a party to an offense.

The application portion of the jury charge stated, in relevant part, that the jury

was authorized to find Appellant guilty of murder if it found that

Aaron Kennedy did . . . intentionally with the intent to cause

serious bodily injury to Corey McMillan, commit an act clearly

dangerous to human life, namely, to stab him with a knife, which

caused the death of an individual, Corey McMillan, and you further

find that the Defendant, William Matthew Schiffert, acted with

intent to solicit, encourage, direct, aid, or attempt to aid Aaron

Kennedy in the commission of the offense . . . . 

Thus, while the abstract portion of the charge tracked the language of section

7.02(a)(2), the application portion did not. Appellant did not object to this

discrepancy at trial.

C. Analysis

Although the charge erroneously failed to track the language of penal

code section 7.02(a)(2), we hold that Appellant cannot show egregious harm
10

because the charge required affirmative jury findings on the same elements as

those recited in the penal code. See Almanza, 686 S.W.2d at 171.

The elements of party liability under penal code section 7.02(a)(2) are (1)

acting with intent that the offense be committed, (2) the defendant solicits,

encourages, directs, aids, or attempts to aid (3) another person to commit an

offense. TEX. PENAL CODE ANN. § 7.02(a)(2). The charge authorized the jury to

find Appellant guilty as a party if he (1) acted with intent (2) to solicit,

encourage, direct, aid, or attempt to aid (3) Kennedy in the commission of the

offense. The order of the words is different, but the meaning is the same: the

jury could not find Appellant guilty as a party unless it found that he intended

the commission of McMillan’s murder. The charge required the jury to find that

Appellant committed some act intended to solicit, encourage, direct, aid, or

attempt to aid in McMillan’s murder; section 7.02(a)(2) requires the same

findings. Though the words “acted with intent” are separated from the words

“commission of the offense” in the charge, the former modify the latter. 

Stated differently, the phrase “acting with intent to promote or assist the

commission of the offense” in the penal code has the same practical meaning

and requires the same findings as the phrase “acted with the intent to solicit,

direct, aid, or attempt to aid . . . the commission of the offense” in the charge.

The words “solicit” and “direct” are roughly synonymous with the word
4... This analysis provokes the question of why the legislature included

both the phrase “acting with intent to promote or assist the commission of the

offense” and the phrase “solicits, directs, aids, or attempts to aid the other

person to commit the offense” in section 7.02(a)(2)’s definition of party

liability. One reason is that in some situations, an actor may aid another in the

commission of an offense without intending that an offense be committed if the

actor does not know the other’s conduct is an offense; under that

circumstance, the actor is not a party to the offense. See, e.g., Amaya v.

State, 733 S.W.2d 168, 175 (Tex. Crim. App. 1986) (holding defendants could

not be guilty as parties when the State failed to show they “knew the

criminality of the conduct they assisted”). Such lack of knowledge is not a

factor in a murder prosecution like this one. See id. at 174 (“[Murder] is

conduct that by its very nature supplies proof of the parties’ knowledge that it

is ‘criminal.’”).

11

“promote,” and the word “aid” is closely synonymous with the word “assist.”

Thus, while the charge reordered the words used in the statute, the intent

required by the charge is the same as the intent required by the statute.4

Because the charge’s application paragraph required the jury to find the

same elements of party liability listed in section 7.02(a)(2), we hold the error

did not cause egregious harm to Appellant, and we overrule his first issue.

IV. Charge Error: Self Defense

In his fourth point, Appellant argues the trial court erred by submitting an

erroneous self-defense instruction to the jury. The State argues that even if the

charge was erroneous, Appellant did not suffer egregious harm because no

rational jury could have found that Appellant or Kennedy acted in self-defense.
12

A. The self-defense instruction

The trial court’s instruction on self-defense reads, in pertinent part, as

follows:

Now if you find from the evidence beyond a reasonable doubt

that the said Defendant, William Matthew Schiffert or Aaron

Kennedy, did stab Corey McMillan with a deadly weapon . . . but

you further find from the evidence, as viewed from the standpoint

of the Defendant at the time, that from the words or conduct, or

both, of Corey McMillan, it reasonably appeared to the Defendant

that his life or person was in danger and there was created in his

mind a reasonable expectation of fear or death or serious bodily

injury from the use of unlawful deadly force at the hands of Corey

McMillan, and that acting under such apprehension and reasonably

believing that the use of deadly force on his part was immediately

necessary to protect himself against Corey McMillan’s use or

attempted use of unlawful deadly force, he stabbed Corey McMillan

with a knife, and that a reasonable person in the Defendant’s

position would not have retreated, then you should acquit the

[D]efendant on the grounds of self-defense, or, if you have a

reasonable doubt as to whether or not the Defendant was acting in

self-defense on the said occasion and under the circumstances,

then you should give the Defendant the benefit of the doubt and

say by your verdict not guilty. [Emphasis added.] 

