COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-09-00297-CR

KENYON GRADY COX APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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MEMORANDUM OPINION1 ON

STATE’S MOTION FOR REHEARING

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After considering the State‘s motion for rehearing, we deny the motion, but 

we withdraw our opinion and judgment of March 31, 2011 and substitute the 

following.

A jury convicted Appellant Kenyon Grady Cox of two counts of aggravated 

sexual assault of a child and two counts of indecency with a child by contact and 

 

1See Tex. R. App. P. 47.4.
2

assessed his punishment at life imprisonment and a $10,000 fine on each count. 

The trial court sentenced him accordingly, ordering the sentences to be served 

consecutively. In eight points, Appellant contends that the trial court abused its 

discretion by stacking the sentences and that he received ineffective assistance 

of counsel at trial. We hold that defense counsel rendered ineffective assistance 

at trial by misstating the application of the stacking law to the venire panel and by 

not ensuring that such misstatement was corrected before the jury delivered its 

punishment verdict, but we also hold that the trial court did not reversibly err and 

that Appellant has not proved his remaining claims of ineffective assistance. We 

therefore affirm the trial court‘s judgment as to Appellant‘s convictions but 

reverse the trial court‘s judgment as to punishment and remand this case for a 

new trial on punishment only.

I. Trial Court Did Not Abuse Discretion by Stacking Sentences

In his first point, Appellant contends that the trial court abused its discretion 

by stacking the sentences. Section 3.03 of the penal code provides that the trial 

court has discretion to stack sentences in cases involving aggravated sexual 

assault of a child and indecency with a child.2The trial court‘s decision to stack 

the sentences in this case is therefore ―a normative, discretionary function that 

does not turn on discrete findings of fact‖3and is ―unassailable on appeal.‖4 We 

 

2See Tex. Penal Code Ann. § 3.03(b)(2)(A) (West 2011); see also id. §§ 

21.11, 22.021(a)(1), (2)(B).

3Barrow v. State, 207 S.W.3d 377, 380 (Tex. Crim. App. 2006).
3

consequently hold that the trial court did not abuse its discretion by stacking the 

four sentences and overrule Appellant‘s first point.

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 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 

 

4

Id. at 381; see also Beedy v. State, 250 S.W.3d 107, 110 (Tex. Crim. App. 

2008).

5Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 

(1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. 

State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001); Thompson v. State, 

9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 988 S.W.2d 770, 

770 (Tex. Crim. App. 1999).

6

Thompson, 9 S.W.3d at 813.

7See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.
4

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 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 

 

8Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at 63.

9Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 813–14.

10Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63).

11Id. (quoting Thompson, 9 S.W.3d at 813).

12Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).

13Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
5

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 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 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 

 

14Id. at 694, 104 S. Ct. at 2068.

15Id.

16Id. at 697, 104 S. Ct. at 2070.

17Tex. Penal Code Ann. § 3.04(c) (West 2011).

18Id. § 3.03(b)(2).
6

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.
7

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.
8

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 
9

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.)
10

[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.
11

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.

In Andrews v. State, the Texas Court of Criminal Appeals concluded that 

―there could be no legitimate trial strategy in failing to object to the prosecutor‘s 

misstatement‖ in the State‘s closing argument regarding the stacking law, 

especially when Andrews‘s defense counsel knew that the State had filed a 

motion to cumulate the sentences.

19 The court also noted that ―[h]ad defense 

counsel objected on the basis that the prosecutor‘s argument was a 

misstatement of the law, the trial court could have corrected the misstatement 

and told the jury not to consider whether the court could or would cumulate the 

sentences.‖20 The Texas Court of Criminal Appeals explained,

[W]e have said that the record on direct appeal is in almost all cases 

inadequate to show that counsel‘s conduct fell below an objectively 

reasonable standard of performance and that the better course is to 

pursue the claim in habeas proceedings. But, when no reasonable 

trial strategy could justify the trial counsel‘s conduct, counsel‘s 

 

19159 S.W.3d 98, 100, 103 (Tex. Crim. App. 2005).

20Id.; see also Tex. Penal Code Ann. § 3.03(b)(2)(A).
12

performance falls below an objective standard of reasonableness as 

a matter of law, regardless of whether the record adequately reflects 

the trial counsel‘s subjective reasons for acting as she did.21

The Texas Court of Criminal Appeals reminded us that Strickland not only 

requires that our review be ―highly deferential‖; it also requires that reviewing 

courts ―keep in mind that counsel‘s function, as elaborated in prevailing 

professional norms, is to make the adversarial testing process work.‖22 The 

Texas Court of Criminal Appeals concluded,

Defense counsel has a duty to correct misstatements of law that are 

detrimental to his client. This duty derives from counsel‘s function to 

make the adversarial testing process work . . . . There can be no 

reasonable trial strategy in failing to correct a misstatement of law 

that is detrimental to the client.23

On the second Strickland prong, the Texas Court of Criminal Appeals 

concluded that ―[b]ecause the jury received incorrect information about 

[Andrews‘s] punishment, the record supports the conclusion that there is a 

reasonable probability that the result would have been different.‖24

 

21Id. at 102 (citations omitted).

