Nike Lee Johnson v. the State of Texas

Opinion filed November 14, 2025

In The

Eleventh Court of Appeals
__________

No. 11-24-00096-CR
__________

NIKE LEE JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 70th District Court
Ector County, Texas
Trial Court Cause No. A-21-1376-CR

MEMORANDUM OPINION
Appellant, Nike Lee Johnson, was indicted for the offenses of aggravated
robbery against Andrew Amoyaw, a first-degree felony (Count One), and aggravated
assault with a deadly weapon against Amoyaw, a second-degree felony (Count
Two). See TEX. PENAL CODE ANN. § 22.02(a)(2)(b) (West Supp. 2024), § 29.03(a),
(b) (West 2019). The jury found Appellant guilty of both offenses and assessed his
punishment at ten years’ imprisonment and twenty years’ imprisonment,
respectively, in the Institutional Division of the Texas Department of Criminal
Justice. The trial court sentenced him accordingly and ordered Appellant’s
sentences to be served concurrently.
Appellant challenges his convictions in three issues. In his first issue,
Appellant asserts that the trial court erred when it denied his motion for directed
verdict. In his second issue, Appellant asserts that the trial court erred when it denied
his request for funds to retain an expert in the field of DNA analysis. In his third
issue, Appellant asserts that he received ineffective assistance of counsel. We
affirm.
I. Factual Background
On the morning of April 7, 2021, Amoyaw exchanged multiple messages on
Snapchat with whom he believed was Claudia Perez; however, unbeknownst to
Amoyaw, Appellant was the person messaging him with Perez’s cell phone. During
their messaging, Amoyaw provided Perez with an address near his residence so that
they could meet in person to “have a smoke.” Appellant drove Perez to the provided
address. Once they arrived, Appellant parked “a couple of houses down” from
Amoyaw’s residence. Appellant instructed Perez to sit in the driver’s seat of the
vehicle while he positioned himself in the backseat.
Amoyaw then received a message from Perez’s cell phone asking him to come
outside and to “get in the passenger seat” of the vehicle. As Amoyaw approached
the vehicle, he noticed an individual—Appellant—wearing a black hoodie and a
black ski mask “pop up” from the backseat. Appellant pointed an “AR-15” rifle at
Amoyaw and asked Amoyaw if he “had anything” on him. In response, Amoyaw
said he did not “have anything” and offered Appellant a “blunt.” Amoyaw then
asked Perez to “tell [Appellant] that this is the first time [they were] meeting.”

2
At some point, Amoyaw’s roommate opened the garage door to leave for
work, which briefly distracted Appellant; Amoyaw then attempted to flee. Appellant
fired multiple rounds in the direction of Amoyaw as he fled, striking Amoyaw in the
arm and the lower right side of his back. Amoyaw continued to flee, and he later
called 9-1-1 to report the shooting and to request medical attention. Officer Kaaiako
Vavao of the Odessa Police Department responded to the shooting around 5:30 a.m.
and provided medical aid to Amoyaw. After an investigation, law enforcement
identified Appellant and Perez as suspects to the shooting.
A. Pretrial Motions and Hearings
On October 13, 2022, Appellant filed a motion for discovery and requested a
list of the State’s fact and expert trial witnesses. Four days later, the State filed its
original witness list; multiple supplemental notices of potential witnesses were
subsequently filed. On April 4, 2023, the State filed its fourth supplemental notice
of potential witnesses and identified Laura Baker as an expert in the field of DNA
analysis. The certificate of service for the State’s notice states that Appellant’s
attorney of record at the time, Tommy Hull, was served with the notice on April 3,
2023. On April 19, Hull filed a motion to withdraw as Appellant’s trial counsel,
which the trial court denied the next day. That same day, Appellant submitted a pro
se letter to the trial court (dated April 19) which stated that Appellant had terminated
Hull as his trial counsel. On April 26, Johanna Curry filed a motion to substitute
counsel, which the trial court granted on April 27.1

1
Appellant had previously been represented by three different attorneys: Mike Holmes, Michael
McLeaish, and Tommy Hull. At a pretrial hearing on April 8, 2024, Curry stated that she was “signed in
to counsel on this case on July 12, 2023.” Later, during Appellant’s trial, Curry was asked by the trial court
if she “[agreed] that [she was] on this case by [April 26, 2023]?” In response, Curry stated, “I can’t, but if
the record shows that date, then I was.”

3
Curry filed a motion for speedy trial on January 8, 2024, and an Ake 2 motion
to appoint a DNA expert on February 8, 2024. The trial court subsequently
scheduled a hearing on these motions. As relevant to this appeal, at this hearing, the
trial court addressed Curry’s Ake motion, and the following exchange occurred
between the trial court and the State’s counsel:
THE COURT: And is -- does the State have any DNA evidence
in this case?

[THE STATE]: Judge, I was looking for that. I don’t want to
make any representations.

THE COURT: Well, look into it.

[THE STATE]: Will do, Judge.