Appellant did not object to the instruction at trial.

B. Analysis

Appellant argues that the charge erroneously instructed the jury that it

could find Appellant not guilty by reason of self-defense only if it found that

Appellant stabbed McMillan because he reasonably believed that his own life

was in danger. Because it is undisputed that Appellant remained in the car
13

while Kennedy confronted and killed McMillan, we agree with Appellant that the

charge was erroneous; but we also agree with the State that the error did not

cause Appellant egregious harm because no reasonable jury, even if properly

instructed, could have found beyond a reasonable doubt that Kennedy killed

McMillan in self-defense.

We first consider the entirety of the jury charge itself and the state of the

evidence. See Stuhler, 218 S.W.3d at 719. The charge properly instructed the

jury that an actor’s use of deadly force against another in self-defense is

justified only when the actor reasonably believes deadly force is immediately

necessary to protect the actor or a third person from the other’s use or

attempted use of deadly force. TEX. PENAL CODE ANN. §§ 9.32 (Vernon Supp.

2007), 9.33 (Vernon 2003). “Deadly force” means force that is intended or

known by the actor to cause, or in the manner of its use or intended use is

capable of causing, death or serious bodily injury. Id. § 9.01. The charge also

instructed the jury that the use of deadly force is not justified if an actor

provokes another’s use or attempted use of deadly force by some act or

language. See id. § 9.31(b)(4).

Brandy Upchurch testified that immediately before the altercation,

Appellant telephoned McMillan and said, “I’m looking at your punk bitch now,”

and that those were “fighting words.” Upchurch and GinnyLu Ward both
14

testified that McMillan had nothing in his hands when he came out of the motel

room. Upchurch testified that McMillan struck Kennedy with his fist, and

Appellant said the same thing in his written statement to police. Considering

the state of the evidence, a reasonable jury properly instructed on the issue of

self-defense could not have found that Kennedy was justified in using deadly

force against McMillan; Appellant provoked the altercation, and even

Appellant’s and Upchurch’s descriptions of the fight show that McMillan did not

use or attempt to use deadly force against Kennedy. Thus, Appellant has

shown at most theoretical harm, not actual harm, flowing from the erroneous

self-defense charge. See Almanza, 686 S.W.2d at 174.

We therefore hold that Appellant was not egregiously harmed by the

erroneous instruction, and we overrule his fourth point.

V. Legal Sufficiency

In his second point, Appellant claims that the evidence presented at trial

is legally insufficient to support his conviction.

A. Standard of Review

When reviewing the legal sufficiency of the evidence to support a

conviction, we view all the evidence in the light most favorable to the verdict

in order to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v.
15

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Burden v. State,

55 S.W.3d 608, 612 (Tex. Crim. App. 2001). This standard gives full play to

the responsibility of the trier of fact to resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to

ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. When

performing a legal sufficiency review, we may not sit as a thirteenth juror, reevaluating the weight and credibility of the evidence and, thus, substituting our

judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740

(Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000).

When a jury returns a general verdict and the evidence is sufficient to

support a guilty finding under any of the allegations submitted, the verdict will

be upheld. Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003);

Tippitt v. State, 41 S.W.3d 316, 323 (Tex. App.—Fort Worth 2001, no pet.).

Thus, we apply the legal sufficiency standard of review to each theory

submitted to the jury in the court’s charge. Rabbani v. State, 847 S.W.2d 555,

558 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 926 (1993); Tippitt, 41

S.W.3d at 323.

Sufficiency of the evidence should be measured by the elements of the

offense as defined by the hypothetically correct jury charge for the case. Malik

v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). This hypothetical
16

charge accurately sets out the law, is authorized by the indictment, does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the

State’s theories of liability, and adequately describes the particular offense for

which the defendant was tried. Id.

