Ex Parte Santiago Margarito Rangel VARELAS, Applicant.
No. 73632.
Court of Criminal Appeals of Texas, En Banc.
Jan. 31, 2001.
Concurring Opinion on Denial of Rehearing May 23, 2001.
45 S.W.3d 627
OPINION
HOLLAND, J., delivered the opinion of the Court in which MEYERS, J., PRICE, J., JOHNSON, J., and HOLCOMB, J., joined.
This is a post-conviction application for a writ of habeas corpus filed pursuant to
To show that his trial counsel was ineffective, applicant must meet the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, applicant must demonstrate that counsel‘s performance was deficient. See id. at 687, 104 S.Ct. 2052. In order to satisfy this prong, applicant must demonstrate that counsel‘s performance fell below an objective standard of reasonableness, as judged on the facts of a particular case and viewed at the time of counsel‘s conduct. See id. at 688, 690, 104 S.Ct. 2052. Second, applicant must show that counsel‘s performance prejudiced his defense at trial. See id. at 692, 104 S.Ct. 2052. “It is not enough for the [applicant] to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693, 104 S.Ct. 2052. Rather, applicant must show there is a reasonable probability that the result of the proceeding would have been different but for the errors made by counsel. See id. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
Texas courts have consistently adhered to the standard set out in Strickland. See generally McFarland v. State, 928 S.W.2d 482 (Tex.Crim.App.1996). “Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” Id. at 500. This Court recognizes that counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. See id.; see also Strickland, 466 U.S. at 690, 104 S.Ct. 2052.
The claim of ineffective assistance of counsel is cognizable through an application for writ of habeas corpus, even if it was a claim raised and rejected on direct appeal. See Ex parte Torres, 943 S.W.2d 469, 475 (Tex.Crim.App.1997). In most cases, the record on direct appeal is
At trial, the State presented evidence that L.W.‘s death resulted from her being kicked or hit so forcefully in the abdomen that her heart tore in four different places. Additionally, the State presented еvidence of the physical abuse that L.W. had sustained over the six weeks before her death. She suffered fractured ribs, bruises all over her body, a burn on her arm, and a cut on her face. There was no eyewitness testimony concerning the cause of L.W.‘s injuries or her death.
During applicant‘s trial, the State submitted evidence of several extraneous acts allegedly committed by applicant against L.W. in an effort to show applicant‘s state of mind, intent, relationship and motive. Specifically, the State presented evidence that applicant had excessively dunked L.W. in a swimming pool, had “thumped” the back of her head, had pushed her with his foot, had made her sit still on a couch for over two hours, and had hit her the night before her death. The State argued that applicant committed these extraneous acts, and because he had committed these acts, he must have been the person responsible for L.W.‘s death. In contrast, applicant‘s attorneys advanced the theory that applicant‘s wife, L.W.‘s mother, committed the offense in question. Thus, whether applicant had a pattern of abusing L.W. was essential to the State‘s case against applicant. Applicant‘s attorneys failed to request that either burden of proof or limiting instructions be included in the guilt/innocence charge regarding these extraneous acts, even though the attorneys noted during pre-trial hearings that such instructions would be proper.
Extraneous acts are generally inadmissible at the guilt/innocence stage of a trial. See
(a) In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.