THE COURT: And find out, and I’ll take a look at this in a
couple of weeks.
The trial court informed Curry: “certainly if that’s an issue . . . I’ll, as always, take a
look at your motion . . . [a]nd what you have to say about it. And pending that . . .
I’ll get [Appellant] on the trial docket as soon as possible, again.” As a result, the
trial court did not rule on Appellant’s motion for funds at this hearing. The State
subsequently filed subpoena applications for two expert witnesses, including Baker.
On April 8, 2024, the trial court held a pretrial hearing on the parties’ pending
motions. At this hearing, Curry objected to a lack of notice, stating that she was
neither provided nor given notice of “[t]he State’s witness list, any State’s
supplemental witness list, [or] the extraneous offenses.” In response, the State
contended that “everything in the case had been filed for well over a year before Ms.
Curry was on this case . . . so she had ample opportunity to inspect the [trial court’s]

2
See Ake v. Oklahoma, 470 U.S. 68 (1985).

4
file. Following this discussion, the trial court overruled Curry’s objection. Notably,
Curry did not raise any objection or request that the trial court rule on her Ake
motion. Appellant’s case proceeded to a jury trial the following day.
B. Evidence Presented at Trial
Amoyaw testified about the circumstances of the shooting and stated that
although it was dark, the streetlights in his neighborhood were “pretty bright.”
According to Amoyaw, the vehicle driven by the shooter was a white “SUV” with
“[b]lacked-out windows.” Amoyaw testified that he did not see the shooter’s face;
however, he described the shooter as being approximately five-foot-nine or five-
foot-ten in height and wearing “a black hoodie and a black mask.” Amoyaw testified
that the shooter was “a Mexican that sounds like he hangs around a lot of brothers.”
Amoyaw “researched” Perez after the shooting and discovered that (1) Appellant
was in a relationship with Perez, and (2) Appellant and Perez were known drug
dealers in the area.
During their encounter, the shooter asked Amoyaw: “what do [you] have” and
“[d]o you have anything?” During cross-examination, Amoyaw admitted that he
previously made statements that he believed the masked shooter was “trying to kill
[Amoyaw] for being with [the shooter’s] girl.”
After the State rested, Curry recalled Amoyaw and asked what the masked
shooter said to him before the shooting occurred. Amoyaw testified that the shooter
first asked him if “I know his girl.” After this, the shooter asked him “what do you
got?” Amoyaw responded by “show[ing] him the blunt.” Amoyaw stated that
although he suspected that jealousy was “one of the reasons” the shooter tried to kill
him, he explained that at the time of the shooting, he believed the shooter was “trying
to rob . . . [and] kill [him].”

5
Perez testified that she was in a relationship and living with Appellant when
the shooting occurred. Perez stated that she was at a friend’s house on the day of the
shooting, and that Amoyaw messaged her around 5:00 a.m.3 Around this time,
Appellant contacted Perez and offered to give her a ride home. Perez recalled that
Appellant picked her up in a “[w]hite Chevy . . . SUV” and that he was wearing dark
clothes that day; however, she did not remember if Appellant was wearing a hoodie.
After Perez sat in Appellant’s vehicle, Appellant discovered that she was messaging
Amoyaw. According to Perez, Appellant became “upset” and he began using her
cell phone to message Amoyaw, pretending to be her during their conversation.
After Appellant messaged Amoyaw, he drove to Amoyaw’s house; Perez was seated
in the front passenger seat.
Once they arrived there, Appellant told Perez to sit in the driver’s seat of the
vehicle; Appellant sat in the back seat and pulled a ski mask over his face. At some
point, Perez saw an individual—whom she assumed was Amoyaw—approach the
vehicle. Perez testified that Appellant exited the vehicle holding a firearm, and he
“started asking [Amoyaw] questions.” Perez stated that the two men argued for “a
couple of minutes” and then she heard multiple gunshots. Although she did not
observe the shooting, Perez believed that the gunshots came from a weapon that
Appellant discharged. Appellant then entered the vehicle and instructed her to “start
driving.” Appellant later switched seats with Perez, and he drove them home.
According to Perez, Appellant yelled at her as he was driving, stating that the
shooting was “her fault . . . because [she] was talking to another man.”
Perez described Appellant as “possessive” and jealous. Perez stated that
Appellant had been violent during their relationship, that she was afraid of

Perez testified that she had exchanged messages with Amoyaw via Snapchat under the username
3

“CPerez2011.”

6
Appellant, and that she believed he was capable of violence because of his jealous
tendencies. 4
Officer Vavao testified that he provided medical assistance to Amoyaw when
he arrived at the scene. At the time, Amoyaw told Officer Vavao that he was shot
“[o]n Washington . . . by an AR.” Officer Vavao later recovered shell casings around
the corner from Washington Lane that were consistent with the type of shell casings
that an “AR” would discharge.
Detective Lauren Gonzales of the Odessa Police Department testified that she
obtained a statement from Amoyaw. Detective Gonzales recalled that Amoyaw
described the shooter as a male with a “light-skinned” complexion and a “Mexican
accent.” She also obtained a statement from Perez, which corroborated Amoyaw’s
statement and version of events. Additionally, law enforcement officers recovered
a black hoodie from the crime scene that, along with a sample of Appellant’s DNA,
was submitted for forensic testing.
Baker, a forensic scientist with the Department of Public Safety Crime Lab in
Lubbock, testified that she performed DNA testing on (1) the black hoodie, and (2) a
buccal swab from Appellant. 5 Baker created a DNA profile from the “hood area” of
the black hoodie, and she testified that this profile contained a mixture of DNA from
three individuals. Baker stated that one of the DNA profiles was consistent with
Appellant’s DNA profile. According to Baker, the probability that three unknown

4
When asked about previous instances of violence committed against her by Appellant, Perez
testified that Appellant struck her two days before he was arrested, and that Appellant had “shot at [her]”
on two occasions, once before and once after the April 7 shooting. Photographs of Perez’s injuries and the
damage to her vehicle were published to the jury.
5
Prior to this testimony, Appellant’s trial counsel objected on the basis that Baker’s testimony
violated Appellant’s Sixth Amendment rights.