B. Analysis

Appellant was driving the car when he, Kennedy, and Upchurch arrived

at the motel. According to a witness, Appellant seemed to be looking for

someone as he drove through the parking lot. Appellant called McMillan from

his car and told him, “I’m looking at your punk bitch now.” When he saw

McMillan, he “gunned” the car. Appellant subsequently parked behind

McMillan’s car, and then Kennedy jumped out of the car and began stabbing

McMillan. The jury could rationally have inferred that Appellant’s focus was on

McMillan, rather than getting Upchurch’s belongings, and that Appellant used

what Upchurch conceded were “fighting words” toward McMillan. Moreover,

a rational jury could conclude that by parking behind McMillan’s car, Appellant

wanted to ensure that McMillan did not leave the area.

Given all this evidence, as well as the speed with which Kennedy jumped

from Appellant’s car and began stabbing McMillan, a rational jury could

conclude that Appellant acted with the intent to assist Kennedy in the stabbing

of McMillan, and that he solicited, encouraged, directed, aided, or attempted
17

to aid Kennedy in the stabbing of McMillan. Thus, viewing the evidence in the

light most favorable to the verdict, we find that a rational jury could have found

beyond a reasonable doubt that Appellant was guilty of murder as a party. We

overrule the legal sufficiency portion of Appellant’s second point.

VI. Factual Sufficiency

A. Standard of Review

In our original opinion in this appeal, our factual sufficiency review was

largely guided by the standard articulated by the court of criminal appeals in

Zuniga v. State, as follows:

[T]here are two ways in which the evidence may be insufficient.

First, when considered by itself, evidence supporting the verdict

may be too weak to support the finding of guilt beyond a

reasonable doubt. Second, there may be both evidence supporting

the verdict and evidence contrary to the verdict. Weighing all the

evidence under this balancing scale, the contrary evidence may be

strong enough that the beyond-a-reasonable-doubt standard could

not have been met, so the guilty verdict should not stand. This

standard acknowledges that evidence of guilt can “preponderate”

in favor of conviction but still be insufficient to prove the elements

of the crime beyond a reasonable doubt.

144 S.W.3d 477, 481 (Tex. Crim. App. 2004), overruled by Watson, 204

S.W.3d at 417. In Watson, the court disavowed and overruled Zuniga’s

articulation of the standard of review:

Any holding that a criminal appellate court can reverse and remand

for a new trial even when the evidence “preponderates” in favor of
18

a conviction is inconsistent with that historically required high level

of skepticism.

. . . We therefore disavow such language in Zuniga and

reiterate that it is not enough that the appellate court harbor a

subjective level of reasonable doubt to overturn a conviction that

is founded on legally sufficient evidence. An appellate court judge

cannot conclude that a conviction is “clearly wrong” or “manifestly

unjust” simply because, on the quantum of evidence admitted, he

would have voted to acquit had he been on the jury. . . . We have

always held that an appellate court must first be able to say, with

some objective basis in the record, that the great weight and

preponderance of the (albeit legally sufficient) evidence contradicts

the jury’s verdict before it is justified in exercising its appellate fact

jurisdiction to order a new trial.

Watson, 204 S.W.3d at 417. The court restated the standard of review in

factual sufficiency cases as follows:

[F]actual-sufficiency analysis [comprises] two prongs. The first

prong asks whether the evidence introduced to support the verdict,

though legally sufficient, is nevertheless “so weak” that the jury’s

verdict seems “clearly wrong and manifestly unjust[.]” The second

prong asks whether, considering conflicting evidence, the jury’s

verdict, though legally sufficient, is nevertheless against the great

weight and preponderance of the evidence. 

Id. at 414–15 (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App.

2000)).

To make this determination, we consider all of the evidence in a neutral

light, favoring neither party. Id. at 414. It is not enough that this court “harbor

a subjective level of reasonable doubt to overturn [the] conviction.” Id. We

cannot conclude that a conviction is clearly wrong or manifestly unjust simply
19

because we would have decided differently than the jury or because we

disagree with the jury’s resolution of a conflict in the evidence. Id. We may

not simply substitute our judgment for the fact-finder’s. Johnson, 23 S.W.3d

at 12. Unless the record clearly reveals that a different result is appropriate, we

must defer to the jury’s determination of the weight to be given contradictory

testimonial evidence because resolution of the conflict “often turns on an

evaluation of credibility and demeanor, and those jurors were in attendance

when the testimony was delivered.” Id. at 8. Thus, we must give due

deference to the fact-finder’s determinations, “particularly those determinations

concerning the weight and credibility of the evidence.” Id. at 9.

