D. Ineffective Assistance by Not Ensuring that Jury Received Correct Law on Stacking Before Delivering Punishment Verdict In his second and third points, Appellant contends that his trial counsel rendered ineffective assistance of counsel by failing to understand the law on stacking and misstating the law on stacking to the venire panel.  Within his discussion, he also contends that his trial counsel rendered ineffective assistance of counsel by not assuring that the jury had the correct law when deliberating.  We agree. v. << (2011)

Court of Appeals of Texas, Waco.

II. Ineffective Assistance of Counsel at Trial In his remaining points, Appellant contends that he received ineffective assistance of counsel at trial. A. Standard of Review To establish ineffective assistance of counsel, an 5 appellant must show by a preponderance of the evidence that his counsel's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different.5 In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the particular circumstances of each case.6  The issue is whether counsel's assistance was reasonable under all the circumstances and prevailing professional norms at the time of the alleged error.7  Review of counsel's representation is highly deferential, and the reviewing court indulges a strong presumption that counsel's conduct fell within a wide range of reasonable representation.8  A reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim.9  “In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions.” 10  To overcome the presumption of reasonable professional assistance, “any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” 11  It is not appropriate for an appellate court to simply infer ineffective assistance based upon unclear portions of the record.12  The second prong of Strickland requires a showing that counsel's errors were so serious that they deprived the 13 14 15 16 defendant of a fair trial, that is, a trial with a reliable result.13  In other words, appellant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.14  A reasonable probability is a probability sufficient to undermine confidence in the outcome.15  The ultimate focus of our inquiry must be on the fundamental fairness of the proceeding in which the result is being challenged.16 B. No Ineffective Assistance by Failing to File Motion to Sever In his fourth and fifth points, Appellant contends that his trial counsel rendered ineffective assistance by not filing a motion to sever.  As Appellant admits, section 3.04(c) of the penal code provides, The right to severance under this section does not apply to a prosecution for offenses described by Section 3.03(b) unless the court determines that the 17 defendant or the state would be unfairly prejudiced by a joinder of offenses, in which event the judge may order the offenses to be tried separately or may order other relief as justice requires.17 Section 3.03(b)(2) applies to certain sexual offenses against 18 complainants younger than seventeen years old, such as the offenses in this case.18 Appellant does not explain how trial counsel's filing of a motion to sever could have possibly changed the outcome of his trial and gives no evidence of unfair prejudice based on the joinder of the four offenses.  Accordingly, he has failed to prove ineffective assistance of counsel in this regard.  We therefore overrule his fourth and fifth points. C. No Ineffective Assistance Regarding Extraneous Offenses In his sixth, seventh, and eighth points, Appellant complains that his trial counsel rendered ineffective assistance by not objecting to the admission of evidence about extraneous offenses, not making a running objection thereto, and not timely requesting a limiting instruction.  In her opening statement, defense counsel stated, [F.S.] is going to talk about her mother․  And that there were not just one, but on multiple occasions, had there been some type of questioning of these children.  And then on multiple times there was not any allegations substantiated.  But if you tell a child something enough and you tell a child this is what you want to hear enough, perhaps you might get the answer you want․  And is this a case of, well, if we ask you enough times, perhaps we're going to get the right answer.  The following voir dire examination of Appellant by defense counsel occurred after opening statements but before the State called its first witness: Q. Mr. Cox, you are Kenyon Grady Cox, correct?  A. Yes. Q. And you are the person who is today accused in Cause No. 1168562 of various counts of aggravated sexual assault, indecency, fondling and indecent exposure, correct?  A. Yes. Q. And for much time now you have indicated your innocence and that you wish to pursue a trial with regard to these allegations, correct?  A. Yes. Q. And you have indicated to me you would never accept a plea because you felt you did not commit this offense, correct?  A. Yes. Q. Okay. And part of preparation for trial you and I have discussed on multiple occasions that previous to the June 7th referral to CPS, with regard to the children and the neglectful supervision, there had been four other referrals between yourself and Ms. [F.S.] with regard to your treatment of the children, correct?  A. Yes. Q. And I have indicated to you that in this trial the only pertinent issue would be that June 7th of '07 referral.  You remember we discussed that?  A. That— Q. Because that's the one that brought everything out was the June 2007?  A. When they took the kids?  Q. Yes. The one we talked about the one?  A. Yeah. Q. — that you heard [the prosecutor] talk about on her— A. Yeah. Q. —on her opening statement?  A. Yeah. Q. But you feel that it would be in your best interest if these other four referrals;  June 7th of '07—I'm sorry.  