7
individuals, other than Appellant, would be contributors to the DNA found in the
black hoodie was one in 378 septillion.
Other evidence was presented at trial that corroborated the testimony of the
State’s witnesses, including, but not limited to: (1) a transcript of Amoyaw’s
messaging to Perez’s cell phone on Snapchat; (2) a recording of Amoyaw’s 9-1-1
call; (3) photographs of the crime scene and evidence recovered by law enforcement
during their investigation; (4) Officer Vavao’s body camera footage; and (5) a copy
of Baker’s DNA profile report and findings.
After the State rested, Curry orally moved for a directed verdict for the
aggravated robbery offense arguing that the State had failed to prove beyond a
reasonable doubt that Appellant was the individual who committed the aggravated
robbery or that an aggravated robbery had even occurred on April 7. The trial court
denied Appellant’s motion, and the jury later found Appellant guilty of both
offenses.
II. Standard of Review
A. Denial of a Motion for Directed Verdict
Because we treat the denial of a motion for directed verdict as a challenge to
the sufficiency of the evidence, we apply the sufficiency review standard as set forth
in Jackson v. Virginia, 443 U.S. 307 (1979). Williams v. State, 937 S.W.2d 479, 482
(Tex. Crim. App. 1996); see Pollock v. State, 405 S.W.3d 396, 401 (Tex. App.—
Fort Worth 2013, no pet.); Melendez v. State, No. 11-22-00139-CR, 2024 WL
2194603, at *6 (Tex. App.—Eastland May 16, 2024, no pet.) (mem. op., not
designated for publication). Under the Jackson standard, we review all the evidence
in the light most favorable to the verdict to determine whether any rational trier of
fact could have found the essential elements of the charged offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Garcia v. State, 667 S.W.3d 756, 761

8
(Tex. Crim. App. 2023); Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010).
In conducting a sufficiency review, we consider all the evidence admitted at
trial, including evidence that may have been improperly admitted. Winfrey v. State,
393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Brooks v. State, 323 S.W.3d 893, 899
(Tex. Crim. App. 2010); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007). We defer to the factfinder’s role as the sole judge of the witnesses’ credibility
and the weight their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This
standard is deferential and accounts for the factfinder’s duty 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; Clayton, 235 S.W.3d at 778. We
may not reevaluate the weight and credibility of the evidence to substitute our
judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.
Crim. App. 1999). Thus, if the record supports conflicting inferences, we presume
that the factfinder resolved the conflicts in favor of the verdict, and we defer to that
determination. Jackson, 443 U.S. at 326; Merritt v. State, 368 S.W.3d 516, 525–26
(Tex. Crim. App. 2012); Clayton, 235 S.W.3d at 778.
The evidence need not directly prove the defendant’s guilt; circumstantial
evidence is as probative as direct evidence in establishing the defendant’s guilt, and
circumstantial evidence alone can be sufficient to establish guilt. Carrizales v. State,
414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing Hooper v. State, 214 S.W.3d
9, 13 (Tex. Crim. App. 2007)). Each fact need not point directly and independently
to the defendant’s guilt if the cumulative force of all incriminating circumstances is
sufficient to support the defendant’s conviction. Hooper, 214 S.W.3d at 13.
Therefore, in evaluating the sufficiency of the evidence, we treat direct and
circumstantial evidence equally, and we must consider the cumulative force of all

9
the evidence. Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017); Murray v.
State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015); Isassi, 330 S.W.3d at 638;
Hooper, 214 S.W.3d at 13.
Finally, we measure the sufficiency of the evidence by the elements of the
charged offense as defined by the hypothetically correct charge for the case.
Morgan v. State, 501 S.W.3d 84, 89 (Tex. Crim. App. 2016); see also Malik v. State,
953 S.W.2d 234, 240 (Tex. Crim. App. 1997). In this regard, to determine whether
the State has met its burden under Jackson to prove a defendant’s guilt beyond a
reasonable doubt, we compare the elements of the offense to the evidence adduced
at trial. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Malik, 953
S.W.2d at 240). The hypothetically correct 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.” Malik, 953
S.W.2d at 240.
B. Accomplice-Witness Testimony
In reviewing the sufficiency of corroborating evidence, we disregard the
accomplice testimony and focus on the remaining portions of the record to determine
whether there is any evidence that tends to connect the defendant to the commission
of the charged offense. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App.
2001); Cathey v. State, 992 S.W.2d 460, 462–63 (Tex. Crim. App. 1999). The
corroborating evidence may be direct or circumstantial and need not be sufficient by
itself to establish the defendant’s guilt; it is sufficient if the combined weight of the
non-accomplice evidence tends to connect the defendant to the offense. Solomon,
49 S.W.3d at 361; Gosch v. State, 829 S.W.2d 775, 777 (Tex. Crim. App. 1991).

