(caption unavailable)

*Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
1
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-50143
CHERYL DAVIS,
Petitioner-Appellant,
VERSUS
C. CRAIG, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Texas
( W-93-CV-153 )
(July 25, 1995)
Before KING, EMILIO M. GARZA, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:*
Petitioner Cheryl Davis appeals from the district court's
denial of her application for writ of habeas corpus under 28
U.S.C. § 2254, which challenged her 1990 Texas conviction for
attempted capital murder of a police officer. We affirm.

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2
RELEVANT FACTS
At 11:00 a.m. on the morning of October 7, 1988, approximately
twenty police officers from at least four state and federal law
enforcement agencies went to the home of David Mangrum in West,
Texas to execute a federal evidentiary search warrant for evidence
of narcotics trafficking and manufacture. Earlier that morning the
officers met for a briefing and planning session. Officers
Wilkerson, Radney, Bennett, Herbert and Arp of the Texas Department
of Public Safety, Officer Baier of the Waco Police Department and
Officer Watson with the Drug Enforcement Agency were assigned to be
the "entry team." Other officers were to be placed around the
perimeter to provide cover and backup support. The entry team was
given raid jackets and plans were made concerning what weapons the
officers would carry, and in what order they would enter the house.
On approach to Mangrum's rural residence, the truck carrying
the entry team skidded in loose gravel, nearly colliding with the
front porch, and throwing the four officers in the bed of the truck
off balance. As they recovered their balance, the officers
abandoned the truck and approached the front door screaming "police
officers, search warrant." Officer Wilkerson was the first to
enter, armed with a 12 gauge shotgun, a 9 mm high powered pistol
and a .44 magnum pistol. Officer Wilkerson entered into a living
room which was joined to a bedroom by a pair of french doors on the
wall to his left. The french door on the left was closed and the
french door on the right was open. The glass panes on both doors
were painted over, which precluded any view of the room beyond from

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3
the front door. Wilkerson approached the open door and turned in
to face the room, observing David Mangrum in what he described as
a combat-ready firing position, with legs crossed and both hands
steadying a pistol in the direction of the door. Cheryl Davis was
observed sitting shoulder to shoulder with Mangrum, also facing the
doorway. There were at least four guns on the bed with Mangrum and
Davis. At that instant Mangrum shot Wilkerson in the arm with the
9 mm pistol and Wilkerson was forced to retreat to the adjoining
kitchen.
Meanwhile, the other officers, who had followed Wilkerson into
the residence, observed that he was shot or heard him scream that
he was shot and began "laying down fire" into the bedroom through
the closed french door to provide cover for Wilkerson and to make
their approach to the bedroom possible. Officer Radney, who was
second to enter the house behind Wilkerson, fired twice with a
shotgun through the closed french door into the bedroom. Officer
Bennett, who followed Radney into the house, fired approximately
three shots through the closed french door with a 9 mm pistol, one
shot at Mangrum's dog, and then six or seven additional shots
through the closed french door as he approached the open doorway.
Officer Herbert, who entered fourth, fired twice through the closed
french doors. Officer Arp, who entered fifth but was already in
the house when Wilkerson was shot, fired between five and seven
shots through the closed french door. Officer Baier, who was
outside the door, heard the shot from the bedroom and stepped
inside to fire two shots through the closed french door. Officers

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4
Radney, Bennett and Herbert reached the doorway and assembled into
a firing formation.
Officers Radney, Bennett and Herbert all testified that, when
they reached the doorway, Mangrum was still in a firing position,
aiming the gun at the open doorway. Davis was observed facing away
from the officers, on her knees, and leaning slightly forward,
holding a "long gun," which was later identified as a loaded
shotgun, in her right hand. The stock and barrel of the gun were
visible on both sides of her body. As the officers arrived at the
door, she pushed up with her left hand and began turning toward the
officers with the weapon. The officers responded to the dual
threat presented by Mangrum and Davis with more gunfire. Officer
Radney shot six additional shots into the bedroom from the open
door. Officer Bennett shot twice through the open door, injuring
Mangrum. Officer Herbert fired five shots through the open door;
at least two of those shots were fired at Davis. At some point
Officer Wilkerson also returned from the kitchen and fired a single
shot into the bedroom from his shotgun with his left (uninjured)
hand. One of the main issues at trial concerned whether Mangrum
fired a second shot at the officers during this exchange. Two of
the officers testified that they either heard or saw Mangrum fire
a second shot, but the physical evidence was conflicting.
When the shooting stopped, Mangrum was dead and Davis was
seriously injured, with bullet wounds to her right inside elbow,
her left shoulder and a single bullet injury affecting both the
left side of her jaw and her neck. When Officers Herbert and Baier