Once an extraneous act has been ruled admissible, the jurors must be instructed about the limits on their use of that extraneous act if the defendant so requests. This Court has held for many decades that “when evidence of collateral crimes is introduced for one of the various purposes for which such evidence becomes admissible, the jury should be instructed that they cannot consider against the defendant such collateral crimes, unless it has been shown to their satisfaction that the accused is guilty thereof.” Lankford v. State, 93 Tex.Crim. 442, 248 S.W. 389, 389 (1923). In other words, a jury should be instructed that they are not to consider extraneous act evidence unless they believe beyond a reasonable doubt that the defendant committed that act. See Harrell v. State, 884 S.W.2d 154, 157 (Tex.Crim.App.1994). “If a defendant, during the guilt/innocence phase, asks for an instruction to the jury on the standard of proof required for admitting extraneous offenses, the defendant is entitled to that instruction.” Mitchell v. State, 931 S.W.2d 950, 954 (Tex.Crim.App.1996). Therefore, if applicant‘s counsel had requested the jury to be instructed that they could not consider the extraneous act evidence unless they believed beyond a reasonable doubt that applicant committed those acts, the requested charge should have been given.2
Likewise, when the State is permitted to introduce evidence of defendant‘s extraneous acts for a limited purpose, the defendant also has the burden of requesting an instruction limiting consideration of those acts.3 See Abdnor v. State (Abdnor II), 808 S.W.2d 476, 478 (Tex.Crim.App.1991). When a defendant so requests this instruction, the trial court errs in not giving the instruction. See id. at 478. In pre-trial hearings, the State argued that the extraneous acts were admissible for the limited purpose of showing state of mind, intent, relationship, motive and to rebut defensive issues. Therefore, if applicant‘s counsel had requested that the jury be instructed that they could consider the extraneous act evidence only for the limited purposes for which it was offered, the trial court would have been required to give the requested instruction.4 See George v. State, 890 S.W.2d 73, 76 (Tex.Crim.App.1994) (stating that “if the defendant so requests at the guilt/innocence phase of trial, the trial court must instruct the jury not to consider extraneous offense evidence admitted for a limited purpose unless it believes beyond a reasonable doubt 3 4
On direct appeal of applicant‘s conviction, we considered the argument that his trial counsel was ineffective. See Varelas v. State, No. 72178, slip op. at 8 (Tex.Crim.App. March 4, 1997) (not designated for publication). At that time, we stated,
In light of the number of ways and the degree to which a defendant can suffer harm from the admission of extraneous offense evidence, we have trouble understanding why trial counsel did not request a burden of proof or limiting instruction regarding these offenses. However, the bare record does not reveal the nuances of trial strategy. Further, to hold trial counsel‘s actions (or inaction) ineffective in the instant case would call for speculation and such speculation is beyond the purview of this Court. Rather, because of the strong presumptions that trial counsel‘s conduct falls within the wide range of reasonable professional assistance and that such conduct might be sound trial strategy, we must conclude, in light of an otherwise silent record, that appellant failed to meet his burden of showing that his trial counsel‘s assistance was ineffective.
Id. at 10-11 (citations and footnote omitted). At the time of applicant‘s direct appeal, we were unable to determine his attorney‘s reasons for failing to object to the omissions in the charge.
But we now have before us an affidavit from applicant‘s trial counsel and can now determine whether such failure was a product of trial strategy. Trial counsel‘s affidavit states:
I have read the Court of Criminal Appeals opinion in which the Court “had trouble understanding why trial counsel did not request a burden of proof or limiting instruction regarding these offenses.” ... I can now assure the Court that my failure to request these instructions was not the result of trial strategy. It was simply an oversight. I was aware of Harrell and George at the time of the trial, but I simply neglected to invoke them and ask the trial court either for a burden of proof instruction or a limiting instruction. I had no reason in fact not to request these instructions, nor can I think of any reason I should not have requested them on the facts of Mr. Varelas‘s case.
Trial counsel further stated in the affidavit that the instructions would have been consistent with the two defensive issues raised at trial: one, that L.W.‘s mother killed her or; two, that applicant killed her, but there was not a specific intent to kill L.W. Trial counsel‘s conduct fell below an objective standard of reasonableness by failing to request the jury instructions. The trial court would have been required to give the instructions had counsel requested them, and reasonable counsel would have requested the instructions given the facts of this case. Therefore, we conclude that trial counsel‘s performance was deficient for failing to request either an instruction on the burden of proof or limiting instructions regarding the extraneous act evidence admitted at applicant‘s trial.5
Because this charge did not contain the appropriate burden of proof for the extraneous act evidence, it is reasonable to presume that the jury did not necessarily find beyond a reasonable doubt that the extraneous acts were committed by applicant before using this evidence against him.6 See id. at 740 (stating that “where no instruction is given, we cannot follow the presumption that the jury properly considered the evidence at trial.“).7 Similarly, the charge did not contain a limiting instruction telling the jury to consider the extraneous acts only for the purposes for which they were admitted-namely state of mind, intent, relationship, motive and to rebut defensive issues. Without such an instruction, the jury was likely to consider the extraneous acts as direct evidence of applicant‘s guilt; that is, that he acted in conformity with his character. See id. at 738 (stating that “where no limiting instruction is given, ... we must conclude that any prejudice resulting from introduction of the extrаneous offense is unabated.“).
