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 Rule 404(b) limiting instruction at the time the evidence was admitted. We held in Smith³ that Rule 404(b) applied to evidence admitted under Article 38.36, but as I explained in my dissent, the law was unsettled on that issue before Smith was decided, and appellant’s attorneys could not be held ineffective for their conduct because appellant’s trial occurred before Smith was decided.

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 the evidence.⁴ Thus, applicant not only failed to carry his burden as to the reason for the lack of a request for a limiting instruction, the record shows that Abbington was responsible for making decisions about whether to forgo limiting instructions and had done so, as a matter of trial strategy, on another occasion during the trial.⁵ The Court’s statement that there is no evidence in the record that counsel’s failure to request a limiting instruction was the result of trial strategy is thus factually incorrect.

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 state 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.

KELLER, P.J.

DELIVERED: May 23, 2001
PUBLISH

¹ Varelas v. State, slip op. at 6 n. 3 (Tex. Crim. App., January 31, 2001).

² Varelas v. State, slip op. at 6 n. 4 (Tex. Crim. App., , 2001).

³ Smith v. State, 5 S.W.3d 673 (Tex. Crim. App. 1999).

⁴ MR. ABBINGTON: Could we approach the bench?

THE COURT: Yes.

MR. ABBINGTON: I would object to the thing about the bigamy. I guess we

have opened the door, and I have to live with it. We just talked about the fact

that we weren’t going to do it. I think that in all fairness that Ms. Criss tried to

limit the question, but it was non-responsive. And I haven’t figured out how to

handle that. I am open to suggestion.

MS. BAGGETT: Instruction?

MS. CRISS: But if you were to ask for an instruction, it would emphasize it.

MR. ABBINGTON: That’s why I didn’t ask for it down there.

⁵ See Kimmelman v. Morrison, 477 U.S. 365, 384 (1986); Strickland, 466 U.S. at 688- 89; Stafford v. State, 813, S.W.2d 503, 509 (Tex. Crim. App. 1991).

⁶ Varelas, slip. op. at 13 ( , 2001).