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5
entered the bedroom, she was lying face down on the bed, but
moving, with her hands and the shotgun underneath her body.
Officer Baier, who removed the shotgun from under her body,
testified that he had to jerk it, as if she were still clutching
the gun.
PROCEDURAL HISTORY
Davis was convicted of attempted capital murder of a police
officer in the 54th Judicial District of McLennan County, Texas and
sentenced to thirty-five years in prison. Her conviction was
affirmed on direct appeal and the Texas Court of Criminal Appeals
denied her petition for discretionary review without written
opinion. Davis v. State, No. 10-90-017-CR (Tex. App.--Waco 1991,
writ denied). Davis' single state habeas petition was likewise
denied, without an evidentiary hearing or written opinion, in April
1992.
Davis then filed the instant § 2254 habeas corpus petition,
claiming that numerous trial errors denied her constitutional right
to due process of law and effective assistance of counsel.
Specifically, Davis alleged that: (1) her state court indictment
was defective for failure to allege an essential element of the
offense; (2) that a fatal variance existed between the state court
indictment and the proof at trial; (3) that the trial court
erroneously refused to instruct on self-defense; (4) that the
State's evidence at trial was incredible in that it defied physical
laws; (5) that there was insufficient evidence to support her
conviction; (6) that the trial court erroneously admitted certain

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1In this case there are no state fact findings entitled to a
presumption of correctness under § 2254. Therefore, all facts and
inferences will be resolved in a light most favorable to Davis, the
non-movant. See Valles, 835 F.2d at 127.
6
prejudicial opinion testimony and evidence of narcotics found at
the scene of the crime; and (7) that trial counsel's failure to
call a forensic expert rendered his assistance constitutionally
ineffective. After the Warden moved for summary judgment, a
federal magistrate recommended that the motion be granted and that
Davis' petition for writ of habeas corpus be denied. Davis filed
timely objections. The district court, reviewing de novo, adopted
the magistrate's findings without a hearing and dismissed Davis'
petition. Subsequently, the district court granted a certificate
of probable cause and Davis appealed. She is now before this Court
pro se and in forma pauperis, pursuant to 28 U.S.C. § 2253.
We review the district court's grant of summary judgment de
novo, applying the same standard as did the district court.
Summary judgment is appropriate when there are no genuine issues of
material fact and the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c); Valles v. Lynaugh, 835 F.2d
126, 127 (5th Cir. 1988).1 Having reviewed each of Davis'
constitutional claims, we conclude that summary judgment was
appropriate and therefore affirm.
INDICTMENT ISSUES
The indictment charging Davis with attempted capital murder
states that Davis:
[D]id then and there, with specific intent to commit the
offense of Capital Murder of [seven named officers],

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2Texas Penal Code §19.02(b)(1) defines murder as follows: "[a]
person commits an offense if he intentionally or knowingly causes
the death of an individual." Texas Penal Code §19.03(a) defines
capital murder as follows:
A person commits an offense if he commits murder as
defined under Section 19.02(b)(1) of this code and: (1)
the person murders a peace officer or fireman who is
acting in the lawful discharge of an official duty and
who the person knows is a peace officer or fireman.
Texas Penal Code §15.01(a) defines attempt as follows:
A person commits an offense if, with the specific intent
to commit an offense, he does an act amounting to more
than mere preparation that tends but fails to effect the
commission of the offense intended.
7
intentionally shoot at [seven named officers], with a
deadly weapon, to-wit: a firearm, and the said [seven
named officers] were then and there peace officers who
were acting in the lawful discharge of an official duty
and who the defendant knew were peace officers, which
amounted to more than mere preparation that tended but
failed to effect the commission of the offense intended.
Davis claims that her state court indictment is fatally
defective for failure to allege an essential element of the offense
of attempted capital murder.2 The intent to cause death, Davis
argues, which encompasses both the required culpability and the
required result of the crime alleged, is not sufficiently charged
by the allegation that she had the "specific intent to commit the
offense of Capital Murder." See Hamling v. United States, 94 S.
Ct. 2887, 2907 (1974) (indictment is sufficient if it alleges facts
necessary to prove the offense, bar a second prosecution for the
same conduct, and give the defendant notice of the charged
offense); see also TEX. CODE CRIM. PROC. art. 21.03 (Vernon 1989)
(indictment must include everything that is required to be proven).
Davis also maintains that she is entitled to relief because there
was a material variance between the act alleged in the indictment