B. Analysis

In this appeal, the difference between the standard of review articulated

by Zuniga and the one articulated by Watson compels a different outcome. In

our original opinion, we applied the first prong of the Zuniga standard and held

“all of the evidence in the instant case . . . that could legally support a rational

jury’s conclusion is nevertheless so weak when viewed in a neutral light that

our confidence in the verdict is undermined.” Schiffert, 207 S.W.3d at 498.

But applying the first prong of the Watson test, we cannot say that “the

evidence introduced to support the verdict, though legally sufficient, is

nevertheless ‘so weak’ that the jury’s verdict seems ‘clearly wrong and
20

manifestly unjust[.]’“ Watson, 204 S.W.3d at 414–15 (quoting Johnson, 23

S.W.3d at 11) (emphasis added).

The jury heard three versions of the events surrounding McMillan’s death:

GinnyLu Ward’s, Brandy U pchurch’s , and—via his written

statement—Appellant’s.

Ward testified that Appellant drove his car into the Budget Inn parking lot,

“acted like they didn’t see who they were looking for, and they made a U-turn.”

While making the turn, “they saw who they were looking for and the driver

gunned it,” lost control, and hit a red truck. Appellant then parked his car at

an angle behind McMillan’s, and the passenger jumped out and began slashing

at McMillan. McMillan said, “What the hell are you doing?” and “Why are you

here?” as his assailant slashed at him. Meanwhile, Appellant looked at Ward

and smirked. The passenger then jumped back into the car, and Appellant sped

away. Ward estimated that the incident lasted “a minute, minute and a half,

two tops.” She said she was standing fifteen feet from Appellant’s car during

the altercation. 

Upchurch testified that on the morning of McMillan’s death, she moved

her belongings out of his motel room and into the next-door neighbor’s, where

she telephoned Appellant to come and get her. She walked away from the

motel, and Appellant and Kennedy picked her up in a nearby restaurant parking
21

lot. Instead of driving to Appellant’s trailer, as Upchurch expected, Appellant,

Kennedy, and Upchurch drove back to the motel, ostensibly to retrieve

Upchurch’s clothes. Appellant drove through the parking lot so that the

passenger door would be facing the motel room door, allowing Kennedy—whom

McMillan did not know—to jump out and retrieve Upchurch’s clothes. As he

drove, Appellant placed a cell phone call to McMillan and said, “I’m looking at

your punk bitch now.” Appellant collided with the red truck, then drove around

the parking lot and stopped the car by the door to the motel room where

Upchurch had put her clothes. Kennedy jumped out of the car and stood in

front of it. McMillan came out of his motel room and tried to open Appellant’s

car door, but it was locked. Appellant and McMillan argued through the car

window, and Kennedy told McMillan to go back inside. McMillan then grabbed

and hit Kennedy, and Upchurch saw Kennedy “swinging on him.” She said the

fight lasted “a minute or two, a couple of seconds, something like that.”

Kennedy got back in the car, and Appellant drove away. Upchurch admitted

that her recollection was “fuzzy” because she “did a lot of drugs back then,”

“things keep changing within [her] head,” and she was confused as to what

actually took place. She admitted that she gave police a written statement in

which she stated that Appellant tried to get out of the car when McMillan came

out of the motel room. 
22

In his written statement to police, Appellant wrote that McMillan came

out of the motel, Kennedy “got out of the car as soon as he got in range,”

McMillan hit Kennedy in the face, and Kennedy “panicked and pulled out a knife

and stuck him[.] He dived in the car and we left.” 

In addition to the three eyewitness accounts, the testimony of the

medical examiner is relevant to our analysis. The medical examiner testified

that McMillan had no defensive wounds such as cuts or bruises on his arms or

hands and there was no indication that he had struck someone recently. 

Appellant is guilty, if at all, as a party to McMillan’s killing because the

undisputed evidence shows that Kennedy actually stabbed the victim.