10
Such corroboration may come from minor details. Trevino v. State, 991 S.W.2d 849,
852 (Tex. Crim. App. 1999).
We review the corroborating evidence in the light most favorable to the
verdict. Taylor v. State, 328 S.W.3d 574, 578 (Tex. App.—Eastland 2010, pet.
ref’d). Once corroborated, the testimony of an accomplice may be considered by
the jury in the same manner as other competent evidence. See Herron v. State, 86
S.W.3d 621, 632 (Tex. Crim. App. 2002).
C. Denial of a Request for Funds
We review a trial court’s ruling on a defendant’s Ake motion and request for
funds to hire an expert for an abuse of discretion. Griffith v. State, 983 S.W.2d 282,
287 (Tex. Crim. App. 1998). The authorization of funds to an indigent defendant
for this purpose is within the sound discretion of the trial court, and an abuse of
discretion will not be found unless the defendant shows some specific need for the
requested expert or how he would be harmed if the funds were not approved. See
Castillo v. State, 739 S.W.2d 280, 294 (Tex. Crim. App. 1987) (citing Phillips v.
State, 701 S.W.2d 875, 894 (Tex. Crim. App. 1985), overruled on other grounds by
Hernandez v. State, 757 S.W.2d 744, 751 n.15 (Tex. Crim. App. 1988)).
Upon a sufficient showing, an indigent defendant may be constitutionally
entitled to the appointment of an expert at the State’s expense under Ake. See Ex
parte Briggs, 187 S.W.3d 458, 463, 468 (Tex. Crim. App. 2005). However, the State
need not “purchase for the indigent defendant all the assistance that his wealthier
counterpart might buy.” Ake, 470 U.S. at 77; see Ex parte Jimenez, 364 S.W.3d 866,
877 (Tex. Crim. App. 2012). “[I]f the defendant makes a sufficient threshold
showing of the need for expert assistance on a particular issue, the defendant is
entitled to access to at least one expert.” Jimenez, 364 S.W.3d at 877 (noting that
Ake does not necessarily require that a defendant is entitled to an expert that will

11
testify on his behalf but, rather, an expert who is available to assist defense counsel
with presenting the defendant’s case in the best light); see Ake, 470 U.S. at 77; see
also TEX. CODE CRIM. PROC. ANN. arts. 26.05(d), (h), 26.052(f), (g) (West Supp.
2024).
D. Ineffective Assistance of Counsel
We review an ineffective-assistance-of-counsel complaint under the two-part
standard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). To succeed
on a claim of ineffective assistance of counsel, Appellant must satisfy both prongs
of the Strickland standard: (1) performance and (2) prejudice. Strickland, 466 U.S.
at 687; see Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010). The failure
to succeed on either Strickland prong is fatal to a claim of ineffectiveness. Perez,
310 S.W.3d at 893.
First, Appellant must show that trial counsel’s representation was deficient in
that it fell below an objective standard of reasonableness. Perez, 310 S.W.3d at 892–
93. Second, Appellant must show that trial counsel’s deficient performance
prejudiced his defense—that is, counsel’s errors were so serious as to deprive
Appellant of a fair trial and, as a result, there is a reasonable probability that the
outcome of his trial would have been different but for counsel’s errors. Id. at 893;
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) (citing Strickland,
466 U.S. at 687–88). The “reasonable probability” component must rise to the level
such that it is sufficient to undermine confidence in the outcome of the trial.
Strickland, 466 U.S. at 694. “This is a heavy burden which requires a ‘substantial,’
and not just a ‘conceivable,’ likelihood of a different result.” Walker v. State, 406
S.W.3d 590, 599 (Tex. App.—Eastland 2013, pet. ref’d) (quoting United States v.
Wines, 691 F.3d 599, 604 (5th Cir. 2012)).

12
There is a strong presumption that trial counsel’s conduct fell within the wide
range of reasonable professional assistance. Strickland, 466 U.S. at 689; Isham v.
State, 258 S.W.3d 244, 250 (Tex. App.—Eastland 2008, pet. ref’d). To overcome
this deferential presumption, a claim of ineffective assistance of counsel must be
firmly founded in the record, and the record must affirmatively demonstrate the
alleged ineffectiveness. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.
2005); Thompson, 9 S.W.3d at 814; Walker, 406 S.W.3d at 593–94. In this regard,
we will not inquire into counsel’s trial strategy unless no possible basis exists to
support such strategy or tactics. Johnson v. State, 614 S.W.2d 148, 152 (Tex. Crim.
App. [Panel Op.] 1981). Thus, in our analysis, we must make every effort to
“eliminate the distorting effects of hindsight.” Strickland, 466 U.S. at 689.
E. Ineffective Assistance of Counsel Challenges on Direct Appeal
In most instances, direct appeal is an inadequate means by which to overcome
this presumption and show that trial counsel’s representation was deficient and
lacked tactical or strategic decision-making, because the record is typically
undeveloped and will not show the extent of counsel’s conduct and alleged failures.
Goodspeed, 187 S.W.3d at 392; Mallet v. State, 65 S.W.3d 59, 63 (Tex. Crim. App.
2001); Thompson, 9 S.W.3d at 813–14. This is especially true when the basis for
counsel’s trial strategy and decisions do not appear in the record. Goodspeed, 187
S.W.3d at 392. In such circumstances, trial counsel should be afforded an
opportunity to explain his or her actions before being denounced as ineffective. Id.;
Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).
When the record contains no direct evidence of trial counsel’s reasons or
explanations for the challenged conduct, counsel’s performance must be reviewed
with great deference and without resort to hindsight, and we “will assume that
counsel had a [valid] strategy if any reasonably sound strategic motivation can be