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8
and the subsequent proof at trial. The indictment alleges that
Davis fired upon the officers, whereas at trial there was no such
proof and she was convicted instead as a party to Mangrum's
attempted offense. The Warden responds that both issues are beyond
the scope of federal habeas review in this case. We agree.
Federal habeas corpus relief based on a prisoner's challenge
to her indictment is not appropriate unless the indictment was so
defective that the convicting court had no jurisdiction. Williams
v. Collins, 16 F.3d 626, 637 (5th Cir.), cert. denied, 115 S. Ct.
42 (1994); Alexander v. McCotter, 775 F.2d 595, 598 (5th Cir.
1985); Liner v. Phelps, 731 F.2d 1201, 1203 (5th Cir. 1984); Branch
v. Estelle, 631 F.2d 1229, 1233 (5th Cir. 1980). This Court must
give "due deference to the state court's interpretation of its own
law that a defect of substance in an indictment does not deprive a
state trial court of jurisdiction." McKay v. Collins, 12 F.3d 66,
69 (5th Cir.), reh'g granted on other grounds, 12 F.3d 70 (5th
Cir.), cert. denied sub nom., Williams v. Scott, 115 S. Ct. 157
(1994). Texas courts have held that failure to include an
essential element of the offense charged does not deprive a trial
court of jurisdiction. Id. (citing Struder v. State, 799 S.W.2d
263 (Tex. Crim. App. 1990); see also State v. Oliver, 808 S.W.2d
492, 493-94 (Tex. Crim. App. 1991); Rodriguez v. State, 799 S.W.2d
301, 302-03 (Tex. Crim. App. 1990) (an indictment that fails to
allege an essential element is nevertheless sufficient to confer
jurisdiction). Moreover, once the state's highest court has
reviewed the indictment and found it sufficient to vest

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9
jurisdiction, further review by the federal habeas court is
precluded. Alexander, 775 F.2d at 598; Liner, 731 F.2d at 1203;
see also McKay, 12 F.3d at 68-69. By denying Davis relief on
habeas corpus, the Texas Court of Criminal Appeals has necessarily,
though not expressly, held that Davis' indictment is sufficient to
vest the Texas trial court with jurisdiction. See id. at 68-69;
Alexander, 775 F.2d at 599. Thus, federal habeas review of Davis'
claims related to the adequacy of her indictment is precluded.
SELF-DEFENSE INSTRUCTION
Davis claims that the trial court's refusal to give an
instruction on self-defense violated her constitutional right to
due process of law. The trial court's refusal to issue the
requested instruction was not error unless there was evidence from
which a reasonable jury could have found in Davis' favor on the
theory of self defense. Mathews v. United States, 108 S. Ct. 883,
887 (1988). Further, to prove constitutional error cognizable
under § 2254, Davis must also demonstrate that the instruction
rendered her trial fundamentally unfair in violation of the Due
Process clause. Henderson v. Kibbe, 97 S. Ct. 1730, 1737 (1977).
Finally, Davis' burden is even heavier in this case because she
challenges the trial court's refusal to give a requested
instruction, rather than any misstatement of the law. Id. at 1737
(omission or incomplete instruction less likely to be prejudicial
than misstatement of law).
Under Texas law a person is justified in using force against
another when she reasonably believes that force is immediately

