COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00189-CR

Donald David Hetherington

v.

The State of Texas

§

§

§

§

§

From the 297th District Court

of Tarrant County (1140609D)

January 17, 2013

Opinion by Justice Gabriel

(nfp)

JUDGMENT

This court has considered the record on appeal in this case and holds that 

there was no error in the trial court’s judgment. It is ordered that the judgment of 

the trial court is affirmed.

SECOND DISTRICT COURT OF APPEALS 

By_________________________________

 Justice Lee Gabriel
2

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00189-CR

DONALD DAVID HETHERINGTON APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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Introduction

Appellant Donald David Hetherington appeals his conviction for sexual 

assault of a child, arguing in three points that his lawyer was ineffective and that 

the trial court abused its discretion by admitting extraneous-offense evidence and 

by issuing a limiting instruction of insufficient scope. We affirm.

 

1See Tex. R. App. P. 47.4.
3

Background Facts and Procedural History

As she walked past the living room, the complainant’s mother (Mom) saw 

Appellant’s face buried in her sixteen-year-old son’s lap. Appellant held very still

as Mom gestured for her son to pull up his pants and follow her to the bedroom,

where she ushered him into a closet, told him to stay put, and called the police. 

She then went back and confronted Appellant. He apologized as she screamed 

at him and escorted him from the house at gunpoint. Appellant was later 

arrested and tried for sexual assault of a child.

At trial, a witness for the State testified that, approximately twenty-two 

years before, Appellant had committed similar misconduct against him when the 

witness was twelve years old.

The jury found Appellant guilty and assessed his punishment at ten years’

confinement. The trial court sentenced Appellant accordingly.

Extraneous-Offense Evidence

In his first point, Appellant claims that the trial court erred by admitting the 

prior misconduct evidence during guilt-innocence and that the erroneous 

admission caused him harm. Appellant bases his claim on rules of evidence 

404(b) and 403. See Tex. R. Evid. 403, 404(b).

The standard of review is abuse of discretion, which means that we must

affirm the trial court’s ruling if it is within the zone of reasonable disagreement. 

De La Paz v. State, 279 S.W.3d 336, 343–44 (Tex. Crim. App. 2009); 
4

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on 

reh’g).

The State contends that (1) evidence that Appellant had once before

molested a child was admissible under rule 404(b) because Appellant opened 

the door and (2) the trial court properly balanced the probative value of the 

evidence against its potential for unfair prejudice under rule 403. The State 

claims that Appellant pushed against the door first during his portion of voir dire, 

when his lawyer discussed witness credibility with the venire. One panel 

member (“A”) had suggested that a witness might color his or her testimony one 

way or another depending on how the witness perceived the “payoff” to that 

testimony. He offered the example of a police-brutality case in which he 

surmised that he would discount testimony from the officer’s partner if he thought 

the witness was reluctant to impugn his partner. Appellant’s counsel followed A’s 

input with the following:

[DEFENSE COUNSEL]: Thank you. And I think a lot of what 

Mr. [A] was talking about was motive to, maybe, tell an untruth.

Mr. [B], have you ever seen those billboards going down the 

road that say[ ]: Noteboom, we sue sex offenders?

VENIREPERSON [B]: Yes.

[DEFENSE COUNSEL]: Okay. Now, what kind of case would 

that be if you were suing somebody or you were accused of in a civil 

case? What kind of burden going back?

VENIREPERSON [B]: The burden would be––

[DEFENSE COUNSEL]: Preponderance of the evidence.
5

VENIREPERSON [B]: Exactly.

[DEFENSE COUNSEL]: That it probably happened. Okay? 

But if you’re able to show that it probably happened, in a civil case, 

you get that payoff that Mr. [A] was talking about. Wouldn’t you 

agree?

VENIREPERSON [A]: Yes.

[DEFENSE COUNSEL]: Okay. So could that be a reason, 

when judging someone’s credibility, that you might want to be a little 

concerned about what they’re telling you like Mr. [A] was talking 

about?

Appellant’s counsel revisited this issue with Mom on cross-examination 

when he asked her whether she had contacted a law firm about filing suit:

Q (By [DEFENSE COUNSEL]) [Mom], after––after this alleged 

incident, did you ever contact a law firm regarding filing a civil suit 

regarding this incident?

