## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S

N O . A P - 7 6 , 9 9 4 E x p a r t e D A V I D L Y N N B R A T C H E R , A p p l i c a n t O N A P P L I C A T I O N F O R A W R I T O F H A B E A S C O R P U S C A U S E N O . 1 0 3 7 4 6 7 - A I N T H E 1 8 2 D I S T R I C T C O U R T n d H A R R I S C O U N T Y K E L L E R , P . J . , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t i n w h i c h M E Y E R S , P R IC E , K E A S L E R , a n d H E R V E Y , J J . , j o i n e d . C O C H R A N , J . , f i l e d a c o n c u r r i n g o p i n i o n i n w h i c h J O H N S O N , J . , j o i n e d . W O M A C K a n d J O H N S O N , J J . , c o n c u r r e d . A L C A L A , J . , d i d n o t p a r t i c i p a t e . Applicant was convicted of ag g rava ted sexual assault of a child and sentenc e d to s e v e n ty -five y ear s in prison. I n his habea s application, applicant contends that his tri al counsel, J ules L aird, rende red ineffe ctive assistance in a number of respe cts. We filed and set three of his alleg ations, in which he c laimed counse l was ineff ective be cause : (1) Counsel failed to deter mine befor e voir dire examination that applicant wanted the court to assess punis hment and allowed the prosecutor t o inform the jury panel of the enhanc ed range of punishment if the defe ndant had prior convictions even though the jury

did not assess punishment. (2) Previous counsel violated the attorney -client priv i l eg e by g iving a document rec eived from applicant to a p s y c h o lo g is t w it h o u t a p p lic ant’s knowledg e and consent, and trial counsel failed to f ile a motion in limine a

nd object to the document on the basis t h at t h e State obtained it as a result of previous counsel’s violation of the attorney -client privileg e and w as an ina dmissibl e prior c onsistent statement.BRATCHER — 2

(3) Counsel opened the door t o t es t i m o ny that applicant was convicted of sexually assaulting the complainant in Da llas and sentenc ed to 55 y ear s in prison. 1

I. F ACTUAL BACK GR OUND A. State’ s Evid ence Applicant opened a sports-trading -ca rd shop in Dallas sometime betwee n Aug ust and November 1 9 9 0

. S h o rt l y there afte r, the complainant (C.W.) and one of his older brothers (J.W .) beg an associating with applicant and his two stepsons and bega n working at t he shop. I n J anuar y 1991, applicant and sever al boy s—incl u d i n g C

. W., J .W., and one of applicant’ s stepsons (J.G.)—traveled to Houston to attend a trading -ca rd show. Two re t i re d m em b ers of the Har lem Globetrotters—Me adowlar k L emon and Curly Nea l—were prese nt a nd posed for a photo w ith the boy s. Whil e they

wer e in Houston, applica nt and the boy s stay ed at the house of Her bert Weaver , a fr iend of a

pplicant. Acc ording to C.W ., the g roup spent two nights at Weaver ’s house. One of those nights, C.W

. slept in the same bed with applicant in an upstairs g uest room. C.W

. awoke the next morning to fee l applicant rubbing his stomach. Applicant bega n fondling C.W .’s penis and eventually perf ormed oral sex on him. At the time this incident occur red, C.W

. was twelve y ear s old. After this incident, applicant molested C.W

. o n n u me r o u s o th e r o c c a s ions until C.W

. was six teen or sevente en y ear s old. C.W . rec ounted that applica nt had molested him betwee n fifty and one hundred times. Ex cept for another trading -ca

rd-show trip to Hous t o n i n J an uary 1993 (which J .G. and J .W. did not attend), these other incidents all occur red in Dallas. At some point, applicant war ned C.W

. not to tell any one about these incidents or applicant would have C.W

. “take n car e of.” C.W

. interpre ted that statement

We have renumbe red applicant’ s al l egations. They wer e alleg ations 2, 4, and 7 in the 1 application.BRATCHER — 3

to mean “de ath.” At some point, C.W .’s family was having financ ial troubles. When C.W