Appellant performed acts that aided Kennedy in the commission of the offense,

namely, placing the taunting phone call to McMillan, driving Kennedy “in range”

of McMillan, and driving Kennedy away from the scene. The key question,

therefore, is whether he performed those acts with the intent to promote or

assist McMillan’s killing. See TEX. PENAL CODE ANN. § 7.02(a). Stated in terms

of the factual sufficiency standard of review, the question is whether the

evidence of Appellant’s intent is so weak as to seem “clearly wrong and

manifestly unjust.” See Watson, 204 S.W.3d 414–15.

The evidence that supports the jury’s finding that Appellant intended to

promote or assist in McMillan’s killing is as follows: Instead of driving
23

Upchurch to his trailer as Upchurch expected, he drove back to the motel. He

made a loop through the parking lot as though—according to Ward—he was

looking for someone he could not find. Appellant then made a taunting phone

call to McMillan, which prompted McMillan to leave his motel room. Appellant

collided with another vehicle, then parked his car so that Kennedy was “in

range,” according to Appellant’s written statement. According to Ward,

Kennedy jumped out of the car and immediately slashed at McMillan;

meanwhile, Appellant looked at Ward and smirked. All three eyewitnesses

agree that Kennedy then jumped back into the car and Appellant sped away

from the scene.

The following evidence tends to support the conclusion that Kennedy

killed McMillan on the spur of the moment and weighs against a finding that

Appellant intended to promote or assist in McMillan’s death: Upchurch testified

that Appellant drove her back to the motel to retrieve her clothes and that he

drove in a loop through the parking lot to position Kennedy closer to the motel

room door so that he could run in and get her bags. Ward and Upchurch

estimated that the ensuing altercation lasted as long as two minutes, lending

some credence to Upchurch’s testimony that something more transpired than

Kennedy’s leaping out and stabbing McMillan as soon as the car stopped.
24

Appellant and Upchurch both asserted that Kennedy stabbed McMillan only

after McMillan struck him.

But other evidence contradicts the notion that McMillan initiated a

struggle that culminated in his death. First, Appellant’s taunting phone call to

McMillan contradicts Upchurch’s testimony that the plan was for

Kennedy—who was unknown to McMillan—to dash into the motel room and

retrieve her bags. Second, the medical examiner’s testimony that McMillan’s

corpse had no defensive wounds and showed no signs of having struck

someone recently contradicts the possibility of a prolonged struggle and

Appellant’s and Upchurch’s claim that McMillan hit Kennedy first. Finally,

Upchurch’s testimony that she was confused about what happened and “fuzzy”

from drug use diminishes the impact of her other testimony.

In his petition for discretionary review, Appellant points to other evidence

that he contends renders the verdict manifestly unjust. Upchurch testified that

her relationship with McMillan was violent, that he had coerced her with threats

into returning to the motel after he found her living in Appellant’s trailer, and

that he had said that he “had a bullet” for Appellant. A friend of McMillan’s

testified that she had seen McMillan shove Upchurch on one occasion and lift
5... Appellant’s representation that the witness testified that “on many

occasions she was witness to McMillan hitting Upchurch and lifting her up by

the throat” is not supported by the record. [Emphasis added.] 

25

her by the throat on another occasion.5 Ward testified that she saw McMillan

arguing with and shoving a white female in front of the Budget Inn fifteen to

twenty minutes before the stabbing. McMillan was older, larger, and heavier

than Kennedy. This is some evidence that McMillan had a propensity for

violence, but does not prove that he started the fight that resulted in his death;

nor is it so strong as to render the jury’s verdict clearly wrong or manifestly

unjust. See Watson, 204 S.W.3d at 414–15. 

A jury is responsible for resolving the conflicts in the evidence. Wesbrook

v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000), cert. denied, 532 U.S.

944 (2001). Further, a jury may believe some, all, or none of a witness’s

testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

Here, the jury resolved the conflicts in the evidence against Appellant.

Considering all of the evidence in a neutral light, we cannot say that it is so

weak that the jury’s verdict seems clearly wrong and manifestly unjust or,

considering conflicting evidence, the jury’s verdict is against the great weight

and preponderance of the evidence. Therefore, the evidence is factually

sufficient to support the jury’s verdict. See Watson, 204 S.W.3d 414–15.
26

In our original opinion, we analyzed in detail the evidence recounted in the

court of criminal appeals’s opinion in Vodochodsky v. State, 158 S.W.3d 502,

511 (Tex. Crim. App. 2005) (op. on reh’g). In that case, the court reversed for

factual insufficiency Vodochodsky’s conviction as a party to the slaying of three

peace officers. Id. The court decided Vodochodsky between its decisions in

Zuniga and Watson, but it did not cite Zuniga when articulating the applicable

standard of review. See id. at 510. The court cited Johnson for the

proposition that a court must “set aside the verdict if ‘proof of guilt is so

obviously weak as to undermine confidence in the jury’s determination . . . .’”