A Did I? No, sir, I did not.

Q Okay. Did anyone in your family ever contact a law firm 

regarding filing a civil suit?

A No.

The prosecutor asked for a bench conference to flesh out Appellant’s 

purpose in pursuing this line of questioning:

[PROSECUTOR]: Your Honor, I just wanted to make it clear 

on the record. Is there some specific matter that they’re admitting? I 

want to see if I have an objection, and I don’t know what their theory 

is so I don’t know whether I have one.

[DEFENSE COUNSEL]: Well, obviously, Your Honor, if there 

is any other motivation to bring this case, then I think––you know, 

monetary issues or pecuniary interests, I think that’s definitely a 

theory that we should be able to explore.
6

[PROSECUTOR]: Is the Defense suggesting that it would be 

admissible under the theory of the motive here being––

[DEFENSE COUNSEL]: Bias or motive to testify.

[PROSECUTOR]: ––greed or desire for money? Is that––

[DEFENSE COUNSEL]: I mean, if you want to phrase it like 

that, that’s fine. I think I’ve––

[PROSECUTOR]: Am I being accurate though? That’s what 

I’m asking.

[DEFENSE COUNSEL]: That’s not an incorrect way to phrase 

it.

[PROSECUTOR]: Okay. I just wanted to make clear.

Appellant continued Mom’s cross-examination as follows:

Q (By [DEFENSE COUNSEL]) Okay. [Mom], you understand 

that you are under oath and that you––you swore an oath to the 

Court to tell the truth––

A That’s correct.

. . . . .

Q Okay. Are you familiar with the Noteboom Firm?

A Yes, I am.

Q Okay. And is it your testimony today that you, or anyone 

connected to you, has never contacted the Noteboom Firm 

regarding this particular incident?

A No. I disagree with that.

Q You disagree with what?

A That somebody connected to me did, but that was not the 

question the first time you asked me.
7

Q Okay. Did someone connected to you or your family contact 

the Noteboom Firm on your behalf?

A Yes.

Q Okay. Who was that?

A Thomas Stephens.

Q Okay. And who is Thomas Stephens? How is he related to 

you?

A He’s a lawyer out of Houston.

Q Okay. How did you––did you contact––did you reach out to 

Mr. Stephens?

A Yes, because he was a friend.

. . . . . 

Q Okay. Did you––did you contact him regarding the possibility 

of bringing a civil suit?

A No, I did not.

Q . . . . [D]o you know what . . . particular law Mr. Stephens 

practices?

A Real estate.

. . . . . 

Q Did you believe that you possibly needed legal representation 

in this matter?

A Yes.

Q Okay. Why would that be?

A Because I didn’t know what else to do so––I mean, this was a 

serious matter.
8

Q Okay. And did you and Mr. Stephens––did you––did you 

even discuss the possibility of filing a civil suit against [Appellant]?

A No.

Q You never discussed it?

A I mean, I didn’t discuss it with him, no.

Q Okay. Did he ever discuss it with you?

A No.

Q All right. How––how is that you know that he contacted the 

Noteboom Firm?

A Because he told me that there was lawyers here who dealt 

with this kind of situation and that Noteboom was one of a wellrenowned law office here in our town.

Q Okay. So did he––so how many conversations did you have 

with Mr. Stephens regarding this?

A I don’t know how many. It wasn’t many. I mean, I talked to 

him a couple of times.

Q And so I’m just going to assume the second time that you

guys talked he told you that he contacted the Noteboom Firm on 

your behalf?

A With them, yes.

Q Okay. And then what did y’all discuss?

A We really didn’t discuss anything, other than him––or, I’m 

sorry, that he could fly in and, you know, stand by my side and do 

the talking for me because I’m illiterate to what lawyers do and what 

y’all talk about and––

Appellant’s counsel then asked Mom questions about whether she had 

invited Appellant to spend the night at their home, knowing that he regularly 
9

carried large amounts of cash and wore lots of jewelry, and whether she had had 

trouble paying her bills and supporting her three children. He then asked her 

about another lawsuit, and when that question drew a relevancy objection, he

stated in front of the jury that he was entitled “to explore the fact that she may be 

a litigious witness.”