. was six teen y ear s old, applicant boug ht him a car . The re cord c ontains faxes, sent by C.W . to applicant at a

bout the same time, off

ering fre e tans a t a tanning salon and de picting homose x ual ac ts, a s well as picture s and notes indica ting a

n aff ectionate rela tionship. C.W

. testified to having trust issues with his high- school g irlfriend and others. He explained that he wa s depre ssed, anxious, and ex tremely jealous. He further

explained that he did not know who to trust, that he felt that he was taken advanta g e of at a y oung ag e and “it just rea lly took a part of me t h at I never g ot to fully develop.” He said that he and his g irlfriend broke up beca use he “pre tty much drove her a

way .” Af t er he broke up with his g irlfriend, C.W

. decide d that he neede d help, so he visited a doctor. C.W

. mainly talked a bout his g irlfriend but also mentioned that he had been sexually abused. The doc tor presc ribed a

n anti-depr essant, but C.W. vi sited her only a few times, beca use he c ould not affor d it. I n 1999, while living in California, C.W

. told his br others, Ross a nd J .W., in vag ue ter

ms, 2 about applicant molesting him. They wer e livid about it. Around that time, C.W

. sent applicant a letter confr onting him about what he had done. C.W

. stated that the letter expressed his true fee lings in the harshe st manner that he could put on paper . After the letter was s en t , applicant never attempted to contac t C.W . ag ain. L ater that y ear , C.W

. moved back to Texas, and he soug ht help for depre ssion from Fa y teen Marsha ll, a li cense d profe ssional counselor. C.W

. saw Mar s h al l fo r approximately four months

. C.W . and Ross both testified about C.W.’s outcry . J .W. did not testify

. 2BRATCHER — 4

C.W was using marijuana heavily , which Marsha ll advised him to stop. She also rec ommended that he g et on anti-depr essants. C.W

. expressed confusion and sometimes thought he was at fault for the sexual abuse he had suffe red. Marsha ll testified that C.W

. car ried a lot of shame for what happene d, that he had sexual-identity issues, that he had low self-e steem, and that he had had suicidal fee lings in the past. Testing showed that C.W

. had “seve re anxiety ” that was “off the char t.” Eac h session, Marsha ll advised C.W

. to tell his pare nts. At some point during trea tment, C.W

. told his fathe r, who

was supportive of C.W

. but ang ry with applicant. A few day s later, C.W

. told his mother, who was also upset. I n J anuar y 2002, C.W

. called the Dallas Police Depa rtment about applicant’ s molestation of him over the y ear s. Detec tive J oseph Corden took the call and was subsequently assi gn ed t o t h e

case . I n Marc h 2002, he arr ang ed the rec ording of a phone call betwee n C.W

. and applicant without applicant’ s k

n o w le d g e . T h e c o n te n ts o f th at conver sation convince d Detec tive Corden that probable

3

cause exis ted to arr est applica nt. B. Th e Lett er During the State’s direc t examination, C.W .’s letter to applicant was rea d by C.W

. to the jury as follows: David Br atche r, I ’m writing y ou a letter that I fee l is well overdue and I fee l I need to write to y ou. What y ou did to me, when I was y oung er was a very cold and one of the most awf

ul things any one could do to another human being

. You not only took advanta g e of me at a y ou n g age, y ou have made me very emotionally unbalanc ed. You know very well what y ou did, and I think of y ou as one of the sickest minded human being s that has eve r wa lked the fa ce of this earth.

Be cause C.W

. knew that the phone call was rec orded, the rec ording did not violate Texas 3 law. See T E X . P E N A L C O D E § 16.02(c) (3)( A) (West 2004) ( aff irmative defe nse to prosec ution if a person acting under color of law interce pts a wire, or al, or electronic communication if one of the parties to the c ommunication has g iven prior c onsent to the interce ption).BRATCHER — 5 I not only trusted y ou as my boss, my friend, but my whole family did as well. Now that I look back over what y ou did to me, y ou wer e never a friend to me or my family . Be cause of this, I have not been able to g ive a hundred per cent of my trust to any body including my family , my friends, a nd my rela tionships that I have been in. I put a lot of trust into y ou, and why wouldn’t I ? But y o u t o o k that trust and absolutely

demolished it. I think y ou have some very major problems. Otherw ise y ou never would have done to me what y ou did. Who knows who else y ou have done this to. All the times that y ou told me y ou wer e my friend, now I know what y ou wer e rea lly wanting from me. You ar e nothing but a pedophile. You have taken a part of my life and completely ruined it. I ’ve been in a deep depre ssion for a number

of y ear s. And after knowing wha t happene d to my family befor e this, y ou just saw me as a vulnera ble littl e boy and took advanta g e of the situation. Ho w do y ou even live y our life as a Christian? You’re much closer to t h e devil. You portray a life t otally unlike the one y ou live. I ’ve just noticed so many things about y o u . And it’s no wonder why y ou live alone and have no friends beca use y ou are a sick, sick, sick, sick, sick excuse of a human being