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3Dr. Covington treated Davis' wounds to the shoulder and
elbow. His testimony concerning the wound to her jaw and neck was
based on his recollection of her medical record.
10
necessary to protect herself from another's use of unlawful force.
TEX. PENAL CODE §9.31(a) (Vernon 1994). The use of force to resist
an arrest or search is justified only if, before the actor offers
any resistance, the peace officer uses or attempts to use greater
force than is necessary. TEX. PENAL CODE § 9.31(C)(Vernon 1994).
Davis contends she was entitled to a self-defense instruction
because she received a shotgun wound to the neck and jaw while she
was facing the officers and before she had taken any action to arm
herself. The record does not support her claim. Officers Radney,
Bennett and Herbert all testified that Davis was facing away from
them at the time they reached the doorway. Although Wilkerson
testified that he returned from the kitchen and fired a single shot
into the bedroom, the record does not support the inference that
this occurred before the other three officers reached the open door
to the bedroom. Indeed, it appears from the record that the three
officers reached the doorway and began shooting almost immediately
after Wilkerson was shot and while he was still in the kitchen
changing his weapon from the right hand to the left. Wilkerson
testified that, when he returned from the kitchen, he saw Mangrum
being shot by one of the other officers.
The only witness to testify concerning Davis' wounds was Dr.
Covington.3 Covington did testify that the location of the bullet
lodged in the left side of Davis' neck indicated that she was
facing her attacker when the shot was fired. However, he also

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11
testified that her wounds could be consistent with the officers'
testimony about Davis' position as demonstrated by the prosecutor,
provided that her head was turned toward the doorway. Beyond this
inconsistency, which was resolved at trial, Davis' counsel did not
further develop the theory of self-defense by questioning either
the ballistics expert or the physics professor, both of whom were
called by the defense and both of whom testified about bullet
trajectory and other physical evidence related to the issue of
whether Mangrum fired a second shot.
The record does not support Davis' claim that she received a
shotgun blast to the face before she reached for the shotgun.
There is no other evidence that would support the finding that the
officers engaged in unlawful force. Because the evidence was
insufficient as a matter of law to allow Davis to prevail on a
theory of self-defense, the trial court did not err by failing to
give that instruction and the district court properly granted
summary judgment on that claim.
For similar reasons, Davis' claim that the evidence defies
physical laws is equally unavailing. As demonstrated by the
prosecutor at trial, Covington's testimony that Davis' head was
facing her attackers and the officers testimony about her posture
while turning with the gun were not mutually inconsistent. A mere
conflict in testimony does not make one version of events
impossible and the trier of fact was entitled to accept Dr.
Covington's assessment that Davis' wounds were consistent with the
officers' testimony.

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4Before submission, the prosecution elected to submit only the
issue of whether Davis was party to Mangrum's attempt on Officer
Wilkerson's life. Offenses against the other officers were not
submitted to the jury.
12
SUFFICIENCY OF THE EVIDENCE
Davis contends that the evidence was insufficient to support
her conviction as a party to David Mangrum's attempt on Officer
Wilkerson's life.4 A prisoner is entitled to § 2254 relief on a
challenge to the sufficiency of the evidence used to convict her
if, based upon the evidence adduced at trial, and viewing the
evidence in the light most favorable to the prosecution, no
reasonable trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 324 (1979); Valles v. Lynaugh, 835 F.2d 126, 128 (5th Cir.
1988).
Because Davis was convicted as a party to David Mangrum's
conduct, the State was required to prove both (1) that Mangrum
committed attempted capital murder, and (2) that Davis, acting with
the intent to promote or assist Mangrum's offense, encouraged,
directed, aided or attempted to aid his attempt on Officer
Wilkerson's life. Tex. Penal Code 7.02(a)(2) ("a person is
criminally responsible for the 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"). The
State satisfied its burden to prove each element of Mangrum's
offense beyond a reasonable doubt. A person commits attempted

