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 deficient ⁽²⁾ 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 assistance of counsel claim takes into account all of the above alleged acts and injuries.

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 not 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⁾

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 for 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 underlying argument was that all of these extraneous acts were admissible per se under article 38.36 of the Code of Criminal Procedure. ⁽¹⁴⁾ In fact, the State began both pre-trial hearings arguing that this evidence was admissible under article 38.36. In the pre-trial hearing on the motion in limine, defense counsel stated that this article "applies specifically by its terms to the previous relationship existing between the accused and the deceased, if at all." Defense counsel never argued that these acts were inadmissible because they only proved the defendant acted in conformity. Nor did defense counsel ever argue that these acts, if admitted, should be limited under evidence rule 404(b). Instead, defense counsel argued that the acts were inadmissible because 1) the State had not shown beyond a reasonable doubt that Varelas committed the extraneous acts and 2) the probative value of the extraneous acts was outweighed by the prejudice to Varelas. The State responded to these arguments and concluded the hearing by asking the trial court to allow the extraneous evidence into the guilt/innocence phase of the trial under article 38.36. The trial judge denied the defendant's motion to suppress, allowing the extraneous acts to be admitted, specifically because he found that a jury could find beyond a reasonable doubt that Varelas committed the acts. The trial judge did not find that the prejudicial effect outweighed the evidence's probative value. The trial judge's ruling at the pre-trial hearing in no way limited the admission of these extraneous acts. So it is evident from the pre-trial arguments from both sides, as well as from the trial court's ruling, that the extraneous acts were not offered or admitted for any limited purpose but were generally admitted under article 38.36.

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 article 38.36. Objectively, it would have been perfectly reasonable for a trial attorney to believe that the extraneous acts had been admitted for all purposes under article 38.36, and requesting a limiting instruction would not be proper. As Judge Keller has noted in her dissent in this opinion, as well as her concurring and dissenting opinion in Smith v. State, ⁽¹⁵⁾ at the time of this trial, evidence of extraneous acts was admissible under article 38.36. Smith has since changed that rule, holding that 404(b) bans conformity evidence despite article 38.36. ⁽¹⁶⁾ I believe that trumping legislative statutes with our judicially enacted rules is high-handed and disrespectful.

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.

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 the of the law, the integrity of the verdict is called 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 extraneous acts, the majority does not look at how the outcome would have been different if trial counsel had not made the errors they are claiming. So under the majority's theory, if trial counsel had not made these errors, the jury would have received a charge that included a limiting and reasonable doubt 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 acts 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 404(b). But I cannot find any 404(b) exception that applies to the other bruises and injuries not directly linked to Varelas. Nevertheless, even if these extraneous acts were limited, they still would be admissible. The jury could consider these acts for limited purposes along with the evidence that linked Varelas to L.W.'s death.

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 save 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. Considering the evidence before the jury, even if the judge had given a limiting instruction, Varelas has not shown with reasonable probability that the result would be different.

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.

KEASLER, J.

DATE DELIVERED: January 31, 2001

PUBLISH

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.

Tex. Code Crim. Pro. art 38.36(a)

1. 466 U.S. 668 (1984).

2. Id. at 687

3. Id. at 692.

4. Ante at 4.

5. Strickland v. Washington, 466 U.S. at 687-88.

6. Id. at 688.

7. Id. at 695.

8. Id. at 689.

9. Ante at 8.

10. See generally Strickland v. Washington, 466 U.S. at 688, 690.

11. See id. at 687-88.

12. Ante at 6 n. 3.

13. Ante at 6.

14. See Appendix.

15. 5 S.W.3d 673 (Tex. Crim. App. 1999).

16. Id. at 679.

17. Cannon v. State, 668 S.W.2d 401, 401 (Tex. Crim. App. 1994).

18. Harrell v. State, 884 S.W.2d 154, 157 (Tex. Crim. App. 1994).

19. See Young v. State, 991 S.W.2d 835, 839 n.6 (Tex. Crim. App. 1999).

20. Strickland v. Washington, 466 U.S. at 688, 695.

21. See id. at 693.

22. Id. at 695.

23. Id. at 694.

24. Id. at 698.

25. 871 S.W.2d 726 (Tex. Crim. App. 1994) (Abdnor III).

26. Ante at 9-10.

27. Abdnor v. State, 871 S.W.2d at 731.

28. Id. at 733.

29. Id. at 732.

30. Strickland v. United States, 466 U.S. at 695.