On the other hand, applicant‘s attorneys attempted to create a reasonable doubt by arguing their defensive theory that L.W.‘s mother was responsible for the injuries and death of L.W. To strengthen applicant‘s defense, they presented evidence of the mother‘s temper. Through medical testimony, it was shown that the mother could have killed L.W.-she had both the opportunity and the strength required. Other medical evidence that was presented showed that the CPR efforts used in an attempt to save L.W. could have caused some of the injuries and bruising found on L.W.‘s body. Applicant‘s attorneys also attempted to discredit the one witness, a long-time friend of L.W.‘s mother, who testified regarding the extraneous acts. Applicant‘s attorneys portrayed this witness as a drug-user and highlighted inconsistencies in her testimony. Essentially, applicant‘s attorneys sought to persuade the jury to question her motivation and truthfulness in testifying. Whether the jury believed this witness‘s testimony was also key to the State‘s case. If the jury did not believe her, then they might not believe applicant was physically abusing L.W. or had been the cause of her death. Finally, applicant‘s attorneys produced testimony that Child Protective Services had investigated L.W.‘s household and had found no evidence of child abuse on the part of applicant.
Moreover, the State produced little evidence linking applicant to L.W.‘s death aside from the evidence concerning the extraneous acts. An inmate who shared a jail cell with applicant before his trial testified that applicant told him that he kicked a girl, but that it was an accident. In response, applicant‘s attorneys emphasized that the inmate knew only limited Spanish, while applicant understood only minimal English. The defense questioned how well the inmate could actually understand what applicant stated in the cell and questioned the inmate‘s motive in giving the testimony. The State also presented evidence that applicant reacted too calmly after finding out that L.W. had died, that L.W.‘s siblings were afraid of applicant, and that applicant slept at the police station while waiting to be interviewed. In the videotaped statement of applicant taken by officers, applicant gave his account of the morning L.W. died. He stated that from the time L.W. woke up, she was quiet and kept falling down. When she became unconscious, applicant attempted CPR on her. When that did not work, he then carried her next door and the neighbor called 9-1-1. Applicant denied ever hitting or hurting L.W., and he stated that he treated L.W. better than her own father did.
Considering all of the evidence presented by both the State and applicant‘s trial attorneys, we conclude that applicant‘s defense was prejudiced because the jury did not receive instructions on the burden of proof or limiting instructions for the extraneous acts. The jury was specifically instructed in the court‘s charge that they “may considеr all relevant facts and circumstances surrounding the death of [L.W.], if any, and the previous relationship existing between the accused and the deceased ...” in determining if applicant was guilty. By not requiring the jury to find applicant committed the extraneous acts beyond a reasonable doubt before considering them as evidence during their deliberations, the jury was left with no guidance as to the proper weight to be given to
Finally, by not requesting the proper instructions, applicant‘s trial counsel jeopardized the jury‘s ability to find applicant guilty only of a lesser-included offense. In the charge, the jury was instructed to consider the charges of involuntary manslaughter and criminally negligent homicide if they did not find applicant guilty of capital murder. As previously explained, by not holding the jury to the proper burden of proof and limiting instructions regarding the extraneous acts, the likelihood of the jury finding applicant guilty of capital murder dramatically increased. Conversely, there was a lesser chance that the jury would instead find applicant guilty of involuntary manslaughter or criminally negligent homicide. Under the facts of this case, there is a reasonable probability that applicant would have been convicted only of a lesser-included offense had the proper instructions been given. If the jury did not believe that applicant committed the extraneous acts, then they might not have believed he was engaged in a pattern of abusing L.W. Without a strong pattern of abuse, it would have been increasingly difficult for the jury to find applicant intentionally caused L.W.‘s death. Instead, the jury probably would have found appellant not guilty or, at the most, guilty of unintentionally causing L.W.‘s death, i.e., involuntary manslaughter or criminally negligent homicide.