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13
capital murder if, acting intentionally or knowingly, he attempts
to cause the death of an individual who the offender knows is a
peace officer, when that officer is acting in the lawful discharge
of an official duty. See TEX. PENAL CODE § 19.02(b)(1) (defining
murder); § 19.03(a)(1) (defining capital offenses) (Vernon 1994).
Attempt is defined as an act, taken with the specific intent to
commit the offense, which tends but fails to effect commission of
the offense. TEX. PENAL CODE § 15.01(a). Mangrum shot and wounded
Officer Wilkerson, while he was executing a valid evidentiary
search warrant. See Godsey v. State, 719 S.W.2d 578, 580-84 (Tex.
Crim. App. 1986) (en banc) (deliberately pointing gun at police
officer sufficient to demonstrate intent to kill and an act
amounting to more than mere preparation to commit the offense of
attempted murder, although offender never fired a shot because his
actions were terminated by officer gunfire). Despite a noisy
arrival and numerous announcements that police officers were
entering the residence, Mangrum had the time and presence of mind
to secure a deadly weapon and assume a combat position for firing
before Wilkerson, who was wearing a conspicuous police raid jacket,
entered the open doorway to the bedroom. We conclude that any
juror could have reasonably found every element of Mangrum's
offense beyond a reasonable doubt.
Although the issue is closer, the State also satisfied its
burden to prove that Davis acted with the intent to assist
Mangrum's offense and that she acted to aid or attempted to aid
that offense. Participation in an offense may be inferred from the

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14
circumstances and need not be shown by direct evidence. Beardsley
v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987). Although
presence at the scene of the crime alone is not sufficient to prove
liability as a party to the offense, it is a factor that may be
considered along with other evidence. Id.; Barron v. State, 566
S.W.2d 929, 932 (Tex. Crim. App. 1978). In determining whether
Davis was criminally responsible for Mangrum's conduct, the jury
was entitled to look at events occurring before, during and after
the offense. Cornejo v. State, 871 S.W.2d 752, 755-56 (Tex. App.
Houston [1st Dist.] 1993, pet. ref'd).
The evidence showed that when the entry team officers arrived
at Mangrum's house, their truck skidded in the gravel and almost
hit the house. As the officers disembarked the truck, they began
announcing the identity and their purpose. Each of the officers
was wearing a raid jacket that identified them as police officers.
Between the time the officers arrived and the time that Wilkerson
entered the open doorway to the bedroom, Mangrum had time to arm
himself with a 9 mm pistol and assume a combat-ready firing
position. There were at least three other guns on the bed in which
both Mangrum and Davis were sitting shoulder to shoulder when
Officer Wilkerson stepped into the open doorway. Almost
immediately after Mangrum shot Wilkerson, Davis is seen holding a
loaded double-barrel shotgun and turning towards the doorway where
four officers were standing. She did not cease her movement until
she was stopped by police gunfire. After the gunfire stopped,
Davis is seen still clutching the shotgun beneath her body. Davis

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15
was not a stranger to the house. Although it was disputed whether
she was living in the house when the warrant was executed, it was
undisputed that had lived there with Mangrum as recently as the
year before the offense.
Davis claims that the spontaneous nature in which the search
warrant was executed made it impossible for her to have formed the
intent to aid Mangrum in his offense. However, intent to promote
or assist another's offense can be inferred from evidence of an
implicit agreement formulated contemporaneous with the offense or
by conduct suggesting a common design to execute the offense. See,
e.g., Curtis v. State, 573 S.W.2d 219, 222 (Tex. Crim. App. 1978)
(implicit contemporaneous agreement demonstrated by fact defendant
joined in the fray with the knowledge that his co-defendant
intended to beat up the victim). Davis also argues that reaching
for a gun is not an act sufficient to support the inference that
she aided or attempted to aid Mangrum's offense of attempted
capital murder. Davis did more than reach for the gun. The
undisputed evidence was that she was holding the loaded double-
barrel shotgun in a position to fire and attempting to turn on the
officers waiting in the doorway. At that point Davis posed an
equal or even greater threat to the officers clustered in the
doorway, which divided the officers' attention and served to aid
Mangrum's offense. Davis decided on that course of action in spite
of the fact that police officers, clearly identified with raid
jackets bearing the word "POLICE" in large block letters, were
standing in the open doorway to the bedroom in broad daylight