. And, in f act, I bet the whole rea son that y ou opened All Pro Sports Cards was to be like a lion over his prey . L ittle boy s. I don’t want to ever have contac t with y ou ag ain. I ’ve alre ady told both Ross and [J .W.] what y ou did to me. And y ou better hope and pray that our paths neve r cross ag ain in the future. Should y ou ever have contac t with any one in my family or that I know, I pro m i s e I wi l l ruin y our life. I promise. I hope that y ou rot in Hell beca use I know that I

won’t see y ou in heave n. Signed Core y . Also, find a way to make [J .G.] quit his job with my fathe r. That could just be conta ct with people I

know, and I

alre ady told y ou what I

would do. 4 C. Rec orded Telephon e Call The recor ded telephone conversation between C .W. and app l i ca n t was play ed to the j ury . I n that conver sation, applicant admitted to having a sexual rela tionship with C.W

. but claimed that C.W

. initiated the conduct, that it occur red when C.W

. was eig hteen, and that it lasted only a short time. Applicant claimed that this experience cause d him to fall in love with C.W ., and althoug h he was not g ay , he would have that experience ag ain.

The written version of the letter, admitted as an exhibi t, co n t ains minor sty listi c 4 discrepa ncies from C.W .’s rea ding of the letter to the ju ry . Al s o , we repla ced J .W.’s and J .G.’s names in the letter

with initi als.BRATCHER — 6

Bu t appli cant made various statements in the telephone conver sation that indicated t h at applicant had harbor ed unusually aff ectionate fee lings towards C.W

. even when C.W

. was a child: “I think about y ou all the time,” “[Y]ou’re still my best friend I ’ve ever had,” “I g av e y ou

ever y thing,” “I ’ve g ot ever

y note, ever

y fax, ever

y letter that y o u ev er wrote to me. I ’ve still g ot

ever y one.” A pplicant furthe r said, “I ’ve g ot the very g raphic things too that y ou sent to me.” Ap plicant also descr ibed two ty pes of conduct that he claimed C.W

. eng ag ed in as an adolesc ent, in which C.W

. arr ang ed on his own initiative to be in appli cant’ s prese nce when applicant was nude. First, he claimed that C.W

. would crawl t h rough a dog door to g et inside applicant’ s house while applicant was taking a bath. Second, applica

nt claimed that C.W. would 5 unlock a door at the tanning salon and walk in w hen applicant had no clothes on. Applicant never said that he repor

ted such inappropria te behavior to C.W .’s pare nts or any o n e else. Applicant maintained: “I

alway s respe cted y our privac y and I never repe ated a

ny thing y ou ever

said to me.” I n a few i nstance s during the conve rsation, applicant chang ed his story about events when presse d by

C.W

. When C.W

. ref

err ed to the Houst on trip that included J.W . and J.G. (which was the first trip), applicant maintained that he slept in a bed upstairs while C.W

. slept downstairs. When C.W

. stated that J .W. would know what happene d, applicant said, “Wait a second, when [J .W.] went with us,” applicant slept downstairs on a fold-out sofa with J .W. Applicant further stated, “You’ ve g o the trips mix ed up.” When C.W

. re fe rr ed t o the time he spent with applicant in applicant’ s Cadillac, applicant said he had just g otten a divorce , but when presse d, he acknow ledg ed that he and his wife were in fac t still marrie d at t he ti me. Applicant said that C.W . was a lrea dy driving when

To this statement, C.W

. retorte d, “Where wer e [J

. G. ] and [applicant’s other stepson]? 5 Where would they

have be en at this time? ”BRATCHER — 7

he worke d for a tanning salon, but when presse d, applicant acknow ledg ed that C.W

. did not y et have

a ca r, but applica

nt maintained that C.W. di d have a driver’ s license. At one point applicant said, “Okay , d o y ou just need somebody to cuss at or somebody to blame, do it to me. I mean rea lly , if that will help y ou g et on with y our life, then say whateve r y ou want to to me and I ’ll acc ept it. I mean r eally , I want y ou to have a g ood life.” Numerous times in the conver sation, when C.W