13
imagined.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). We will
not speculate about counsel’s motives or strategy in the face of a silent record.
Thompson, 9 S.W.3d at 814. Therefore, if the record is silent as to any reason or
explanation for counsel’s actions, strategies, and alleged failures, as it is in this case,
we “will not conclude [that] the challenged conduct constituted deficient
performance unless the conduct was so outrageous that no competent attorney would
have engaged in it.” Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001);
see also State v. Morales, 253 S.W.3d 686, 696–97 (Tex. Crim. App. 2008);
Goodspeed, 187 S.W.3d at 392; Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App.
2002) (The defendant must show that there was no plausible, professional reason for
counsel’s specific acts or omissions.).
III. Analysis
A. Motion for Directed Verdict
In his first issue, Appellant contends that, applying the accomplice-witness
rule, the evidence is insufficient to support his convictions. Specifically, Appellant
contends that the trial court erred when it denied his motion for directed verdict
because the State failed to prove an essential element of each charged offense, and
thus the evidence adduced at trial is insufficient to support the jury’s verdicts of guilt.
As relevant here, a person commits the offense of robbery if, while in the
course of committing theft of property 6 and with the intent to obtain or maintain
control of the property, he intentionally, knowingly, or recklessly causes bodily
injury to another. PENAL § 29.02(a)(1) (West 2019). “Bodily injury” is defined as
“physical pain, . . . or any impairment of physical condition.” Id. § 1.07(a)(8); see
Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989). Proof of a completed

6
A person commits the offense of theft when he unlawfully appropriates property with the intent to
deprive the owner of said property. See PENAL § 31.03(a).

14
theft is not required to establish the offense of robbery. See Bustamante v. State,
106 S.W.3d 738, 740–41 (Tex. Crim. App. 2003). The offense of robbery becomes
an aggravated robbery if the person uses or exhibits a deadly weapon during the
commission of the robbery. PENAL § 29.03(a)(2). A person commits the offense of
aggravated assault if he “intentionally, knowingly, or recklessly causes bodily injury
to another” and “uses or exhibits a deadly weapon during the commission of the
assault.” See PENAL §§ 22.01(a)(1), 22.02(a)(2). A firearm is a deadly weapon per
se. PENAL § 1.07(a)(17)(A).
The legislature “assigned a broad meaning to the term, ‘in the course of
committing theft,’ [in the robbery statute] to encompass virtually any act [that
occurs] immediately before, during, or after a theft.” See Knott v. State, 513 S.W.3d
779, 793 (Tex. App.—El Paso 2017, pet. ref’d) (citing Sorrells v. State, 343 S.W.3d
152, 157–58 (Tex. Crim. App. 2011)). In this context, the Penal Code defines “[i]n
the course of committing theft” as “conduct that occurs in an attempt to commit,
during the commission, or in immediate flight after the attempt or commission of
theft.” PENAL § 29.01(1).
Count One of the indictment alleged that, while in the course of committing
theft and with the intent to obtain and maintain control of Amoyaw’s property,
Appellant intentionally, knowingly, and recklessly caused bodily injury to Amoyaw
by shooting him and that Appellant used or exhibited a deadly weapon—a firearm.
Count Two of the indictment alleged that Appellant intentionally, knowingly, and
recklessly caused bodily injury to Amoyaw by shooting him, and that Appellant used
or exhibited a deadly weapon—a firearm—during the commission of the assault.
1. Accomplice-Witness Testimony
Appellant asserts that the only evidence to implicate him to the shooting was
Perez’s testimony, a witness “who is, or should be, considered an accomplice.”

15
Appellant contends that, as a result, his conviction violates Article 38.14 of the Code
of Criminal Procedure. See CRIM. PROC. art. 38.14 (West 2023).
To support a conviction based on the testimony of an accomplice, there must
be corroborating evidence that tends to connect the accused with the charged
offense. CRIM. PROC. art. 38.14; Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim.
App. 2008). In this regard, we note that the trial court’s charge contained a general,
corroboration instruction that explained the requirements of accomplice-witness
testimony. Nevertheless, in this case, there was sufficient non-accomplice evidence
that corroborated Perez’s testimony. Perez testified and identified Appellant as the
masked shooter. Her testimony shows, among other things, that: (1) Appellant
picked her up in a white SUV; (2) Appellant wore a black ski mask when he was in
the backseat of the vehicle; (3) it appeared that Appellant was holding a firearm
when he exited the vehicle; and (4) minutes after he exited the vehicle, Appellant
“started . . . shooting.” Perez’s testimony was corroborated by Amoyaw, who
testified that the vehicle was a white SUV and that the shooter was wearing a ski
mask. Perez’s testimony was also corroborated by the State’s recovery of a black
hoodie at the crime scene that was submitted for DNA testing, the results of which
were consistent with Appellant’s DNA profile.
We conclude that because there is sufficient evidence to corroborate Perez’s
testimony, the jury could have considered it in the same manner as other competent
evidence. See Herron, 86 S.W.3d at 632.
2. Sufficiency of the Evidence
Appellant asserts that the evidence is legally insufficient to prove, beyond a
reasonable doubt, that he was the person who committed either charged offense.
Specifically, Appellant contends that the evidence is insufficient because: (1) it does
not conclusively show that the black hoodie found at the crime scene belonged to

