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 Article 38.36 is a different question, however. Those extraneous acts discussed in the Court’s original opinion in this cause were admissible and were present throughout the guilt/innocence phase of trial. Since the jury was going to hear about these extraneous acts, the only reasonable strategy could be to limit the jury’s consideration of those acts to the purposes articulated by the State in pre-trial conference. Indeed, trial counsel #1 states in her affidavit that there was no reason, nor could she think of a reason, not to request limiting instructions on those extraneous acts. Nor can I. The admissible extraneous acts permeated the entire trial. Foregoing the limiting instruction would not minimize the jury’s attention to the acts. Rather, requesting such a limiting instruction could only serve to diminish the impact and consideration of the acts. Therefore, I stand by the Court’s opinion that there is no evidence in the record to suggest that the failure to request limiting instructions was the result of trial strategy.

With these comments, I vote to deny the State’s motion for rehearing in this cause.

HOLLAND, J.

Publish

Date Delivered: May 23, 2001