. presse d applicant to explain what happene d to C.W . as a c hild, a

pplicant told C.W. to come and see him. But later, when C.W . sug g ested that he would take applicant up on his offe r and come talk to him in person, applicant appea red to demur, say ing, “Well, y ou’ll have to call m e. ” At various ti mes, applicant ex presse d suspicion about t he telephone call—re fer

ring to C.W .’s letter that told applicant not to contac t him, sug g esting that C.W

. was try ing to se t him up, and asking who was sitting the re w ith C.W

. Applicant mentioned C.W .’s l etter six times during the conversation. The first time C.W

. b ro ac h ed t he subject of being molested, applicant said that he was “ver y confuse d” by the letter. L ater , applicant told C.W

. to come and see him to explain the letter to him. I n his third ref ere nce to the letter, a

pplicant stated, “ [A] ll I g ot was a le tter fr om y ou say ing y ou didn’t want me to contac t y ou ag ain.” L ater , he said, “I can’ t g et past the fac t y ou wrote me a letter when what happene d with

us when y ou wer e eig hteen was y our initiation.” A fifth time , ap p l i ca nt ref err ed to the letter as follows: “[Y]ou all of a sudden wrote me a letter and started say ing a bunch of stuff that I didn’t even know what y ou’re talking about” and say ing that C.W

. had alre ady told his brothers. The final time he re fer red to the le tter, applica

nt said, “You blewmy

mind when y ou wrote tha t letter.” D. Defense’s Evidence On cross-e x amination, C.W

. acknow ledg ed that he had a shoplifiting conviction from 2004BRATCHER — 8

o r 2005, which occur

red around the same time he beg an talking to the Houston pol i ce . He al s o acknow ledg ed that his family financ es wer e bad in 1990. When questioned about whether J .W. slept i n t h e s ame bed with applicant during the 1991 Houston trip, C.W

. replied that they sta y ed at Weaver ’s house for multipl e nights and he did not reme mber if J .W. slept with applicant on one of those nig hts. Never

theless, C.W. had a “ve ry vivid memory ” of applicant sexually assaulting him on that trip beca

use it was C.W.’s first sex ual experienc e. Weaver testified for the defe nse. He claime d t h at appli cant and the boy s stay ed only one night at his house in J anuar y 1991. He also testified that there was no bed in the upstairs g uest room at that time. He further testified that applicant and the boy s slept downstairs in the living room, but Weaver acknow ledg ed that he w ent to sleep be fore ever y one else

. J .G., one of applicant’ s stepsons, also testified for the defe nse. He said that he never noticed any unusual behavior betwee n applicant and C.W

. He acknow ledg ed that applicant sometimes g ave C.W

. things and that C.W

. someti m es s at o n applicant’ s lap, but he maintained that those events

occur red w ith C.W . no more ofte n than with applicant’ s step-childre n or their other friends. Reg arding the J anuar

y 1991 trip to Houston, J .G. said that applicant a nd all the boy s spent only one night at Weaver ’s house, and they all slept in the living room. J .G. said that he and C.W

. slept on the fl o o r n ear eac h other in sleeping bag s while applicant slept on a couch, which might have been a pull-out sofa bed. He also said that he had a bad case of poison ivy at the time that kept him awake most of the night. As f ar a s he knew , C.W . did not leave his sleeping bag that night. J .G. also testified that he and C.W

. had a sexual rela tionship that beg an a month be fore the J anuar y 1991 trip. On cross-e x amination, J .G. acknow ledg ed that his memory of dates was fuzz y , and that it was possible that his first sexual encounte r with C.W

. occur red in J anuar

y or Fe bruar

y ofBRATCHER — 9

1991. On rebuttal, C.W

. acknow ledg ed that he and J .G. had, in f act, had a sexual rela tionship, but C.W . maintained that the r elationship beg an af ter the January

1991 incident with applicant. II. P ROCEDURAL BACK GR OUND

A. Dallas Charges Applicant was indicted in Dallas for acts co m mitted ag ainst C.W

. He g ave his attorney s, Rick Russell and Reed Prospere , the letter that C.W

. had written to him. Russell and Prospere used

numerous experts on applicant’ s behalf , including Dr. Randall Price. I n h i s habea s aff idavit, Prospere stated that applicant was awa re that his attorney s had a “full disclosure” policy with the ir experts and wer e not selec tive with any information they had. Prospere further stated that applicant knew of this a

nd never objected, nor did he sug g est that his a ttorney s not disc lose any information he g ave them. C