Thus, we conclude that applicant has demonstrated prejudice by not having a burden of proof or limiting instruction on the extraneous acts in the charge at guilt/innocence. Applicant was prejudiced because the charged offense was similar in nature to the extraneous acts, and the extraneous acts were likely considered as direct evidence of applicant‘s guilt. Applicant‘s defense that L.W.‘s mother killed her was undermined because the jury was essentially informed that applicant had harmed L.W. in the past, and therefore, he was the cause of her death. Also, applicant‘s chances for being convicted only of a lesser-included offenses were severely diminished. We conclude that this harm is “sufficient to undermine confidence in the outcome” of applicant‘s trial. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. There is a reasonable probability that, but for the errors committed by applicant‘s attorneys, the result of his trial would have been different. We grant the relief applicant requests, and we remand the cause for a new trial.
KELLER, J. delivered a dissenting opinion in which KEASLER, J., joined.
KELLER, J. delivered a dissenting opinion in which KEASLER, J., joined.
At trial, the State introduced evidence of extraneous injuries suffered by the child victim. Defense counsel did not ask for a limiting instruction, nor did counsel request a reаsonable doubt instruction. Judge Womack has addressed the reasonable doubt issue in his dissenting opinion, and I join that opinion. In this opinion I take issue with the Court‘s holding that counsel was ineffective for failing to request a limiting instruction.
The Court‘s opinion assumes that applicant was entitled to a limiting instruction and that counsel should have known that applicant was entitled to a limiting instruction. These assumptions are based upon the idea that the injuries constituted extraneous offenses covered by
In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.
Recently, in Smith v. State, the Court decided that
The trial in the present case occurred before this Court‘s decision in Smith. Before Smith, no case had held that evidence admissible under
There is also some indication in the legislative history that
Moreover, even absent
I respectfully dissent.
WOMACK, J., filed a dissenting opinion in which KELLER, P.J., and KEASLER, J., joined.
I do not think that counsel‘s failure to request a charge to the jury on the burden of proof for an “extraneous offense” was “in light of all the circumstances, ... outside the wide range of professionally com-
In applicant‘s trial, evidence of the extraneous offenses was central to the State‘s case-in-chief. The State argued from its opening statement to its closing argument that applicant was responsible for the injuries found on L.W., and therefore, was responsible for her death.
On the other hand, applicant‘s attorneys attempted to create a reasonable doubt by arguing their defensive theory that L.W.‘s mother was resрonsible for the injuries and death of L.W.3
Since this was what the trial was all about, the jury necessarily decided the applicant‘s guilt by deciding whether they believed beyond a reasonable doubt that he, rather than the mother, inflicted the extraneous injuries. The jury were properly charged on the beyond-a-reasonable-doubt standard for this decision. It is not reasonable to suppose that they neglected that standard in making the crucial decision in the case, or that their use of that standard would have been probable only if the charge contained another instruction on the standard for believing evidentiary facts.
The applicant‘s trial counsel swears that his failure to request a separate charge “was simply an oversight.”4 It was an understandable one, since his defensive theory was comprehended perfectly well by the reasonable-doubt charge that was given. He overlooked the charge on evidence, I conclude, because it was of no importance to his case.
I do not think that the applicant has met either test for proving that he suffered from ineffective assistance of counsel. I would deny relief.
