NO. 73,632

EX PARTE SANTIAGO MARGARITO RANGEL VARELAS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM GALVESTON COUNTY

O P I N I O N

This is a post-conviction application for a writ of habeas corpus filed pursuant to Article 11.071 of the Texas Code of Criminal Procedure. Applicant was convicted of capital murder for the death of his two-year-old step-daughter, L.W., and was sentenced to death. In his application for a writ of habeas corpus, applicant asserts that his trial counsel provided ineffective assistance under the Sixth Amendment by failing to request certain instructions in conjunction with extraneous acts admitted during the guilt/innocence phase of his trial. ⁽¹⁾ Specifically, applicant claims that trial counsel was ineffective for failing to request that the jury be instructed that they must find beyond a reasonable doubt that applicant committed the extraneous acts before considering them in their deliberations. Additionally, applicant contends that trial counsel should have requested limiting instructions as to the jury's use of the extraneous acts. We will grant the relief requested by applicant and remand the cause for a new trial.

To show that his trial counsel was ineffective, applicant must meet the two-pronged test articulated in Strickland v. Washington. 466 U.S. 668 (1984). First, applicant must demonstrate that counsel's performance was deficient. See id. at 687. 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. Second, applicant must show that counsel's performance prejudiced his defense at trial. See id. at 692. "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. 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. "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.

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 "inadequate to develop an ineffective assistance claim" because "the very ineffectiveness claimed may prevent the record from containing the information necessary to substantiate such a claim." Id. Therefore, when an applicant files an application for a writ of habeas corpus, the record can be supplemented by the trial court gathering facts. See id. This "provide[s] an opportunity for a dedicated hearing to consider the facts, circumstances, and rationale behind counsel's actions at that juncture of trial." Thompson v. State, 9 S.W.3d 808, 814-15 (Tex. Crim. App. 1999). Thus, the first issue presented is whether counsel's performance was deficient for failing to request limiting instructions and for failing to request that the jury be required to find applicant committed the extraneous acts beyond a reasonable doubt before using them in assessing guilt of the charged offense.

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 evidence 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 Tex. R. Evid. 404(b) (stating that "evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith."). A defendant is "entitled to be tried on the accusations made in the State's pleading and he should not be tried for some collateral crime or for being a criminal generally." Wilkerson v. State, 736 S.W.2d 656, 659 (Tex. Crim. App. 1987). In some circumstances, however, evidence of an extraneous act is admissible. See id. One such circumstance is delineated in Article 38.36 of the Texas Code of Criminal Procedure, which states:

(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.

Tex. Code Crim. Proc. art. 38.36 (a). The trial judge in this case found the extraneous acts in question admissible because a jury could find beyond a reasonable doubt that the applicant committed the acts.

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, 248 S.W. 389, 393 (Tex. Crim. App. 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 that the defendant committed the extraneous offense.").

On direct appeal of applicant's conviction, we considered the argument that his trial counsel was ineffective. See Varelas v. State, No. 72,178, 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⁾

Next, we must consider whether there is a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. See Strickland, 466 U.S. at 694. The function of the trial court's charge is to instruct the jury on how to apply the law to the facts. ⁽⁶⁾ See Abdnor v. State (Abdnor III), 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). It is designed to "lead and prevent confusion" during jury deliberations. Id. (quoting Williams v. State, 547 S.W.2d 18, 20 (Tex. Crim. App. 1977)). The charge must contain an accurate description of the law, and when it does not, the "integrity of the verdict is called into doubt." See id.

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. ⁽⁷⁾ 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."). 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 extraneous offense is unabated.").

In applicant's trial, evidence of the extraneous acts was central to the State's case-in-chief. The State argued from its opening statement to its closing remarks that applicant was responsible for the injuries to L.W., and consequently, was responsible for her death. To bolster this claim, the State presented evidence that applicant had shoved L.W. with his foot, had excessively dunked her in a pool, had "thumped" her on the head, and had made her sit still on a couch for two hours. By emphasizing that applicant had committed these acts and by characterizing them as "bad" acts, the State hoped to persuade the jury that applicant was physically abusing L.W. If the jury believed applicant was engaged in a pattern of abuse of L.W., then they would probably conclude that he 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 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 consider 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 those acts. More than likely, the jury assumed that because the extraneous acts were part of the evidence surrounding the relationship between applicant and L.W., they were proper factors in determining applicant's guilt. The extraneous acts could have been considered as evidence that applicant killed L.W. without the jury so much as even questioning the possibility that applicant may not have committed those acts. Additionally, without the limiting instructions, it is probable that the jury considered the extraneous acts as direct evidence of applicant's guilt, i.e., propensity evidence, rather than for the purposes in which they were offered, which was limited to the applicant's state of mind, intent, relationship, motive and to rebut defensive issues.

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. 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.

HOLLAND, J.

Publish

Date: January 31, 2001

1. Applicant also asserts that his trial counsel was ineffective for failing to challenge the admissibility of statements taken in violation of the Vienna Convention. Because we grant applicant a new trial based on the disposition of the jury instruction issue, it is unnecessary to address the merits of his Vienna Convention claim.