Given the record before us, we hold that it was within the zone of 

reasonable disagreement for the trial court to conclude that evidence about 

Appellant’s prior misconduct with another teenager had relevancy apart from 

character conformity because counsel’s questions exploring a civil lawsuit 

opened the door to evidence offered to rebut the implication that Mom had 

induced her son to fabricate charges against Appellant in order to create grounds 

for a lawsuit with a potential financial payoff. Accordingly, to the extent it is 

based on rule 404(b), we overrule Appellant’s first point. See Wheeler v. State, 

67 S.W.3d 879, 887–88 (Tex. Crim. App. 2002).

Having held that the extraneous-offense evidence was admissible under 

404(b), we must decide whether it was within the trial court’s discretion to 

conclude that its probative value was not substantially outweighed by the

potential for unfair prejudice. See Tex. R. Evid. 403. In conducting a rule 403 

analysis, we must balance the inherent probative force of the complained-of 

evidence together with the proponent’s need for it against any tendency it had to 

suggest a decision on an improper basis, such as emotion, any tendency it had

to confuse or distract the jury from the main issues, any possibility the jury might 
10

have given it undue weight, and whether its presentation consumed an inordinate 

amount of time or merely repeated evidence that was already admitted. See 

Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006).

Logically, evidence that Appellant had previously molested a teenage boy 

in the same way as he was tried for in this case is inherently probative. See 

Dennis v. State, 178 S.W.3d 172, 179–80 (Tex. App.––Houston [1st Dist.] 2005, 

pet. ref’d); 1 Steven Goode et al., Texas Practice Series: Guide to the Texas 

Rules of Evidence § 404.2 (3d ed. 2002) (“Evidence of character offered to prove 

conduct or a state of mind conforming to that character is logically relevant.”)

Further, the trial court reasonably could have concluded that the State’s need for 

the evidence was substantial. As discussed above, Appellant raised questions 

about the credibility of the State’s main witnesses, suggesting that Mom might 

have put her son up to bringing the charges in hopes of monetary gain. This

suggestion, combined with the lack of physical evidence to corroborate Mom and 

her son’s testimony, enhanced the State’s need for evidence that Appellant had 

done the same thing to another boy in the past. We hold that these factors weigh 

in favor of admissibility.

On the other hand, logically, evidence of another sexual assault against a

child in the past would tend to inflame a jury and suggest a decision based on 

emotion. See Newton v. State, 301 S.W.3d 315, 320 (Tex. App.––Waco 2009, 

pet. ref’d). This factor weighs against the trial court’s decision.
11

But we do not think the evidence had any tendency to confuse or distract 

the jurors from the main issues, that they might have given it undue weight, or 

that its presentation consumed an inordinate amount of time or merely repeated

evidence that was already admitted. See Gigliobianco, 210 S.W.3d at 641–42. 

As the State points out, the witness’s testimony about the prior offense occupies 

very few pages of a 340-page record on guilt-innocence. This factor weighs in 

favor of admissibility.

In conclusion, we hold that the trial court’s balancing under rule 403 was 

within the zone of reasonable disagreement and that the trial court did not, 

therefore, abuse its discretion by concluding that the danger of unfair prejudice 

did not substantially outweigh probative value. See Tex. R. Evid. 403; Roberts v. 

State, No. 02-10-00266-CR, 2011 WL 5607620, at *5 (Tex. App.––Fort Worth 

Nov. 17, 2011, pet. ref’d) (mem. op., not designated for publication); Dial v. State,

No. 05-09-00741-CR, 2010 WL 4705529, at *5 (Tex. App.––Dallas Nov. 22, 

2010, no pet.) (not designated for publication). Accordingly, we overrule the 

remainder of Appellant’s first point.

Limiting Instruction

In his second point, Appellant contends that the trial court violated rule of 

evidence 105(a) by giving a limiting instruction that did not restrict the 

extraneous-offense evidence to its proper scope.
12

The State responds that because the evidence was initially admitted 

without a limiting instruction, any error with regard to the scope of the limiting 

instruction was forfeited, and Appellant was not harmed.