. W.’s letter was disclosed to Dr. Price in the course of his work in assisting the d ef en s e, and Dr. Price testified for the defe nse at trial. After Dr. Price’s testimony on dir ec t examination, the S tate asked to see his file. I n the heat of battl e during trial, P ro s p ere offe red the letter into evidenc e, without consulting applicant, beca use he was cer

tain that the State would offe r it if he did not. Applicant was convicted and sentenc ed to fifty -five y ear s in prison, but a motion for new trial was g rante d. B. Hou ston Ind ictm ent Applicant was subsequently indicted in Houston for the offe nse of ag g rava ted sexual assault of a child. For enhanc ement purposes, the Houston indictment alleg ed that applicant had previously been c onvicted in 1979 of sexual abuse of a child. C. Voir Dir eBRATCHER — 10

During jury

selec tion, the prosecutor

approa ched the bench a

nd told the judge and def

ense

co u n s el that she intended to talk about punishment. The judge responde d that there was no punishm en t elec tion for a jury in the file, so punishment would be to the court. Def ense counsel L aird responde d that p u n i s hment was supposed to be to the jury and that he thought applicant’ s previous attorney had filed an elec tion. After some discussion, the prosec utor said that she did not mind if the defe nse wanted to elec t jury puni shment. L aird responde d, “Tha t’s what we had

an t icipated all along .” The judge then direc ted, “Go ahea d and get it filed right now and t h en I ’l l g ive y ou some time to talk to them about punishment.” After the benc h confe renc e, the prosec utor discussed the punishment ra ng e for the offe nse of ag g rava ted sexual assault, the punishment rang e with one pr ior conviction, and the punishment rang e with two prior convictions. She also discussed the punishment r ang e for the lesser- included offe nse of sexual assault, the rang e if the lesser offe nse wer e enhanc ed by one prior conviction, and the rang e if the lesser offe nse wer e enhanc ed by two prior convictions. The prosec utor’s discussion

was hy pothetical, and she never told the venire that applicant had any prior convictions. After this discussion, the prosecutor asked the venire—first i n g ener al and then row by row

— i f an y one had

a problem with the punishment rang es discussed. She rec eived response s from sever al prospec tive jurors and pa ssed the discussion to defe nse counse l. L aird then approa ched the bench and informed the trial judge that applicant was ref using to sign the punishment e lection. Acc ording to L aird, applicant was conce rned that the curr ent judge presiding over jury selec tion (Judge J eannine Ba rr) would not be the same judge that was presiding

over the trial (Judge Mary Ba con ). W h en asked if applicant was now interested in having the punishment phase tried befor e the judge , L aird responde d that applicant might want to have it befor eBRATCHER — 11

the curr ent judge (Judge Ba rr) but not befor e J udg e Ba con, beca use applicant did not know her. The judge sug g ested the possibili ty that she would be available for punishment proce eding s “by way of a P.S.I . if he’s f

ound g uilty .” A br eak w as take n for L aird to explain the situation to applicant. After the bre ak, L aird proc eede d with voir dire. He ref err ed only once to the possibili ty of having a prior conviction, to explain that a person might choose not t o testify to avoid being impeache d with a prior conviction at t h e gu i l t phase of trial. He g ave the hy pothetical of being

acc used of se x ual assault and ha ving a prior convic tion for theft. D. Trial Applicant pled “not guilty ,” and the guilt phase of tr i al was conducted before a jury , with J ud g e B a c o n p r esiding

. Applicant did not testify , and no one mentioned applicant’ s 1979 conviction. I n her opening statement, the prosec utor briefly talked abou t t he rec orded telephone

conver sation bet

w e en C.W

. and applicant. She stated that Offic er Corden rec orded the conver sation, that C.W

. was try ing to g et applicant “to ad m i t al l t h e abuse,” and that applicant appea red to be suspicious about the phone call. L aird objected to the prosec utor discussing what wa s in the defe ndant’s mind in opening statement, t h e o b jection was sustained, and the jury was g iven an instruction to disreg ard. I n his opening statement, defe nse counsel also ref err ed to the rec orded t elephone

conve rs at i o n . De fense counsel said, “I think when y ou look at the tape and y ou make y our own conclusions from it, y ou will see that it is not somebody who has g uilty knowledg e or g uilty actions that made that tape rec ording