2. In its brief, the State does not dispute this argument.

3. A defendant has the burden of requesting a limiting instruction at the time the evidence is admitted as well as requesting a limiting instruction in the charge. See Garcia v. State, 887 S.W.2d 862, 878 (Tex. Crim. App. 1994).

4. As to this issue, the State argues that limiting instructions were not required because Article 38.36 of the Texas Code of Criminal Procedure allows the State to offer testimony as to all the relevant facts and circumstances surrounding the killing and previous relationship between the applicant and L.W. The State asserts that "no limiting instruction is required where such evidence can be considered on any relevant issue in the case." A limiting instruction would have been proper, however, because the extraneous act evidence should have been admitted for specific purposes as articulated by the State. See Porter v. State, 709 S.W.2d 213, 215 (Tex. Crim. App. 1986) (holding that if "evidence is offered for a specific purpose, the defendant is entitled upon proper request to a charge limiting the jury's consideration of that evidence to the purpose for which it was offered."); see also Smith v. State, 5 S.W.3d 673 (Tex. Crim. App. 1999) (holding that Rule 404(b) of the Texas Rules of Evidence applies even when evidence is admitted under Art. 38.36.).

5. In its "Findings of Fact and Conclusions of Law," the trial court found applicant's trial counsel failed to request either a burden of proof instruction or limiting instructions. Nevertheless, the trial court found that "[a]pplicant's trial counsel used sound trial strategy in not requesting jury instructions regarding all alleged extraneous offenses. Such limiting instructions would have prevented the jury from considering the extraneous matters as possible evidence someone other than the applicant committed the crime." In her dissent, Judge Keller apparently relies on these findings to reach her conclusion that "failing to request a limiting instruction was a legitimate trial strategy by defense counsel." Post, at __ (slip op. at 5) (Keller, J., dissenting). She believes that the trial court's findings "are rationally supported by the evidence." Id. at __ (slip op. at 6). Respectfully, the trial court's findings are illogical. A limiting instruction telling the jury not to consider the acts as evidence of applicant's guilt in no way diminishes the jury's ability to attribute those acts to another party. Rather, it strengthens applicant's argument that he did not commit the extraneous acts or the capital murder. Therefore, we conclude that these findings are unsupported by the record, especially in light of the fact that trial counsel's affidavit states facts to the contrary and there was no other evidence in the record that counsel's failure was sound trial strategy.

Judge Keller argues that before our decision in Smith v. State "no case had held that evidence admissible under Article 38.36 could be rendered inadmissible by this Court's rules regarding extraneous offenses." Id. at __ (slip op. at 3). But we are not saying that the extraneous act evidence offered in this case was inadmissible. Rather, we are stating that the extraneous act evidence, while admissible, required a limiting instruction. Judge Keller also states that Article 38.36 indicates that previous relationship evidence "is relevant for all purposes, including character conformity." Id. at __ (slip op. at 2). Contrary to Judge Keller's assertions, this Court definitively answered this issue in Smith when a majority of the Court held that Texas Rule of Evidence 404(b) and Article 38.36(a) could be applied congruously. See Smith, 5 S.W.3d at 679.

Moreover, Judge Keller believes that the law in this area was unsettled because "at the time of trial, the language of a statute indicated that the evidence was admissible for all purposes." Post, at __ (slip op. at 3) (Keller, J., dissenting). Once again, we disagree. Former Texas Penal Code section 19.06 was virtually identical to Article 38.36(a). In interpreting that statute we stated that "Section 19.06 gives the appellant [or the State] no more special comfort than the general rules of evidence." Werner v. State, 711 S.W.2d 639, 644 (Tex. Crim. App. 1986); see also Smith, 5 S.W.3d at 678-79 (discussing the relationship between Article 38.36 and Section 19.06 in greater detail.). Furthermore, at least one court of appeals had specifically held that "before a court [could] properly admit evidence of an extraneous offense under section 19.06, it must first find the evidence relevant to a material issue other than the defendant's character." Hernandez v. State, 914 S.W.2d 226, 232 (Tex. App.-Waco 1996, no pet.). Therefore, applicant's attorneys should have known that, if requested, a limiting instruction should have been given irrespective of whether the evidence was admissible under Article 38.36(a). In fact, both the State and applicant's trial attorneys noted at pre-trial hearings that a limiting instruction would be appropriate.

6. The charge in the instant case stated that the jury members were "bound to receive the law from the Court which is herein given to you and be governed thereby."

7.

Judge Womack argues that applicant's failure to request a separate charge on the reasonable doubt standard for the extraneous act evidence was "understandable" since counsel's "defensive theory was comprehended perfectly well by the reasonable-doubt charge [given on applicant's guilt]." Post, at __ (slip op. at 2) (Womack, J., dissenting). The flaw in his argument is this: the jury is bound by the charge of the court, and we cannot assume that the jury considered, much less comprehended, the proper weight to be given to the extraneous act evidence in the absence of a reasonable-doubt charge. Cf. Ovalle v. State, 13 S.W.2d 774, 787 (Tex. Crim. App. 2000) (stating that "if the jury read the charge and followed it, it is at least reasonably possible that the jury would have considered only the evidence . . . [that] the court told them to consider.") Speculation that the jury used "common sense" and properly weighed the extraneous act evidence at guilt/innocence is "contrary to the established law on the function of the charge." Id.