Rule 105(a) of the rules of evidence provides in pertinent part that

[w]hen evidence which is admissible . . . for one purpose but not 

admissible . . . for another purpose is admitted, the court, upon 

request, shall restrict the evidence to its proper scope and instruct 

the jury accordingly; but, in the absence of such request the court’s 

action in admitting such evidence without limitation shall not be a 

ground for complaint on appeal.

Tex. R. Evid. 105(a).

Citing Williams v. State, 273 S.W.3d 200, 230 (Tex. Crim. App. 2008); 

Hammock v. State, 46 S.W.3d 889, 892–95 (Tex. Crim. App. 2001); and Martin v. 

State, 176 S.W.3d 887, 898–99 (Tex. App.––Fort Worth 2005, no pet.), the State 

argues that the trial court did not give a limiting instruction at the time the 

extraneous offense was admitted but waited until immediately after the witness 

testified. We do not read the cases cited by the State to require that a limiting 

instruction must be given before testimony if a defendant desires the testimony to 

be given limited consideration; rather the cases simply instruct that a defendant’s 

failure to request a limiting instruction at the time evidence is presented renders 

the evidence admissible for all purposes and relieves the trial judge of any 

obligation to include a limiting instruction in the jury charge. See Williams, 273 

S.W.3d at 230; Hammock, 46 S.W.3d at 892–95; Martin, 176 S.W.3d at 899.
13

Our review of the record shows that Appellant requested a limiting 

instruction before the witness testified about the extraneous offense and that the 

trial court gave one immediately on the heels of the complained-of testimony. 

Accordingly, we disagree with the State that the evidence was admitted without a 

limiting instruction.

The State concedes that the limiting instruction the trial court gave was 

incorrect. Then, citing Owen v. State, Nos. 13-10-00417-CR, 13-10-00418-CR, 

2011 WL 5515548 (Tex. App.––Corpus Christi Nov. 10, 2011, pet. ref’d) (mem. 

op., not designated for publication), and Moore v. State, 339 S.W.3d 365, 370–71 

(Tex. App.––Amarillo 2011, pet. granted) (op. after remand), aff’d as modified, 

371 S.W.3d 221 (Tex. Crim. App. 2012), the State contends that because

Appellant did not object to the oral limiting instruction or to the written one given 

in the jury charge (of which Appellant does not complain in his brief) the question 

becomes whether Appellant suffered egregious harm.

Because Appellant failed to preserve a complaint that the trial court gave 

an erroneous limiting instruction during trial, we need not consider either the 

propriety of that instruction or whatever harm it may have caused. Those issues 

are not before us. As for the instruction that the trial court gave in the jury 

charge, however, we agree with the State that the remaining issue is whether the 

jury charge caused Appellant egregious harm.

We also agree with the State that Appellant has failed to demonstrate that 

the trial court’s limiting instruction caused him egregious harm. The State points 
14

to an unpublished case from the Austin Court of Appeals that examined the same 

issue presented here. In Tobar v. State, the district court had admitted 

extraneous offense evidence to rebut a claim of recent fabrication, but instead of 

limiting the evidence to that purpose, it had instructed the jury to restrict the 

evidence to the purposes set out in rule 404(b), that is, motive, opportunity, 

intent, preparation, plan, knowledge, identity, or absence of mistake or accident. 

No. 03-05-00521-CR, 2006 WL 1649010, at *3 (Tex. App.––Austin June 16, 

2006, no pet.) (mem. op., not designated for publication); see Tex. R. Evid. 

404(b). Because the instruction the trial court gave in Tobar prohibited the jury’s 

consideration of the evidence for any reason other than those specifically 

identified, and because it did not identify rebutting a claim of recent fabrication as 

one of the reasons for consideration, the court of appeals held that the instruction 

given actually accrued to the appellant’s benefit. Tobar, 2006 WL 1649010, at 

*6. Consequently, that court held that the instruction could not have caused the 

appellant any harm, let alone egregious harm. Id.