February 7th of '07, February 13th of '07, February 3rd of '06, and August 9th of '06, if the jury also heard about those referrals— A. Yeah. Q. — and the outcome of those referrals?  A. Yes. Q. And I have discussed with you that if we go ahead—anything we discuss with any of the witnesses and if we open the door to these other referrals, then that would also give [the prosecutors] the opportunity to question these same witnesses regarding these other referrals?  A. Yes. Q. And you feel now it's your trial strategy and it's your trial, despite my recommendations, that you want to go into these other CPS referrals?  A. Yes. Q. And you feel it would be in your interest, it's your trial, that you want the jury to hear about all these other referrals?  A. Yes. Q. And that is what you're asking me to do right now at this stage, when we begin talking to witnesses and they come on the stand that you ask that I also refer to these other CPS investigations?  A. Yeah. [PROSECUTOR]:  Your Honor, just briefly for the record, I have not discussed this with Defense counsel, these children were interviewed on previous instances, mostly with reference to physical abuse, but were also asked about sexual abuse.  It is the State's position that if Defense counsel goes into that, that it is then the State's right to show why these children were reluctant to come forward.  And that would include numerous acts of physical abuse that were either committed upon these children or that were committed in their presence by this Defendant against them and their mother, as well as the fact that this Defendant beat their puppy to death with a bat in front of them.  And just for purposes of the record, it is our intention and I think, frankly, I think opening statement probably opened the door to it, that we intend to go into those things in light of Defense's strategy of handling the case in this manner. [DEFENSE COUNSEL]:  And, Your Honor, I have discussed that with my client and he feels, as we just discussed, he and I have discussed that and we discussed that if—it would be your decision on how much, if anything, of these extraneous acts the prosecution is allowed to go into—or these alleged extraneous acts.  THE COURT:  Well, I don't think I'm going to be able to limit it as far as if the door is open and y'all start get[ting] into extraneous acts, it's all going to come in.  It's as simple as that.  I mean, I can't limit a portion of this.  And I think that if you start trying to get into with the children about other incidents then, of course, the State has [a] right to expand on why they had these other incidents, which could include the physical abuse, as well as—even as far as the incident with the puppy.  I mean, that's—those are bad acts and it's going to come in.  [DEFENSE COUNSEL]:  And do you understand—Mr.  Cox, do you understand what the Judge's ruling is in that regard?  [A.] That's fine.  [Q.] And it's still your desire that we discuss those?  [A.] Yeah. THE COURT:  All right.  [PROSECUTOR]:  And, Your Honor, since the door was opened in opening statements, it is my intent to go into those things on direct examination with the child, who will be the State's first witness.  [DEFENSE COUNSEL]:  And, Your Honor, the only reason I did that was because we didn't have an opportunity to— THE COURT:  Right.  [DEFENSE COUNSEL]:  —discuss with you outside of the presence of the jury, as I requested prior to the openings— THE COURT:  All right.  [DEFENSE COUNSEL]:  —with regards to all these instances.  THE COURT:  Okay. Real good.  (A brief pause in proceedings.)  [PROSECUTOR]:  Are we on the record?  Okay. Your Honor, at the end of our previous discussion with Defense counsel, she made mention of the fact that we did not take these issues up prior to her having made her opening statement.  However, it's my understanding that regardless of her having made her opening statement, even if she were able to rescind those statements, it is still their intent to go into the prior denials of abuse by the children, thus opening the door to allow us to go into the prior acts of violence witnessed by the children by this Defendant. [DEFENSE COUNSEL]:  And—and Mr. Cox and I have been discussing this for several days now, Judge.  So I believe it was Mr. Cox's position all along that yes, we do go into these prior CPS referrals.  THE COURT:  Okay. All right.  Then the door will be open.  All right․  It is clear from Appellant's testimony outside the jury's presence that he knowingly insisted against the advice of counsel on the strategy of delving into multiple CPS complaints occurring before the one involving the outcry, the admission of which opened the door to a multitude of extraneous offenses, including conduct amounting to domestic violence, child abuse, and aggravated assault with a deadly weapon, as well as the brutal killing of the family dog.  Further, even though counsel did not timely request a limiting instruction, a limiting instruction appears in the jury charge.  Additionally, Appellant has not shown that but for the admission of this evidence, there is a reasonable probability that the outcome of his trial would be different.  Consequently, we cannot say that Appellant has proven ineffective assistance of counsel on these grounds.  We therefore overrule his sixth, seventh, and eighth points. D. Ineffective Assistance by Not Ensuring that Jury Received Correct Law on Stacking Before Delivering Punishment Verdict In his second and third points, Appellant contends that his trial counsel rendered ineffective assistance of counsel by failing to understand the law on stacking and misstating the law on stacking to the venire panel.  Within his discussion, he also contends that his trial counsel rendered ineffective assistance of counsel by not assuring that the jury had the correct law when deliberating.  We agree.

NO. 02–09–00297–CR

Decided: November 18, 2011