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5Davis also argues that she cannot be liable as a party to
Mangrum's offense because she did not reach for the gun until after
he had fired on the officers, relying on Ortiz v. State, 577 S.W.2d
246 (Tex. Crim. App. 1979) for the proposition that a defendant
cannot be party to an offense that is complete when the defendant
renders aid. Ortiz stands only for the proposition that mere
presence at the crime scene is insufficient to render a party
liable for the criminal offense of another. The undisputed
testimony at trial was that Mangrum continued to aim the pistol at
the officers who were present in the open doorway. Davis,
meanwhile, had secured a loaded shotgun and was turning towards the
officers with the weapon. Therefore, Mangrum's offense was not
complete until after Davis had armed herself. E.g., Godsey, 719
S.W.2d at 580-84 (pointing loaded gun is an act that amounts to
more than mere preparation for the offense of attempted murder).
16
returning fire on Mangrum. We can think of no more expedient way
to assist a would-be murderer than by picking up a gun and
attempting to shoot at his adversaries. The context of Davis'
conduct demands the conclusion that she intended to assist and
acted to aid Mangrum's attempt on Wilkerson's life.5 Because there
is no fact issue related to Davis' claim that the evidence used to
convict her as a party to Mangrum's offense was insufficient,
summary judgment was proper as to this claim.
EVIDENTIARY ISSUES
Officers' Testimony
Davis contends that the introduction of certain statements by
Officers Radney and Herbert deprived her of due process. Officer
Radney testified that Davis (identified in the question as the
person with the "long gun") was "attempting to aid David Mangrum."
Officer Herbert was asked what would have happened if the officers
had not shot Davis. He responded:
The length of the barrel of a shotgun is short, and being
a double-barrel shotgun, that shotgun would have covered

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17
a lot of the doorway, and probably would have got at
least two of us.
Davis argues that because her guilt as a party depended upon
whether she intended to aid Mangrum, that Radney essentially
testified as to her guilt. Davis objects to Officer Herbert's
testimony as being unduly prejudicial and as impermissibly
characterizing her present state of mind.
Because the Texas Court of Criminal Appeals summarily denied
both Davis' petition for direct review and Davis' single state
habeas petition without issuing findings of fact or a written
opinion, the Texas Court of Appeals issued the last reasoned
opinion by a state court. See Goodwin v. Collins, 910 F.2d 185
(5th Cir. 1990), cert. denied, 501 U.S. 1253 (1991). That court
held that Davis had waived these claims by failing to object to
similar testimony at trial, some of which was elicited by Davis'
own counsel. For example, before Officer Radney ever testified,
Davis trial counsel asked Wilkerson whether he had observed Davis
attempting to aid Mangrum. Later, after his objection to Officer
Radney's testimony was overruled, trial counsel asked Officer
Bennett the same question.
When the last state court to consider the claim expressly and
unambiguously bases its denial of relief on a state procedural
default, federal habeas review is precluded absent a showing of
cause for and actual prejudice resulting from the default. E.g.,
Goodwin, 910 F.2d at 186-87. Davis has made no such showing,
either in the district court or on appeal. Davis' objections to
testimony by Officer Radney and Officer Herbert have been

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18
procedurally defaulted and are not subject to further review and
the district court properly granted summary judgment as to those
claims.
Narcotics Evidence
Davis objects to admission of controlled substances retrieved
from Mangrum's house. After the shoot-out, the search warrant was
executed and law enforcement recovered three plastic bags
containing small amounts of marijuana (14.83 grams and seeds), a
metal box containing 4.63 grams of methamphetamine, a bag
containing 23.74 grams of amphetamine, a bag containing 6.10 grams
of amphetamine, a bag containing 5.03 grams of amphetamine, a
syringe filled with liquid containing amphetamine and miscellaneous
items of drug paraphernalia from the bed occupied by Davis and
Mangrum. Officers also seized three pounds and six ounces of
phenylacetone in liquid form from the barn and 4.95 grams of
phenylacetone from the kitchen. Phenylacetone is a precursor
chemical in methamphetamine production.
Davis claims that admission of the narcotics evidence was
unfairly prejudicial and tended to characterize her as a drug
addict. Texas generally allows evidence of an extraneous offense
when relevant to show the context or "res gestae" of an arrest.
E.g., Wilkerson v. State, 736 S.W.2d 656, 659-661 (Tex. Crim. App.
1987); Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim. App.
1972). Davis concedes that the circumstances of an individuals's
arrest are usually admissible against them, but maintains that the
rule is not broad enough to allow introduction of the narcotics