. You will see that the Da llas Poli ce Depa rtment used [C .W.] as bait to try and lure him into a false admission and it wasn’t done.” Def ense counsel further stated, “You will actua lly hear the defe ndant’s voice. You’ll hear his comments. You’ll hear his statements,BRATCHER — 12

unbeknownst to him and as a setup with the Dallas Police Depa rtment and [C .W.] as bait say ing that this occurr ed.” During C.W .’s di rec t examination, the S tate offere d into evidence the l etter that C.W

. had written to applicant. L aird objected that the letter was “self- serving ,” “cumulative of the testimony alre ady g iven to the jury ,” and “mea nt only to inflame the minds of the jury .” He arg ued that the prejudicia l effe ct of the letter outwe ighe d its probative nature beca use C.W. had “alre ady

testified to all of this.” The State responde d that the letter “g oes to show the rela tionship at the time betwee n the victim and the defe ndant. His first time he ever told the defe ndant and approa ched him with this topic. And it’s rele vant to the sequen ce of the case .” L aird responde d that C.W

. “had time to compose it and put in there what he wanted to as opposed to say ing, ‘He re’ s what happene d and this is what I did.’” And L aird arg ued that C.W

. had “alr ea d y t o ld two other doctors befor e that time period.” The trial judge overr uled the defe nse objections and admitted the letter, which C.W

. later

rea d to the jury

. I n response to defe nse questioning about prior state ments made by C.W . reg arding his ag e when he had his first sexual experience , the S tate questioned C.W

. about s t atements he made at a Dallas hear ing. I n subsequent cross-e x amination, defe nse counsel asked C.W .: “All y our time and eff ort that y ou put into y our testimony under oath in Dallas as to the number of events and occa sions it happene d, that bothere d y ou when y ou didn’t g et the result that y ou wanted, didn’t it? ” The State objected to the question, and the objection was sustained. At a bench confe renc e, the State arg ued that this question by

defe nse counse l cre ated a false impression and opene d the door to the re sults of the Dallas trial. Def

ense counsel arg

ued that his questioning did not open the door, and also that beca use the State’s objection was sustained, he never rec eived an answe r to his question. But J udg eBRATCHER — 13

Ba con sided with the State and ruled that evidenc e about the Dallas trial would be admitted. C.W

. was then pe rmitted to testify that applicant wa s convicted a t a jury trial in Dallas and se ntence d to fifty -five y ear s in prison but that there was a problem with the jury char g e that cause d the case to be dismiss ed with the possibili ty that it might be retrie d. On cross-e x amination, L aird questioned C.W

. more about the dismiss al and then asked if it was corr ect that C.W

. was not happy , “bec ause that’s when the char g es g ot filed here in Houston, was afte r the results of the case in Dallas wer e overturne d. ” C .W. responde d, “The only rea son I ’m not happy is it’s not over from the orig inal char g es being g uilty and I ’m still having to deal with this when all I want to do is put it behind me.” Over L aird’s objection, J udg e Ba con submitt ed the lesser- included offe nse of sexual assault in the jur y ch ar ge. The jury char g e also included instructions reg arding extraneous offe nses and prior convictions, which appea r to be a response to the evidenc e of applicant’ s extraneous offe nses ag ainst C.W

. in Dallas and the conviction arising from those offe nses that was later overturne d. The jury was instructed that it could not consider extraneous offe nses unless it found bey ond a rea sonable doubt that applicant had committed them and that those offe nses could be considere d only for cer tain specifie d purposes (e.g

. motive, opportunity ). The jury was instructed that prior convictions could not be considere d as any evidenc e of g uilt, and that such evidenc e was admitted “for the purpose of aiding y ou, if it does aid y ou, in passing upon the weig ht y ou will g ive that cer tain evidenc e, and y ou will not consider the same for a ny other purpose .” J urors wer e also g iven a g ener al instruction not to consider matters that wer e not in evidenc e: During y our delibera

tions in this case , y ou must not consider, discuss, nor rela te any matters not in evidenc e befor e y ou. You should not consider nor ment i o n any persona l knowledg e or information y ou may have about any fac t or person connec ted with this case which is not shown by the evidenc e. I n closing arg ument, the prosecutor arg ued that C.W