I would like to make another point about this charge on the burden to prove an evidentiary fact. The аuthority for giving such a charge is George v. State, 890 S.W.2d 73 (Tex.Cr.App.1994).5 In that case the Court held, “Because the standard of proof necessary to admit extraneous offenses is beyond a reasonable doubt, the previous rationale for requiring the jury to find beyond a reasonable doubt that the defendant committed the extraneous offenses continues to exist.”6
The George Court reached its holding in reliance on Harrell v. State, 884 S.W.2d 154 (Tex.Cr.App.1994), by a procedure unsatisfactory to some who thought it was
The standard of proof for the admission of such evidence in the United States has been getting lower in the past century. Texas and a few other jurisdictions used the proof-beyond-a-reasonable-doubt standard before 1957, but modern decisions have not.8 The most common standard has been some version of a “clear proof” standard.9 After adopting rules like the Federal Rules of Evidence, under which the standard is a preponderance of evidence,10 a sizeable minority of jurisdictions have adopted that standard for admissibility of evidence.11 When it comes to the burden of proof that the fact-finder uses in deciding whether the defendant committed uncharged misconduct, there is a consensus that even in criminal cases the prosecutor need not satisfy the burden of proving that fact beyond a reasonable doubt.12
In Harrell, after recording how Texas law also has moved from the proof-beyond-a-reasonable doubt standard to the clear-proof standard,13 which was followed by the adoption of the Federal Rules of Evidence in Texas, this Court held that the standard for admissibility would move back to proof-beyond-reasonable-doubt.14 It did so by holding that “clear” means “beyond a reasonable doubt” because “there is some authority for interpreting ‘clear’ proof to mean proof beyond a reasonable doubt. BLACK‘S LAW DICTIONARY 250 (6th ed.1990); see Haley v. State, 84 Tex.Crim. 629, 209 S.W. 675, 677 (1919).” 15
The Harrell Court did not quote what the law dictionary and the Haley case said about “clear” proof. The following appears in Black‘s Law Dictionary (6th ed.) at 250:
Clear. Obvious; beyond reasonable doubt; perspicuous; plain. Free from all limitation, qualification, question or shortcoming. Free from incumbrance, obstruction, burden, limitation, etc. Plain, evident, free from doubt or conjecture, unequivocal, also unencumbered. Free from deductions or drawbacks.
In banking, collection of funds on which check is drawn and payment of such funds to holder of check.
If it be assumed that the facts of this case bring it within one of the exceptions [to the rule excluding evidence of specific bad acts] to which we will hereafter refer, it is clear that the due administration оf justice demands that evidence tending to show appellant‘s guilt of another crime should not be admitted, unless the proof of the other offense is clear. In this case, if it is proper for the state to use the alleged fact that appellant poisoned his wife as a circumstance connecting him with the assassination of Williams, it should be shown beyond a reasonable doubt that his wife died from poison knowingly administered by him with intent to destroy her. Applying this principle to the case in hand, we find no satisfactory evidence that the appellant‘s wife died from poisoning. ...
If this evidence is received upon another trial, it should be limited in the charge of the court, and it should be made clear to the jury that it is not to be considered at all against the appellant, unless the state had shown beyond a reasonable doubt that appellant‘s wife died from poison knowingly administered by the appellant with intent to kill her.
I do not think that many objective readers would decide that this is sufficient authority to hold that “clear proof” means “proof beyond a reasonable doubt.”
The holding of George is based on reasoning so clearly wrong, and so outside the main current of American law, that I would overrule it.
But even if the applicant was entitled to such a charge, I would not hold that his counsеl‘s failure to ask for one was incompetent or that it undermines my confidence in the verdict. I respectfully dissent.
KEASLER, J., filed a dissenting opinion, in which HERVEY, J., joined.
Varelas claims that his counsel was ineffective in failing to request a limiting instruction and a reasonable doubt instruction as to certain extraneous acts. To establish ineffective assistance of counsel under Strickland v. Washington,1 Varelas must show that his trial counsel‘s performance 1) was deficient2 and 2) prejudiced his case.3 The majority holds that Varelas met both of these requirements and remanded the case for a new trial. I do not find that Varelas satisfied either requirement.
