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 reasonable 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 Texas Rule of Evidence 404(b), requiring that extraneous offenses be relevant to a purpose other than character conformity. But, at least on its face, a statutory provision at variance with Rule 404(b) would appear to control the outcome of this case:

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.

Texas Code of Criminal Procedure, Article 38.36(a). This statute would appear to indicate that evidence of the previous relationship between the accused and the deceased, including extraneous bad acts inflicted by one upon the other, is relevant for all purposes, including character conformity. If such evidence is indeed relevant for all purposes, then a limiting instruction would not be appropriate.

Recently, in Smith v. State, the Court decided that Article 38.36 did not in any manner displace the applicability of Rule 404(b) to evidence of extraneous bad acts.¹ Even when the acts constitute evidence of the relationship between the accused and the deceased, Smith requires that the proponent show a non-conformity purpose.² But at least three judges on original submission, and four on rehearing, disagreed, believing that Article 38.36 made “relationship” evidence categorically admissible.³

The trial in the present case occurred before this Court’s decision in Smith. Before Smith, no case had held that evidence admissible under Article 38.36 could be rendered inadmissible by this Court’s rules regarding extraneous offenses. Although there were cases holding that Article 38.36 (and its predecessors) did not dispense with the application of the rules of evidence, those cases involved objections to the form in which the evidence was proffered (e.g. hearsay or opinion testimony) rather than its content,⁴ or were distinguishable based on the proffered evidence’s lack of relevance to the categories outlined in Article 38.36.⁵ In fact, before Smith, the predecessor statutes to Article 38.36 were held to render admissible such evidence.⁶ We have held that “counsel's performance will be measured against the state of the law in effect during the time of trial and we will not find counsel ineffective where the claimed error is based upon unsettled law.”⁷ Although the absence of on-point caselaw may not excuse counsel in the face of clear statutory language,⁸ we are not confronted with a situation in which clear statutory law placed counsel on notice of his legal obligations. Rather, at the time of trial, the language of a statute indicated that the evidence was admissible for all purposes, and no court had held otherwise. At best, then, the law was unsettled on whether applicant was entitled to a limiting instruction, and counsel should not be held ineffective for failing to request one.

There is also some indication in the legislative history that Article 38.36 was intended to render some evidence admissible that may not otherwise be admissible under the rules of evidence. Two speakers in committee objected to the deletion of former Texas Penal Code §19.06 by the Senate in its proposed bill; both speakers recommended that the provision be recodified in Chapter 38 of the Texas Code of Criminal Procedure.⁹ Both speakers believed the provision preserved the ability of a defendant to introduce evidence of previous violent conduct by the victim against the defendant.¹⁰ A House amendment adding the contents of former §19.06 to the Code of Criminal Procedure as Article 38.36 was adopted by the conference committee for that legislation.¹¹ This legislative history is more evidence that, at the time of applicant’s trial, an attorney could reasonably suppose that the extraneous offense evidence was rendered admissible for all purposes by Article 38.36.

Moreover, even absent Article 38.36, the record supports a finding that failing to request a limiting instruction was a legitimate trial strategy by defense counsel. The record showed that the victim had suffered old injuries indicative of prior abuse, and there was evidence that, when a child protective service investigator went to the victim’s home on a previous occasion, the victim appeared unafraid of applicant. Those two items of evidence at least give rise to an inference that the child’s mother had perpetrated prior incidents of abuse upon the victim. If the jury were permitted to draw character conformity inferences from the evidence, the prior injuries could be used to show that Tina Varelas acted in conformity with her violent character and killed the victim. And in fact, defense counsel claimed that one of the defensive theories was that Tina Varelas, not applicant, was the killer. In its findings of fact the trial court recognized this theory, finding that a limiting instruction would have prevented the jury from considering extraneous matters as possible evidence that someone other than applicant committed the crime, and so trial counsel was not deficient in failing to request such an instruction. Although defense counsel claimed that there was no trial strategy in failing to request a limiting instruction, the trial court’s findings show that it disbelieved that claim and the trial court’s findings in that regard are rationally supported by the evidence.

I respectfully dissent.

DATE DELIVERED: January 31, 2001
PUBLISH

¹ Smith v. State, 5 S.W.3d 673, 679 (Tex. Crim. App. 1999).
² Id.
³ Smith, 5 S.W.3d at 692 (Keller, J. concurring and dissenting, joined by McCormick, P.J. and Keasler, J.) and 692-693 (McCormick, P.J dissenting on rehearing, joined by Mansfield, Keller, and Keasler, JJ.)
⁴ Id. at 683-690 (Keller, J. concurring and dissenting).
⁵ Id. at 690-691.
⁶ Id. at 681-682, 685-689.
⁷ Ex parte Welch, 981 S.W.2d 183, 184 (Tex.Crim.App. 1998).
⁸ Id. at 185.
⁹ Richard Anderson (representing TCDLA), SB 1067, Committee on the Whole Senate, April 20, 1993, Transcript, p. 6 (Tape 2, Side 1); Deborah Tucker (representing Texas Council on Family Violence), SB 1067, Senate Criminal Justice Committee, April 14, 1993, Tape 3, Side 1.
¹⁰ Id. Mr. Anderson stated:

One of the other aspects with regard to homicide is you’re removing 19.06 which is part of the evidentiary part of the Homicide Code. You’re deleting that completely. I’m gonna submit to you that, and this was, this was one of the things that was amended in the last legislative session to include language that, that we, that we knew would allow evidence concerning, ah, the battered spouse syndrome and that type of evidence in. I submit to you, if you’re going to remove 19.06 as an evidentiary issue, that you pla — because you’re trying to clean up the Code, is that you place it in 19.06 in Chapter 38 of the Code of Criminal Procedure which is another evidentiary chapter. Take 19.06 and just take it intact and move it over there so that the types of evidence that are admissible in homicide cases, at the guilt-innocence phase of trial will be preserved, will be relevant as a matter of statute, not as a matter of interpretation by the Court of Criminal Appeals so that that particular evidence will still be admissible in the homicide trial and you can — if you’re gonna strike 19.06 as part of this bill, the way that you can preserve that is to move it into Chapter 38 of the Code of Criminal Procedure where there are other evidentiary aspects such as hearsay testimony of a child, rape outcry vict — the outcry of rape victims, that type of evidentiary aspects if you — you can preserve it by moving it there.

Ms. Tucker stated:

And Senator Whitmire, we, we may have in fact made an error in the placement last time of of this whole area of the law. This is where we provide that in a trial for murder or manslaughter, if the defendant raises a self-defense claim, based on acts of violence committed by the deceased against them, that they would be given the right to present to the court all evidence surrounding family violence. So the proposal that we make is that having it in the Penal Code probably isn’t the appropriate place. The appropriate place probably is, um, in the Code of Criminal Procedure, Chapter 38, where all evidentiary matters are taken up. So I agree that it should be struck from 19.06 but I’d like to see it properly placed where we need it.
¹¹ Conference Committee Report, SB 1067, Section 7.03.