16
him; (2) Baker acknowledged that Appellant’s DNA could have been transferred to
the black hoodie by means other than by him having worn it during the commission
of the charged offenses; (3) Baker’s DNA findings did not show whether the hoodie
contained gunshot residue or was worn during the crimes; (4) touch DNA is
unreliable; and (5) there is insufficient witness testimony in the record. However,
based on our review of the record, we conclude that the State adduced legally
sufficient evidence to support the jury’s verdicts.
Appellant asserts that the DNA mixture evidence is unreliable, and that this
data does not provide definitive confirmation of who wore the black hoodie during
the commission of these offenses. However, the presence of Appellant’s DNA on
the black hoodie alone links him to the scene of the crimes. See King v. State, 29
S.W.3d 556, 565 (Tex. Crim. App. 2000) (DNA evidence on a cigarette butt found
at the scene of a crime indicated the defendant’s presence at the crime scene.).
Moreover, the mere presence of a second or third, unknown contributor’s DNA
within the DNA mixture profile does not exonerate Appellant. See Banks v. State,
No. 11-18-00337-CR, 2020 WL 7863333, at *3 (Tex. App.—Eastland Dec. 31,
2020, pet. ref’d) (mem. op., not designated for publication); Brown v. State, No. 02-
19-00459-CR, 2020 WL 4689890, at *3 (Tex. App.—Fort Worth Aug. 13, 2020,
pet. ref’d) (mem. op., not designated for publication).
Although DNA evidence, without more, is not conclusive of Appellant’s guilt,
the jury could have drawn reasonable inferences from this and other evidence in
making its determination that Appellant committed the charged offenses. See
Brooks, 323 S.W.3d at 899. Here, Amoyaw testified that (1) the shooter wore a
black hoodie and a black ski mask, (2) the shooter arrived at his house in a white
SUV after he messaged Perez that morning, and (3) Appellant was in a relationship
with Perez when the shooting occurred. Moreover, as we have previously discussed,

17
the jury could consider Perez’s testimony in making its determination of the
shooter’s identity and Appellant’s guilt for the charged offenses. See Herron, 86
S.W.3d at 632.
The parties agree that there is “[n]o evidence [that] establishes Appellant
actually took property from Amoyaw or confessed to anyone an intent to do so”;
however, there is sufficient evidence to show that Appellant shot Amoyaw while in
the course of committing theft. Amoyaw testified that the masked shooter pointed a
gun at his face and asked if he “had anything” on him. When Amoyaw said that he
did not, Amoyaw testified: “He proceeded to come with the gun in my -- in his hand
and coming close to me, trying to find out what do [sic] I have.” From this evidence,
a rational jury could have reasonably and logically inferred that: (1) Appellant
intended or attempted to steal property from Amoyaw; (2) Appellant shot Amoyaw
“in the course of committing theft”; and (3) Appellant intentionally, knowingly, or
recklessly caused bodily injury to Amoyaw by shooting him. See Young v. State,
283 S.W.3d 854, 862 (Tex. Crim. App. 2009) (“[T]he requisite intent to rob may be
inferred from circumstantial evidence, particularly the appellant’s assaultive
conduct.”); see also Wolfe v. State, 917 S.W.2d 270, 275 (Tex. Crim. App. 1996).
In this case, as in all cases, the jury may believe all, some, or none of any
witness’s testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App.
1992); Reyes v. State, 465 S.W.3d 801, 805 (Tex. App.—Eastland 2015, pet. ref’d)
(citing Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986)); see Winfrey,
393 S.W.3d at 768; Brooks, 323 S.W.3d at 899. As the trier of fact, it is the jury’s
duty to resolve conflicts in the testimony, weigh the evidence, assess the witness’s
credibility, and to draw reasonable inferences from basic facts to ultimate facts. See
Jackson, 443 U.S. at 326; Merritt, 368 S.W.3d at 525–26; Brooks, 323 S.W.3d at
899; Clayton, 235 S.W.3d at 778. It is not our role or function to engage in or make