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19
evidence in her case because there was not a sufficient connection
between the narcotics and the charged offense of attempted capital
murder. We disagree.
The police officers went to the house that day to execute a
search warrant for narcotics. Large quantities of narcotics were
found on the bed and in close proximity to Davis on or around the
bed. E.g., Archer v. State, 607 S.W.2d 539, (Tex. Crim. App. 1981)
(evidence of narcotics found on person of defendant charged with
unlawful possession of firearm properly admitted). In addition,
both Texas and federal law provide for the admission of evidence of
other crimes or wrongs to show motive. See TEX. R. CRIM. EVID.
404(B); FED. R. EVID. 404(b). We conclude that evidence of the
narcotics and paraphernalia seized at Mangrum's residence was
admissible as probative on the issue of Davis' motive for
attempting to shoot at the officers and because it established the
context in which the offense occurred. Because the evidence was
properly admitted, summary judgment was properly granted on Davis'
claims related to the introduction of narcotics evidence.
INEFFECTIVE ASSISTANCE
To succeed on an ineffectiveness claim, Davis must demonstrate
both deficient performance and prejudice to her defense. Strickland
v. Washington, 466 U.S. 668, 690-94 (1984). Counsel's performance
is constitutionally deficient if it falls outside the range of
professionally competent assistance. Id. To demonstrate
prejudice, a defendant must show that there is a reasonable

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20
probability that, but for counsel's unprofessional errors, the
result of the trial would have been different. Id.
Davis argues that trial counsel was deficient because
reasonably competent counsel would have moved for appointment of a
forensics expert to support her claim that she was shot before she
had taken any action to arm herself. That testimony, Davis argues,
would demonstrate that the officers were using excessive force,
which would have entitled her to an instruction on self-defense,
which would in turn have changed the result of the trial.
Ineffective assistance claims that are based on counsel's
failure to call a witness are viewed with caution, particularly
when, as here, the only evidence of how the witness would have
testified comes from the defendant. See Lockhart v. McCotter, 782
F.2d 1275, 1282 (5th Cir. 1986), cert. denied, 479 U.S. 1030
(1987); United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir.
1983), cert. denied, 467 U.S. 1251 (1984). The presentation of
witnesses is inherently an area that implicates the exercise of
sound trial strategy and speculation as to how the uncalled witness
would have testified makes such claims uncertain. Cockrell, 720
F.2d at 1427. We have typically required, therefore, that a habeas
petitioner demonstrate, by affidavits or otherwise, not only that
the un-called forensic expert would have expressed an opinion in
her favor but also that the expert would have been available to
testify at trial. See, e.g., Alexander v. McCotter, 775 F.2d 595,
602 (5th Cir. 1985) (citing Boyd v. Estelle, 661 F.2d 388, 390 (5th

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Cir. 1981)). Davis has not raised a genuine issue of fact on
either point.
In addition Davis failed to present any evidence capable of
overcoming the strong presumption that counsel's decision not to
call an additional witness was the result of a considered and sound
trial strategy. See Strickland, 104 S. Ct. at 2065. To the
contrary, Davis' counsel called a ballistics expert as well as a
physics professor, who both testified at length about bullet
trajectory on the issue of whether Mangrum fired a second shot from
the bedroom. Neither of these witnesses was asked a single
question about the source or timing of Davis' wounds.
Finally, Davis is unable to demonstrate prejudice. She claims
that a forensic expert could have established that she must have
been shot before she picked up the shotgun. Any such testimony
would have been cumulative to Dr. Covington's testimony that Davis
was probably shot while facing her attackers. See Lavernia v.
Lynaugh, 845 F.2d 493, 498 (5th Cir. 1988) (counsel's failure to
call witness whose testimony would have been cumulative did not
amount to ineffective assistance). Davis' claim of ineffective
assistance is conclusory. She has not raised any genuine issue of
fact which would support the required findings of deficient
performance and prejudice and summary judgment was properly granted
as to that claim.
For the foregoing reasons, the district court is AFFIRMED.

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