. h ad n o motive to lie and that, C.W .,BRATCHER — 14

as a heter osexual male with “a g irlfriend sitt ing outside,” was underg oing gr eat embarra ssment in testify ing. The prosec utor further arg ued that applicant was a pedophile and that the sexual contac t betwee n C.W

. and J

. G. wa s p roof that applicant had abused C.W

. beca use it was not normal for twelve- y ear -olds to eng ag e in such c onduct. The prosec utor also arg ued that C.W

. acc urate ly reme mb e r e d d e ta il s a s s o c ia te d w ith the 1991 trip to Houston: the Harlem Globetrotters and the Boy Scout para pherna lia upstairs at Weaver ’s house. And she arg

ued that the rec orded tel ephone conver sation showed that applicant was perve rted, had an abnorma l rela tionship with C.W ., and was molesting C.W

. The prosec utor made no mention of prior c onvictions. L aird’s closing arg ument included a discussion a bout the Dallas trial. He told the jury that the Dallas case had been dismiss ed and then, “af ter the Dallas case didn’t do any g ood,” C.W

. had essentially said, “Wait a second.

. . . T h er e wa s one time in Houston at Her b Weaver ’s house in 1991 th at I wa s s ex u al l y assaulted. I t was my first sexual experience .” L aird then ref err ed to the testimony from J .G. to show that it was “not [C .W.’s] first sexual experience , that it was a long list of sexual experience s.” L aird arg ued that C.W .’s alleg ations wer e the result of his confusion about his own sexual identit y , not from a se x ual assault committed by an adult. Nea r the end of his closing argum ent, L aird admonished the jury to focus on whether the Houston offe nse occ urre d: The point is it [t he Houston offe nse] occur red in J anuar

y of 1991 or it didn’t. I f y ou believe bey ond a rea sonable doubt that the proof shows to y ou that it didn’t occur in J anuar y of 1991 in Her

b Weaver ’s house, then find him not g uilty and g et out of here and be done with this and let him g o back to Dallas and let them decide what they ’re g oing to do up t here beca use that is not y our conce rn. Your conce rn is that he’s alre ady been tried for a case in Dallas and the case has been dismiss ed. “Well, let’s try him on this one event in Houston.” When does this madness st op? How many trials do y ou have to g o throug h? How many trials does that man and his family haveBRATCHER — 15

to go thr oug h? The jury found applicant g uilty of ag g rava ted sexual assault. Punishm ent was tried to J udg e Ba rr, who a ssessed punishment at seve nty -five y ear s in prison. E. Hab eas Evidence 1. V oir Dire / En hancem ent Clai m I n his aff idavit, L aird said that he fully discussed with applicant his options for jury or judge sentenc ing. Be fore trial beg an, applicant said t h at h e wa n t ed a judge to assess punishment, not a jury

. L aird said that he explained to applicant that J udg e Ba rr, not J udg e Ba con, would be assessing punishment, and that in his opinion, J udg e B arr might asse ss a har sher punishment bec ause of the nature of the conviction and in light of the prese ntence repor t. L aird stated that he had believed that applicant’ s previous attorney had filed a jury elec tion, “but the bench discussion g ave me one more opportunity

to confirm with Mr. B ratc her tha t he did not want the jury to assess punishment.” L aird further stated that he allowed the prosec utor to discuss the full rang e of punishment for enhanc ed offe nses beca

use he had used the same tactic in a trial six months ear lier ( State v. Colli ns ) and secur ed an acquittal. He said that he believed that jurors who wer e easie r on punishment would also be less inclined to find a defe ndant g uilty

. At the habea s hear ing, L aird reiter ated some of the response s in h i s af fi d av i t, but he also testified to other fac ts. He testified that applicant had passed a poly g raph test and that the poly g raph examiner was one that J udg e Ba rr used in connec tion with sex-offende r probationer s. Ap p l icant wanted punishment to be a ssessed by J udg e Ba rr beca use, if he wer e convicted, she would at least know that he pa ssed a poly g raph c onducted by an ex aminer on whom she often relied. L aird a lso testified that h e k n ew at the time the State was questioning the venire about punishment thatBRATCHER — 16

punishment would be assesse d by the judg e. But L aird did not want punishment to be assessed by a judge ; he pref err ed a jury