18
credibility determinations. See Jackson, 443 U.S. at 326; Winfrey, 393 S.W.3d at
768; Brooks, 323 S.W.3d at 899. Therefore, when the evidence supports conflicting
inferences, we presume that the jury, as the factfinder, resolved any conflicts in favor
of the verdict, and we defer to that determination. Jackson, 443 U.S. at 326; Merritt,
368 S.W.3d at 525–26; Clayton, 235 S.W.3d at 778.
We have reviewed the evidence in the light most favorable to the jury’s
verdicts, and we conclude that the record contains sufficient evidence from which a
rational jury could have logically inferred and found beyond a reasonable doubt that
Appellant was guilty of aggravated robbery and aggravated assault with a deadly
weapon as charged in the indictment. Jackson, 443 U.S. at 319; Garcia, 667 S.W.3d
at 761; Villa, 514 S.W.3d at 232; Murray, 457 S.W.3d at 448; Hooper, 214 S.W.3d
at 13. Therefore, the trial court did not err when it denied Appellant’s motion for
directed verdict.
Accordingly, we overrule Appellant’s first issue.
B. Appellant’s Request for Funds for a DNA Expert
In his second issue, Appellant contends that the trial court abused its discretion
when it denied his request for funds to retain a DNA expert. Specifically, Appellant
asserts that, because of the importance of DNA evidence in the case, the trial court’s
“denial” of his request for funds was an abuse of discretion.
The State contends that Appellant did not preserve this issue for appellate
review for three reasons: (1) Appellant failed to object to or complain about this
issue in the trial court; (2) Appellant’s argument on appeal does not comport with
his objection at trial; and (3) Appellant did not meet his burden to show that he was
entitled to funds for a DNA expert because the trial court could not have abused its
discretion if it had denied Appellant’s pro se motion on this matter. We agree with
the State.

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To preserve error for appellate review, a party must make a timely objection
to the trial court, state the specific grounds for the objection, and obtain a ruling.
TEX. R. APP. P. 33.1(a). In addition, the trial court must have either ruled or refused
to rule on the party’s request—in which case the complaining party must have
objected to the trial court’s refusal to rule. Id.; Burg v. State, 592 S.W.3d 444, 448–
49 (Tex. Crim. App. 2020); see Wishert v. State, 654 S.W.3d 317, 331–32 (Tex.
App.—Eastland 2022, pet. ref’d). Further, the complaints and arguments raised on
appeal must comport with and correspond to the objections the complaining party
made, if any, at trial or they are waived. TEX. R. APP. P. 33.1(a)(1)(A); Broxton v.
State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995); Turner v. State, 805 S.W.2d
423, 431 (Tex. Crim. App. 1991); Arevalo v. State, 675 S.W.3d 833, 844–45 (Tex.
App.—Eastland 2023, no pet.).
Here, Appellant did not obtain a ruling from the trial court on his objection,
nor did he object to the trial court’s failure or refusal to rule on his motion for expert
witness funds.7 Moreover, to the extent Appellant raises a due process complaint on
these grounds, Appellant’s complaint that he now asserts on appeal does not comport
with the argument or objection that he made before the trial court on the same issue.
See Ake, 470 U.S. at 87 n.13 (relying on the Fourteenth Amendment’s due process
clause); Jimenez, 364 S.W.3d at 876 (citing Ake, 470 U.S. at 74); Green v. State,
No. 10-14-00161-CR, 2018 WL 358396, at *3 (Tex. App.—Waco Jan. 10, 2018,

7
In this regard, Appellant attempted to “object in advance” to the State presenting testimony from
its DNA expert witness (Baker) while the trial court was appointing an alternate juror. Appellant’s trial
counsel stated as follows: “I previously asked [the trial court] for a Defense DNA expert . . . and you never
granted that motion, or denied it from what I know. So I would object to [the State] now offering DNA
[evidence] when I was denied.” In response, the trial court instructed Appellant’s trial counsel to “approach
the bench . . . to make an objection and response when [the witness] is called.” Appellant’s trial counsel
later objected to Baker’s testimony when she was called to testify and stated that, “[Appellant] previously
filed a motion to get a court appointed DNA expert . . . [and] I believe it was partially denied based on
statements by the prosecutor that he did not have DNA involved in this case.” Despite these statements,
the record does not show that the trial court ever ruled on Appellant’s motion.

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pet. ref’d) (mem. op., not designated for publication); see also TEX. R.
APP. P. 33.1(a)(1)(A); Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App.
2016) (the arguments on appeal must comport with the objection raised at trial);
Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012); Arevalo, 675 S.W.3d
at 845. As to his broad assertion on appeal that his “right to a fair trial”—presumably
under the Sixth Amendment—was violated because he proceeded without a “counter
expert regarding DNA,” Appellant’s objection at trial did not advise the trial court
that he was challenging its purported “denial” of the Ake motion. As such, we
conclude that Appellant failed to preserve and waived this complaint for appellate
review. See TEX. R. APP. P. 33.1(a).
Accordingly, we overrule Appellant’s second issue.
C. Ineffective Assistance of Counsel
In his third issue, Appellant contends that his trial counsel rendered ineffective
assistance because: (1) trial counsel failed to “procure” a DNA expert, which
compromised Appellant’s defense by failing to scrutinize the State’s DNA evidence;
(2) trial counsel failed to realize that the State had previously disclosed a DNA expert
witness for trial, which resulted in the “denial” of his Ake motion; and (3) there was
a reasonable probability that the outcome of his trial would have been different but
for these errors.
In response, the State argues that Appellant failed to establish the Strickland
prongs because the record does not show that trial counsel’s representation was
outside the range of reasonable professional assistance. Additionally, the State
argues that even if the record is sufficient to address this issue on appeal, Appellant
failed to show that the trial court would have abused its discretion by denying
Appellant’s pro se motion, or that trial counsel’s failure to present an expert witness
constituted deficient performance.