Id. (quoting Johnson, 23 S.W.3d at 11). Under Watson’s re-articulation of the

factual sufficiency test, a court is authorized to set aside a verdict only if “the

evidence introduced to support the verdict, though legally sufficient, is

nevertheless ‘so weak’ that the jury’s verdict seems ‘clearly wrong and

manifestly unjust[.]’“ Watson, 204 S.W.3d at 414–15 (quoting Johnson, 23

S.W.3d at 11). Though the court quoted Johnson in both Vodochodsky and

Watson, its emphasis in the latter case on Johnson’s “clearly wrong and

manifestly unjust” language instead of its “undermine confidence in the jury’s

determination” language calls into doubt the standard applied in Vodochodsky.

Therefore, we decline to apply the standard of review or reasoning articulated

in Vodochodsky and instead apply the standard of review articulated in Watson.
27

We hold that the evidence is factually sufficient to support the jury’s

verdict that Appellant, acting with intent to promote or assist Kennedy in the

stabbing death of McMillan, solicited, encouraged, directed, aided, or attempted

to aid Kennedy in the stabbing death of McMillan. We overrule the remainder

of Appellant’s second point.

VII. Ineffective Assistance

In his third point, Appellant agues his trial counsel rendered ineffective

assistance by failing to object to errors in the charge, by failing to request an

instruction on independent impulse and extraneous offenses, and by failing to

object to testimony that Appellant was “on parole.” 

A. Standard of review

To establish ineffective assistance of counsel, appellant must show by a

preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have

been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.

2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
28

When evaluating the effectiveness of counsel under the first prong, we

look to the totality of the representation and the particular circumstances of

each case. Thompson, 9 S.W.3d at 813. The issue is whether counsel’s

assistance was reasonable under all the circumstances and prevailing

professional norms at the time of the alleged error. See Strickland, 466 U.S.

at 688–89, 104 S. Ct. at 2065. Review of counsel’s representation is highly

deferential, and the reviewing court indulges a strong presumption that

counsel’s conduct fell within a wide range of reasonable representation.

Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at 63. To overcome the

presumption of reasonable professional assistance, “any allegation of

ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness.” Id. (quoting Thompson,

9 S.W.3d at 813). In the absence of direct evidence of counsel’s reasons for

the challenged conduct, we will assume a strategic motivation if any can be

imagined. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001), cert.

denied, 537 U.S. 1195 (2003). A full inquiry into the strategy or tactics of

counsel should be made only if, from all appearances after trial, there is no

plausible basis in strategy or tactics for counsel’s actions. See Johnson v.

State, 614 S.W.2d 148, 152 (Tex. Crim. App. [Panel Op.] 1981); Ex parte
29

Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980); Stenson v. State, 695

S.W.2d 569, 571 (Tex. App.—Dallas 1984, no pet.).

The second prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair trial, i.e., a trial

whose result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In

other words, appellant must show there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different. Id. at 694, 104 S. Ct. at 2068. A reasonable probability is a

probability sufficient to undermine confidence in the outcome. Id. The ultimate

focus of our inquiry must be on the fundamental fairness of the proceeding

whose result is being challenged. Id. at 697, 104 S. Ct. at 2070.

A reviewing court will rarely be in a position on direct appeal to fairly

evaluate the merits of an ineffective assistance claim. Thompson, 9 S.W.3d at

813–14. “In the majority of cases, the record on direct appeal is undeveloped

and cannot adequately reflect the motives behind trial counsel’s actions.”

Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). Often,

ineffective assistance claims are better raised within the framework of a postconviction writ of habeas corpus under article 11.07 of the code of criminal

procedure. TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon Supp. 2007); see

Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003) (“[T]he record
30

on direct appeal will generally ‘not be sufficient to show that counsel’s

representation was so deficient as to meet the first part of the Strickland

standard’ as ‘[t]he reasonableness of counsel’s choices often involves facts that

do not appear in the appellate record.’”); see also Bone v. State, 77 S.W.3d

828, 837 n.30 (Tex. Crim. App. 2002) (“This resolution in no way affects

appellant’s entitlement to re-urge this or other appropriate constitutional

complaints on a writ of habeas corpus.”).