Here, the trial court instructed the jury, immediately after the witness 

testified and in its charge on guilt-innocence, to consider the extraneous-offense 

testimony “only . . . in determining the motive, opportunity, intent, plan and 

knowledge of the defendant in relation to the offense on trial and . . . not . . . for 

any other purpose.” Because the instruction set out an exclusive list of the 

purposes for which the jury could consider the extraneous-offense testimony and 

because that list did not include considering the evidence to rebut a claim of 
15

fabrication, the jury was not allowed to consider the evidence for that purpose. 

Because the instruction prohibited the jury from using the evidence to rebut 

Appellant’s implication that the charges had been fabricated to form the basis of 

a civil lawsuit, the implication was not rebutted. Therefore, the instruction helped 

Appellant rather than harmed him. Accordingly, we overrule Appellant’s second 

point.

Trial Strategy

In his third point, Appellant faults his trial attorney for employing a strategy 

that permitted the State to offer and have admitted the extraneous-offense 

evidence of which Appellant complains in his first point. To establish ineffective 

assistance of counsel, the 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. Strickland 

v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Davis v. State, 

278 S.W.3d 346, 352 (Tex. Crim. App. 2009). In other words, for a claim of 

ineffective assistance of counsel to succeed, the record must demonstrate both 

deficient performance by counsel and prejudice suffered by the defendant. 

Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). An ineffectiveassistance claim must be “firmly founded in the record” and “the record must 

affirmatively demonstrate” the meritorious nature of the claim. Id. (quoting 

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)).
16

In evaluating the effectiveness of counsel under the deficient-performance 

prong, we look to the totality of the representation and the particular 

circumstances of each case. Thompson, 9 S.W.3d at 813. The issue is whether 

counsel’s assistance was reasonable under all the circumstances and prevailing 

professional norms at the time of the alleged error. See Strickland, 466 U.S. at 

688–89, 104 S. Ct. at 2065. 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. Salinas v. State, 

163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d 59, 63 

(Tex. Crim. App. 2001).

Trial counsel “should ordinarily be afforded an opportunity to explain his 

actions before being denounced as ineffective.” Menefield, 363 S.W.3d at 593 

(quoting Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)). If trial 

counsel is not given that opportunity, then the appellate court should not find 

deficient performance unless the challenged conduct was “so outrageous that no 

competent attorney would have engaged in it.” Id. (quoting Garcia v. State, 57 

S.W.3d 436, 440 (Tex. Crim. App. 2001)). If counsel’s reasons for his conduct 

do not appear in the record and there is at least the possibility that the conduct 

could have been grounded in legitimate trial strategy, we will defer to counsel’s 

decisions and deny relief on an ineffective-assistance claim on direct appeal. 

Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007); Ortiz v. State, 93 

S.W.3d 79, 88–89 (Tex. Crim. App. 2002), cert. denied, 538 U.S. 998 (2003).
17

We note that although Appellant filed a motion for new trial, in it he did not 

challenge the effectiveness of his trial counsel. We also note that there is no 

record that the motion for new trial was presented to the trial court or that the trial 

court conducted a hearing on it.

Moreover, Appellant does not dispute that his trial counsel engaged in a 

strategy and that his strategy was to cast doubt on Mom’s (and by extension, the 

complainant’s) credibility; he contends, however, that counsel’s strategy was 

outrageous and one that no reasonably professional attorney would have 

pursued. But a strategy is not outrageous simply because it fails. See Flores v. 

State, 18 S.W.3d 796, 800 (Tex. App.––Austin 2000, no pet.). Here, counsel 

could have calculated that the risk of his opening the door to a fairly remote

extraneous offense was slightly outweighed by the payoff of having the jury 

wonder whether Mom might have put her son up to bringing charges against 

Appellant who, particularly because he had a prior offense, was vulnerable to 

charges of sexual assault. In any event, we refuse to second guess counsel’s 

trial strategy simply because it failed to result in an acquittal for his client. See id. 

Accordingly, on the record presented here, we cannot say that Appellant

received ineffective assistance, and we overrule Appellant’s third point. See 

Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 813.
18

Conclusion

Having overruled all of Appellant’s points on appeal, we affirm the 

judgment of the trial court.

LEE GABRIEL

JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

DO NOT PUBLISH

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

DELIVERED: January 17, 2013