A. Extraneous Offenses
According to the majority the State introduced “extraneous offense” testimony showing that Varelas had excessively dunked L.W. in a swimming pool, “thumped” the back of her head, pushed her with his foot, made her sit still on a couch for over two hours, and hit her the night before her death.4 But Varelas also takes issue with several other extraneous offenses. He labels medical testimony that L.W. suffered multiple bruises, head injuries, anal trauma, and broken ribs as extraneous offenses that should have raised a limiting and reasonable doubt instruction. Although Varelas was not directly linked to any of these injuries, the State introduced evidence that Varelas was the parent with constant access to the child. The following discussion of the ineffective assis-4
B. Deficient Performance
Meeting the deficiency requirement of Strickland requires that the defendant show that trial counsel‘s performance fell below an objective standard of reasonableness,5 based on all the facts and circumstances of the case and viewed at the time of counsel‘s conduct.6 Also, the defendant must prove that counsel‘s errors, judged by the totality of the representation, not by isolated instances of error or by only a portion of trial, denied him a fair trial.7 The purpose of the Sixth Amendment‘s effective assistance guarantee is not to improve the quality of legal representation, although that is an important goal of legal system. The purpose is simply to ensure that criminal defendants receive a fair trial.8
To support its holding that defense counsel was ineffective, the majority states that the trial court would have been required to give limiting and reasonable doubt instructions upon request, and reasonable counsel would have requested instructions given the facts of the case.9 The majority relies heavily on an affidavit from defense counsel asserting that the failure to request a limiting and a reasonable doubt instruction was nоt the result of trial strategy but was an oversight. But the fact that defense counsel now believes she made a mistake does not necessarily mean that she did. Deficiency is viewed objectively, in light of what a reasonable attorney would have done under the circumstances.10
1. Limiting Instruction
With respect to the failure to request a limiting instruction, defense counsel‘s performance was not deficient. As Judge Keller points out in her dissenting opinion, the majority assumes that Varelas was entitled to a limiting instruction. Even though trial counsel now believes that she should have requested a limiting instruction, the trial record renders this belief unreasonable.11 I agree with the majority that if evidence is admitted for a limited purpose, the applicant is entitled to a limiting instruction upon proper request.12 I just do not agree that this evidence was admitted for a limited purpose.
There were two pre-trial hearings about extraneous offenses. One was Varelas’ motion in limine requesting that the State not mention extraneous offenses during voir dire without approaching the bench. The second pre-trial hearing was a motion to suppress extraneous offenses during the guilt/innocence phase of the trial. The majority asserts that the State argued that the extraneous offenses were admissible fоr the limited purpose of showing state of mind, intent, relationship, motive and to rebut defensive issues.13 But this is not the full extent of the State‘s argument. Although the State did argue that the extraneous acts were relevant to show state of mind, intent, relationship, motive, and to rebut defensive issues, the State‘s underly-13
An additional factor showing that these offenses were offered and admitted without limitation is the nature of the extraneous acts. There were several extraneous injuries that defense counsel sought to exclude that were not directly tied to Varelas-namely multiple bruises, head injuries, anal trauma, and broken ribs. None of these would go to show state of mind, intent, relationship, motive, or rebut defensive theories. But these extraneous injuries would show the circumstances surrounding the offense under
In an ineffective assistance claim, it is the appellant‘s burden to prove by a preponderance of the evidence that counsel was ineffective.17 The record reveals that this evidence was not admitted for any limited purpose and Varelas has not shown otherwise. It was not objectively unreasonable for defense counsel to forgo an instruction.
A defendant requesting a reasonable doubt instruction on extraneous acts is entitled to such an instruction.18 But the fact that defense counsel did not request an instruction and a reasonable attorney would have does not necessarily mean that Varelas’ lawyer was ineffective.19 As Judge Womack noted, even though defense counsel felt that her failure to request a separate charge was an oversight, it was an understandable one under the circumstances. A defendant is not entitled to errorless counsel. Trial counsel are bound to make mistakes, and in an ineffective assistance claim we are to evaluate mistakes in light of all the circumstances and the totality of the representation.20 Under this analysis I do not find that defense counsel was deficient in her performance.
