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Click here for the full text of this decision FACTS:On Jan. 16, 2004, a rainy night, Evelyn Johnson, along with her sister and other relatives, went to a nightclub in Texas City. At that time, Evelyn and Moses Johnson were married but had been separated for some time. Shortly before the nightclub closed at 2 a.m., Moses arrived outside the nightclub. Soon thereafter, Annette Woodard, Evelyn’s sister, exited the club and crossed the street to the club’s parking lot, which was brightly illuminated by a street light. Woodard got into her car to wait for her sister, who had ridden with her that evening. Moses tapped on the window of Woodard’s car and after a brief exchange, Woodard thought Moses left. Moments later, Evelyn walked out of the club with three other people, all walking under a single umbrella. In addition, because the club had closed, a large number of additional people were exiting the club in close proximity to Evelyn’s party. While walking toward the parking lot, Evelyn’s party stopped while Evelyn talked to a man in a truck that had pulled up near her. Once the truck left, Moses appeared a short distance from Evelyn, called for her to come over to him and when she refused, Moses approached her. Evelyn attempted to flee, but Moses caught her within a few feet and began striking her. Moses then pulled out a knife and repeatedly stabbed Evelyn. Woodard left her car and attempted to stop the attack by pushing Moses away, but each time she did so, Moses re-approached Evelyn and continued to stab her. Moses finally stopped his attack on his own, went to his car and left the scene. Woodard then drove her mortally wounded sister to the hospital, where she died a short time later. Less than an hour after the attack, Texas City Police apprehended Moses following a chase which ended only when Moses wrecked his car. Following his arrest, Moses gave a statement to the police in which he claimed that he snapped after seeing Evelyn talking with another man outside the club. Moses stated he did not remember anything from that point until sometime later when he heard his sister-in-law saying “Moe, Moe.” According to Moses, he then walked to his car and drove off, without noticing what had happened to Evelyn. Authorities charged Moses with murder in a two paragraph indictment alleging murder under Texas Penal Code ��19.02(b)(1) and (2). Moses retained a psychologist as an expert witness to testify during the punishment phase of the trial regarding why a person may not remember an emotional and tragic event. The state moved to exclude the expert’s testimony as Moses had not timely notified the state of the expert as required by a discovery order entered by the trial court. The trial court granted the state’s motion and prohibited Moses’ expert from testifying. During closing argument, one of the state’s prosecutors argued without objection by Moses’ attorney that the jury need not reach a unanimous verdict as to which of the two application paragraphs in the indictment was a proper basis for reaching a verdict of guilty. The actual jury charge instructed the jury that a unanimous verdict was required to find Moses guilty under either paragraph one or paragraph two of the indictment. Moses was found guilty of the offense of murder, and the jury sentenced him to 45 years of imprisonment. This appeal followed. HOLDING:Affirmed. First, Moses asserted he was denied the right to a unanimous jury verdict because of the trial court’s charging error and improper jury argument by the state. The court agreed with Moses that he was entitled to a unanimous guilty verdict but disagreed that the jury must unanimously agree on a single method by which a defendant committed murder. The murder statute under which the jury convicted Moses, the court stated, did not describe different offenses, but merely set forth different methods of committing the same offense. As for Moses’ improper jury argument complaint, the court found that Moses failed to preserve error and thus waived the point. Next, the court examined the trial court’s decision not to allow Moses’ expert to testify. On April 19, 2004, the court noted, nearly two years before the trial of this case commenced, the trial court signed an agreed discovery order requiring that Moses provide the state with the name and address of any expert witnesses that he might use at trial. While there was no evidence in the record that Moses’ trial attorney acted in bad faith in not disclosing the expert witness, the court found the trial court did not abuse its discretion in excluding Hirsch’s testimony “as the State could not reasonably have anticipated that a clinical psychologist would be called by appellant to testify during the punishment phase of the trial, and therefore could not prepare to meaningfully cross-examine or decide to produce its own expert witness in rebuttal.” Finally, Moses made an ineffective assistance of counsel claim, alleging several ways in his attorney was allegedly ineffective. Even if his attorney was ineffective, however, the court found no evidence of “a reasonable probability that absent counsel’s deficient performance, the result of the proceeding would have been different.” OPINION:Anderson, J.; Yates, Anderson and Hudson, JJ.

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