22Id.

23Id. (citations and internal quotation marks omitted).

24Id. at 103.
13

Here, the following discussion took place during voir dire:

VENIREPERSON: I just had a question. I don‘t know if I 

missed what he was saying, but there‘s going to be three charges 

that we‘re going to judge innocent or guilt, and as far as the 

punishment phase, does that mean they‘re separate or do they run

concurrent if we do so find him guilty?

[DEFENSE COUNSEL]: And in this case they would run 

concurrent.

[PROSECUTOR]: They‘ll get a charge on that.

[DEFENSE COUNSEL]: And so you would also get a—a legal 

charge. Again, that‘s a legal question, with a legal answer, which 

you will get from the Judge, who will tell you, okay, now we have

found someone guilty—because again, there may be multiple things 

and you may say, Okay, we find him—we think he‘s guilty of this one 

and not this one or we think you‘re guilty of this—this middle one. 

So once that decision is made—

VENIREPERSON: Okay.

[DEFENSE COUNSEL]:—then you move on to your second 

decision.

VENIREPERSON: Okay.

[DEFENSE COUNSEL]: And I promise you you will get lots 

and lots of pages about the law and how that all works.

VENIREPERSON: Okay.

[DEFENSE COUNSEL]: So—and I sound murky, but I don‘t 

want to go too much into that.

Because the legislature has given the trial court discretion to stack (or not 

stack) sentences in cases involving aggravated sexual assault of a child and 

indecency with a child,25 defense counsel‘s statement that the sentences would 

 

25See Tex. Penal Code Ann. § 3.03(b)(2)(A).
14

run concurrently was a misstatement of law. But the prosecutor‘s statement that 

the jury would ―get a charge on that‖ was likewise a misstatement of law, and 

defense counsel magnified both misstatements of law by agreeing with the 

prosecutor that the jury would be charged on ―how that all works.‖ Had defense 

counsel instead objected to the prosecutor‘s incorrect statement of law during 

voir dire, ―the trial court could have corrected the misstatement and told the jury 

not to consider whether the court could or would cumulate the sentences.‖26

The State filed its motion to stack on the same day that the jury received 

the punishment charge. After the jury began deliberations, the foreman sent a 

note to the trial judge. The note stated, ―The jury is interested in knowing how 

the law applies to . . . whether any of the sentences in this case run concurrently 

or consecutively.‖ The following occurred after the trial court received the note:

(Jury deliberating.)

(Open court, Defendant present.)

COURT REPORTER: The note reads: In answer to your jury 

note number three, the Court cannot answer your question. Please 

refer to charge of the Court and continue your deliberations.

[PROSECUTOR]: Okay.

[DEFENSE COUNSEL]: Okay.

 

26Andrews, 159 S.W.3d at 103; see also Tex. Penal Code Ann. 

§ 3.03(b)(2)(A).
15

Here, too, defense counsel could have cured his mistakes by requesting that the 

trial court clarify for the jury that it should not ―consider whether the court could or 

would cumulate the sentences.‖27 Instead, he said, ―Okay.‖

Following Andrews, we hold that defense counsel rendered ineffective 

assistance at trial by misstating the law to the venire panel, agreeing with the 

prosecutor‘s misstatement of the law instead of challenging it, and not ensuring 

that the jury had the correct information on stacking before it delivered the 

punishment verdict. We therefore sustain Appellant‘s second and third points.

III. Conclusion

Because we have sustained Appellant‘s second and third points but have 

overruled his remaining six points, we affirm the trial court‘s judgment as to 

Appellant‘s convictions, reverse the judgment as to his punishment, and remand 

this case to the trial court for a new trial on punishment.

LEE ANN DAUPHINOT

JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: November 17, 2011

 

27Andrews, 159 S.W.3d at 103; see also Tex. Penal Code Ann. 

§ 3.03(b)(2)(A).