C. Prejudice
But even if Varelas had shown that counsel‘s performance was deficient, he has not shown that he was prejudiced. To show prejudice, it is not enough for Varelas to establish that the errors had some conceivable effect on the outcome of his proceedings.21 He must demonstrate that there is a reasonable probability that, but for counsel‘s errors, the fact-finder would have had a reasonable doubt respecting guilt.22 A reasonable probability is a probability sufficient to undermine confidence in the outcome.23 In reviewing this determination, we consider the totality of the evidence before the jury.24
The majority concludes that because there was no limiting instruction or reasonable doubt instruction as to the extraneous offenses, there was prejudice. Citing Abdnor v. State,25 the majority states that when the jury charge does not contain an adequate description of the law, the integrity of the verdict is cаlled into question.26 But in Abdnor after we said that an error or incomplete charge jeopardizes a defendant‘s right to a jury trial, we held that such an error does not result in an automatic reversal.27 It is also important to note the context of the Abdnor opinion. In Abdnor defense counsel requested a limiting instruction which was denied. We reviewed the case to see if the trial judge‘s failure to give a limiting instruction on extraneous offenses caused the defendant “some harm.”28 If there had been no objection at trial we would have looked to see if the defendant suffered “egregious harm.”29 The harm analysis in Abdnor is quite different than the prejudice analysis in Strickland. We look to see if Varelas has shown that there is a reasonable probability that, but for counsel‘s errors, the outcome would have been different.30 Although the majority looks at the effect of the judge not giving instructions on the 25 26 27 28 29 30
1. Limiting Instruction
The majority believes that extraneous offenses were offered for the limited purposes of showing state of mind, intent, relationship, motive and to rebut defensive inferences. Arguably the extraneous аcts that were directly tied to Varelas-shoving L.W. with his foot, dunking her in a pool, thumping her in the head, making her sit still for two hours, and hitting her the night before her death-could be considered by the jury for the limited purpose of rebutting the defensive theory that Varelas’ wife killed L.W. These extraneous acts could also be used to show the relationship between Varelas and L.W., a purpose is not listed in
At trial the State put on evidence that L.W.‘s death was caused by a traumatic blow to her abdomen, probably a kick, so forceful that the impact sent blood gushing from her liver up to her heart causing her heart to tear in four places, quickly fill with blood, and killing her. Varelas’ primary defense was that his wife, Tina, killed her two-year old child. But the testimony at trial revealed that Varelas watched L.W. while Tina was at work and was L.W.‘s primary care-giver during the month prior to her death. According to Varelas’ own taped statement, on the day of L.W.‘s death Tina left for work at 7:09-7:10 a.m. L.W. awoke after Tina left and Varelas noticed that she was acting sad. Varelas claimed that he went to make L.W. breakfast and she just fell down. About three minutes later she fell down again and did not move. Varelas claimed that he applied VapoRub and attempted CPR before taking L.W. to a neighbor‘s house and calling 911 at approximately 7:38 a.m. Although his defense at trial was that Tina abused and eventually killed L.W., during his statement he said that Tina did not abuse L.W. Three medical experts for the State testified that a trauma such as this one would cause death within seconds to a few minutes. If L.W.‘s death was within seconds or minutes of the injury, Varelas’ story could not possibly be accurate. In response, the defense put on a doctor to argue that L.W. would not lose consciousness for 20 minutes up to four hours. In closing, the State directly challenged this time frame. Even if this doctor‘s numbers were correct, the earliest this injury occurred was around 3:00 a.m. The State argued that it was implausible to believe that Tina got up in the early morning hours and kicked this child so forcefully that it caused her death with Varelas hearing nothing in their small trailer home. The timing of the injury was the focal point of the State‘s case and closing argument. The defense did not rebut this argument during closing. Instead, the defense argued that Varelas cared for this child and tried to sаve her and that Tina must have known about the abuse of this child, implying that Tina caused the death of L.W.
Aside from the medical evidence, there was testimony from Varelas’ jail mate that Varelas told him he accidently kicked a girl. There was also evidence that L.W.‘s siblings were afraid of Varelas. Consider-
2. Reasonable Doubt
Even though the judge did not give a reasonable doubt instruction with respect to the extraneous acts specifically, a general reasonable doubt instruction on guilt was given to the jury. I agree with Judge Womack‘s assessment that the jury necessarily decided Varelas’ guilt by deciding whether they believed beyond a reasonable doubt that he, rather than Tina, inflicted the extraneous injuries and caused L.W.‘s death. Even if counsel was deficient for failing to request a reasonable doubt instruction, Varelas has failed to show that the he was prejudiced.
I respectfully dissent.
APPENDIX
In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the state of mind of the accused at the time of the offense.
ON STATE‘S MOTION FOR REHEARING
HOLLAND, J., filed an opinion concurring to the denial of the motion for rehearing.
I join the Court‘s denial of the State‘s motion for rehearing. I write this concurring opinion to comment on aspects presented in Presiding Judge Keller‘s dissent to the denial of the motion for rehearing.