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At the outset, we note that Appellant did not file a motion for new trial. As
such, Appellant’s trial counsel did not have the opportunity to explain or defend her
actions or trial strategy or respond to what Appellant now contends constitutes
deficient performance. Thus, for Appellant to demonstrate on direct appeal that his
trial counsel rendered ineffective assistance, the record must affirmatively show that
his counsel’s representation fell below an objective standard of reasonableness as a
matter of law, and “that no reasonable trial strategy could justify trial counsel’s acts
or omissions, regardless of his or her subjective reasoning.” Lopez, 343 S.W.3d at
143; see Strickland, 466 U.S. at 687. Furthermore, when, as here, the record does
not reveal counsel’s reasoning or strategies, we “presume that counsel is better
positioned than the appellate court to judge the pragmatism of the particular case,
and that [trial counsel] ‘made all significant decisions in the exercise of reasonable
professional judgment.’” Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App.
1992) (quoting Strickland, 466 U.S. at 690); see Morales, 253 S.W.3d at 697;
Screws v. State, 630 S.W.3d 158, 164–65 (Tex. App.—Eastland 2020, no pet.).
According to Appellant, and now with the benefit of hindsight, he would have
pursued a different strategy at trial. However, “[t]he mere fact that another attorney
might have pursued a different [strategy] at trial does not suffice to prove a claim of
ineffective assistance of counsel.” Jimenez, 364 S.W.3d at 883. The record shows
that Appellant’s trial counsel chose to aggressively challenge the veracity of Baker’s
forensic analysis and the results of her DNA profile findings. Based on this record,
we cannot say that this decision was so outrageous that no competent attorney would
have forgone the same. Goodspeed, 187 S.W.3d at 392; Bone, 77 S.W.3d at 836;
see also Ex parte Flores, 387 S.W.3d 626, 633 (Tex. Crim. App. 2012) (“It is not
enough to show that trial counsel’s errors had some conceivable effect on the

22
outcome’ of the proceeding.” (quoting Ex parte Rogers, 369 S.W.3d 858, 863 (Tex.
Crim. App. 2012)).
A claim of ineffective assistance that is based on trial counsel’s failure to
present witnesses at trial cannot succeed unless the defendant shows that the
witnesses were available to testify, and that their testimony would have benefitted
the defendant at trial. Ex parte Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App.
2007); King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); see Poor v. State,
715 S.W.3d 15, 39 (Tex. App.—Eastland 2024, pet. ref’d) (op. on reh’g). Here, even
if Appellant’s trial counsel had retained a DNA expert, we cannot speculate as to
what the expert’s trial testimony might have been. See Ramirez, 280 S.W.3d at 853
(concluding that the applicant’s claim that an unpresented witness would have
benefitted his defense was “based on pure speculation”); Brown v. State, 334 S.W.3d
789, 803 (Tex. App.—Tyler 2010, pet. ref’d) (“[T]he failure to request the
appointment of an expert witness is not ineffective assistance in the absence of a
showing that the expert would have testified in a manner that benefitted the
defendant.”). Considering the totality of the evidence in the record, we cannot say
that the outcome of Appellant’s trial would have been different had no DNA
evidence been presented at trial. Similarly, Appellant did not show that his trial
counsel’s failure to object or otherwise obtain a ruling on Appellant’s pro se motion
for funds constituted ineffective assistance.
Finally, Appellant asserts for the first time in his reply brief that trial counsel’s
failure to preserve for appellate review the argument he now advances—that the trial
court either failed to rule or refused to rule on his motion for funds—is indicative of
counsel’s deficient performance. However, we will not consider this argument
because (1) Appellant does not provide any authority to support it, and
(2) Appellant’s argument is beyond the scope of Rule 38.3 and may not be raised for

23
the first time in this manner. See TEX. R. APP. P. 38.1(i), 38.3; Lagrone v. State, 942
S.W.2d 602, 614 (Tex. Crim. App. 1997), cert. denied, 522 U.S. 917 (1997)
(“Without substantive argument or supporting authorities, we cannot adequately
evaluate appellant’s ineffective assistance claim.”); Heiselbetz v. State, 906 S.W.2d
500, 512 (Tex. Crim. App. 1995); Edmondson v. State, 399 S.W.3d 607, 612 (Tex.
App.—Eastland 2013, no pet.); see Chambers v. State, 580 S.W.3d 149, 161 (Tex.
Crim. App. 2019) (New issues or arguments raised for the first time in a reply brief
may not be considered.).
Because the record is not sufficiently developed to affirmatively demonstrate
that Appellant’s trial counsel had no reasonable strategic basis for her decisions, and
because counsel was not provided an opportunity to explain or defend her decisions
and trial strategies, we cannot say that her actions and decisions constitute
ineffective assistance as Appellant contends. See Strickland, 466 U.S. at 687;
Thompson, 9 S.W.3d at 812; see also Lopez, 343 S.W.3d at 142.
Accordingly, we overrule Appellant’s third issue.
IV. This Court’s Ruling
We affirm the judgments of the trial court.

W. STACY TROTTER
JUSTICE
November 14, 2025
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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