B. Analysis

First, Appellant argues counsel was ineffective by failing to object to the

charge errors made the basis of his first and fourth points and discussed above.

The Almanza standard for egregious harm—charge error that deprived the

defendant of a fair trial—is essentially the same as the second prong of

Strickland—counsel’s error that deprived the defendant of a fair trial. Almanza,

686 S.W.2d at 171; Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. Having

already determined that the charge errors did not deprive Appellant of a fair

trial, we now hold that Appellant has failed to show that counsel’s failure to

object to those same charge errors deprived him of a fair trial.

Next, Appellant argues counsel was ineffective by failing to request a

charge instruction on independent impulse. There is no enumerated defense of

“independent impulse” in the penal code, and a trial court does not err by
31

refusing to give such an instruction. Solomon v. State, 49 S.W.3d 356, 368

(Tex. Crim. App. 2001). Therefore, Appellant cannot show that but for

counsel’s failure to request an independent impulse instruction, the jury would

have reached a different verdict.

Appellant also contends that counsel was ineffective by failing to request

a specific application of the acts relied on by the State to prove the “solicit,

encourage, direct, aid, or attempt to aid” element of party liability. Appellant

relies on Johnson v. State to support this contention. 739 S.W.2d 299, 305

(Tex. Crim. App. 1987). In Johnson, the court of criminal appeals held that the

trial court reversibly erred when it failed to explicitly apply the law of parties to

the facts of the case upon the defendant’s timely objection that the charge

failed “to allege the specific acts that the State is relying on to make [the

defendant] a party. It does not say depending on solicitation, encouragement,

direction, aid[,] or attempt to aid [the principal] in the commission of this

offense.” Id. at 300, 305. The court explained that “explicitly apply the law

of parties to the facts” means that a charge should inform the jury which

specific mode or modes of conduct enumerated in penal code section

7.02(a)(2), “solicited, encouraged, directed, aided, or attempted to aid,” formed

the basis for conviction as a party. Id. at 305 n.4.
32

In this case, the charge recited all of the modes enumerated in section

7.02(a)(2); this was sufficient to comply with Johnson. Johnson does not

require recitation of the specific acts relied on by the State to prove one or

more of those modes. Thus, Appellant has failed to show a reasonable

probability that but for his failure to request such a recitation, the result of the

proceeding would have been different.

Next, Appellant argues counsel was ineffective by (1) failing to object to

Brandy Upchurch’s unsolicited comment that Appellant wanted to get out of

town after the killing “because he was on parole” and (2) failing to request a

jury charge on extraneous offenses to mitigate the “on parole” statement. The

record is silent as to why counsel did not object to Upchurch’s statement or

request an extraneous offense instruction, but as the State points out, he could

have been motivated by sound trial strategy, namely, to avoid emphasizing or

calling the jury’s attention to Upchurch’s statement. Thus, in this instance,

Appellant has failed to satisfy the first half of the Strickland test. See

Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065; Garcia, 57 S.W.3d at

440.

Finally, Appellant contends counsel was ineffective by failing to object to

the charge’s application paragraph that allowed the jury to convict Appellant as

the principal actor in McMillan’s killing. We cannot see how the inclusion of
33

this language in the charge deprived Appellant of a fair trial. The undisputed

evidence showed that Appellant remained in the car while Kennedy stabbed

McMillan; thus, Appellant could only be guilty as a party, and the possibility

that the jury could have convicted Appellant as the principal is far fetched.

Thus, once again, Appellant has failed to show that but for counsel’s alleged

unprofessional conduct, the jury would have returned a different verdict.

Having determined that Appellant failed to establish at least one of the

Strickland prongs with regard to each of counsel’s alleged errors, we overrule

his third point.

VIII. Conclusion

Having overruled all of Appellant’s points, we affirm the trial court’s

judgment.

ANNE GARDNER

JUSTICE

PANEL A: CAYCE, C.J.; LIVINGSTON and GARDNER, JJ.

PUBLISH

DELIVERED: March 20, 2008