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Click here for the full text of this decision FACTS:The applicant was convicted of capital murder for the shooting death of Mansor Bhai Rahim Mohammed during an aggravated robbery at the 7-Evenings Food Store in Houston. Based upon the jury’s answers to the special issues set out in Texas Code of Criminal Procedure Article 37.071, the trial court set punishment at death. The court ordered the parties to brief two claims: 1. Whether applicant is factually innocent of the offense of capital murder; and 2. whether applicant was deprived of the effective assistance of counsel due to his trial counsel’s failure to request a charge on felony murder. Both of these claims hinge upon the “newly available” fact that Sammy Butler, applicant’s triggerman-accomplice, was convicted of felony-murder after applicant’s trial. HOLDING:Denied. There was ample evidence offered at applicant’s trial that Butler committed the offense of capital murder and that applicant assisted or encouraged him in that endeavor by his own acts of attempting to commit the capital murder of Mubarakali Meredia. The fact that the jury in Butler’s trial declined to convict him of capital murder does not affect the validity of applicant’s capital murder conviction, the court holds. Thus, although the verdict in Butler’s trial may be newly available evidence, it is not evidence that shows (or even tends to show) applicant’s innocence of capital murder. The court adopts the trial court’s findings of fact and conclusions of law concerning applicant’s claim of factual innocence. Applicant also contends that his trial counsel provided constitutionally deficient assistance because he failed to request an instruction on the lesser-included offense of felony-murder. “When judging an attorney’s conduct in retrospect, we cannot assume that only his conduct might have been different. We must assume that, as in a chess game, if a defendant hypothesizes a different strategy or move by his pawn or queen, the State would have altered its strategy and made a different move with its chess pieces as well. In this case, applicant’s case at the guilt phase might have been considerably worsened had he attempted to raise an issue concerning his intent to kill. Therefore, we cannot conclude that his counsel’s chosen strategy � to forego an attack upon the state’s case concerning his own intent to kill and instead concentrate on a plausible argument (albeit largely unsupported by evidence) that applicant could not have anticipated Butler’s act of shooting Mr. Rahim-was a constitutionally ineffective one.” OPINION:Cochran, J., delivered the opinion of the Court in which Meyers, Price, Womack, Keasler, Hervey and Holcomb, JJ., joined. Keller, P.J., filed a concurring opinion. Johnson, J., dissented. CONCURRENCE:Keller, P.J. “Applicant argues: [I]t is the intent of the killer which determines whether the offense is a capital murder or a felony-murder. If the actual killer intended the death, it is a capital murder. If he did not, it was not capital murder. “The Court says that applicant is wrong, and that it is applicant’s intent, not the intent of the primary actor, that determines whether applicant is guilty of capital murder or felony murder under the law of parties. I think the Court is mistaken in this.”

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