The dissent states that the Court‘s opinion “ignores the fact that two attorneys represented applicant.” In an affidavit, trial counsel # 1 confesses error in failing to request the proper limiting instructions and states that this failure was not the result of trial strategy. While trial counsel # 2 did not provide such an affidavit, I believe that it is fair to presume that both counsel had the same trial strategy. It would be unreasonable to assume that one attorney would be aware of an important strategic decision in the case while the other attorney knew nothing about it. And if that were the case, I would further question the effectiveness of both counsel.
Presiding Judge Keller further states that trial counsel # 2 “consciously decided against asking for a limiting instruction when other extraneous act evidence was introduced because it would have called greater attention to the evidence.” She uses this evidence to bolster her conclusion that the failure to request limiting instructions was the result of trial strategy. The context in which trial counsel # 2 made this decision is important to note. Trial counsel # 2 did not ask for a limiting instruction when applicant‘s bigamy charges were mentioned by a witness. Prior to trial, both parties and the trial judge agreed that the bigamy charges were irrelevant at guilt/innocence. The State agreed to wait until the punishment phase to produce this evidence. To minimize the attention brought to the bigamy charge, trial counsel # 2 failed to request a limiting instruction as a matter of trial strategy.
The strategy concerning the extraneous acts admissible under
With these comments, I vote to deny the State‘s motion for rehearing in this cause.
KELLER, Presiding Judge, filed an opinion dissenting from denial of the motion for rehearing in which KEASLER, and HERVEY, JJ., joined.
The Court refuses to grant the State‘s motion for rehearing, which rightly questions not only the legal but the factual assertions in the Court‘s opinion on original submission. In a footnote, the Court contended that a limiting instruction was required for certain extraneous offenses because the extraneous act evidence was admitted for specific purposes articulated by the State.1 But this statement was false because no limiting instruction was requested or given at the time the evidence was admitted. As a result, the evidence was admitted for all purposes. The Court now corrects its opinion by replacing the “was admitted” with “should have been admitted.”2 The factual error points to a more serious legal error discussed in my dissent on original submission but still overlooked by the Court. The question is whether counsel was ineffective for failing to request a
In addition, the Court‘s opinion-both on original submission and as corrected-ignores the fact that two attorneys represented applicant. Only one-Elisa Vasquez-executed an affidavit confessing error in failing to request the instructions. That affidavit did not implicate the entire defense team, only Vasquez. Without evidence about the motives of the other attorney, applicant has failed in his burden to establish that the lack of a request was not trial strategy.
Moreover, the record indicates that applicant‘s other attorney-Brian Abbington-consciously decided against asking for a limiting instruction when other extraneous act evidence was introduced because it would have called greater attention to
Finally, even assuming that a limiting instruction and a burden of proof instruction should have been given, the Court errs in finding that a reasonable probability existed that the outcome would have been different. The Court finds that “Without a strong pattern of abuse, it would have been increasingly difficult for the jury to find applicant intentionally caused L.W.‘s death. Instead the jury probably would have found appellant not guilty or, at the most, guilty of unintentionally causing L.W.‘s death, i.e. involuntary manslaughter or criminally negligent homicide.”6 As the Court‘s opinion explains, the State produced evidence demonstrating that the child died as a result of being struck in the abdomen so hard that the blow tore her heart in four places. The jury‘s notes to the trial court focused collectively on the timing of the child‘s injuries, which suggests that the jury‘s determination was not a product of its concern about extraneous act evidence. Even if consideration of the evidence had been limited to the purposes described by the State, the jury would have been entitled to consider the acts to show stаte of mind, intent, relationship, motive, and to rebut defensive issues. While it is barely conceivable that unlimited, as opposed to limited, consideration of the extraneous acts could have influenced the jury to convict applicant on the basis of his character, the physical evidence that the State produced and the jury‘s notes during its deliberations suggest that it is far more likely that the jury convicted applicant on the basis of evidence of the transaction on trial rather than evidence of extraneous offenses. The Court‘s conclusions to the contrary are simply speculations that are not supported by the record. I cannot conclude that applicant has demonstrated a reasonable probability that the jury‘s verdict would have been different had counsel requested limiting and burden of proof instructions regarding the extraneous acts.
I would grant the State‘s motion for rehearing and deny applicant relief. Because the Court refrains from doing so, I must dissent.
HOLLAND, J.
JUDGE, COURT OF CRIMINAL APPEALS