. He claimed that he told the judge that he wanted the jury to assess punishment, not that he thought the jury was 6 assessing punishment. L aird testified that he did not want the judge to a ssess punishment be cause he thoug ht J udg e B arr would be too harsh on applica nt. L aird a cknowledg ed that jury assessment of punishment was ag ainst applicant’ s wishes and th at who assessed punishment was applicant’ s call. During questioning, L aird reitera ted t hat he allowed the prosec utor t o as k q u estions about enhanc ements beca

use the prospec tive jurors’ answe rs to those questions would help him deter mine which jurors would be more lenient at the g uilt stag e of trial. L aird believed that the prosec utor, by framing her questions hy

pothetically , avoided informing the jurors of applicant’ s prior convictions. When a sked further about the Colli ns case , L aird acknow ledg ed that the defe ndant had elec ted for the jury to assess punishment. L aird also said that he had not revie wed his case file b ef o re ex ec uting his aff

idavit or testify ing at the habea s hear ing beca use his file was lost. He also said that he had not revie wed the trial rec ord except for

a small portion sent by

habea s counsel. Applicant testified that he told his attorney that he wanted the judge to assess punishment beca use of the poly g raph he had taken and the fac t that the examiner was someone upon whom J udg e Ba rr relied. Applicant testified that he never told counsel that he wanted a jury to assess punishment. 2. The Letter

At the habea s hear ing, both habea s counsel and L aird wer e under the mistaken impression 6 that J udg e B acon ha d presided ove r jury selec tion.BRATCHER — 17

I n his aff idavit, L aird stated that he was never made awa re of communications betwee n applicant and the Dallas attorney s, that applicant did not inform him how the State had obtained the letter, a nd that he (L aird) did not know t hat t he Dallas prosec utor had, in fa ct, obtained the le tter. L aird stated that he was “g enuinely surprised by the letter” and that J udg e Ba con would let it in afte r C.W

. had testi fied t o the s ame facts on direc t examination. L aird further said, “Tha t was the first time I had hear d about the letter, and that it had been used by the other attorney s.” Although L aird had re viewed the testimony of eve ry witness in the Dallas trial, he did not rec all seeing the l etter. He c ontended that he did not find any mention of the letter in the r ecor d of the Da llas trial. At the habea s hear i n g , habea s counsel pointed to wher e the letter had been admitted into evidenc e and r ead by

C.W . to the jury in the Dallas trial. L aird acknowledg ed that he had made a mistake. L aird also acknow ledg ed that, in the heat of battle in the Houston trial, he did not think of objecting to the admis sion of t h e l et t er o n the basis that it was an inadmissible prior inconsist ent 7 statement. I n retrospe ct, he “ would have love d to have made that objection.” 3. Dallas Trial C

laim I n his aff i davit and at the habea s hear ing, L aird said that he did not believe that he had opened the door to the re sults of the Dallas trial by asking C.W

. whether he wa s satisfied with the results. During the habea s hear ing, L aird acknow ledg ed that he did not want the jury to know about the results of the Dallas trial. L ater in the habea s hear ing, L aird said that he “should not have asked that question.” B ut L aird a rticulated a

strateg y for a sking the question: I was try ing to g ive t h e j u ry the impression that as much as he had wanted to con v ince them that all of these prior bad acts betwee n him and Mr. Br atche r

Habe as counsel fra

med the question using the word “inconsistent,” but he appea rs to have 7 meant “ina dmissibl e prior consistent statement.”BRATCHER — 18

obviously must have been bad and must have been something t hat the jury should have considere d, that it frustra ted him and that he was made and came to Houston to file this case , so that it frustra ted him from the standpoint that as much as he was able to g et i n in Dallas, and y et he still wasn’t able t o g et t he conviction so he comes to Houston to ge t a conviction in Houston. I n his aff idavit and during the hear ing, L aird opined that opening the door to the results of the Dallas trial did not chang e the outcome of the Houston trial. F . Habeas Jud ge’s F ind ings 1. V oir Dire / En hancem ent Clai m The ha beas judg e made the f

ollowing r eleva

nt findings r eg arding the voir dire c laim: 8 10. The a pplicant testified that he de sired the c ourt to assess punishment. 11. The c ourt did, in fact, a ssess punishment. 12. The court finds cre dible the asser tion by J ules L aird that he wished to voir dire the jury on rang es of punishment beca use he believed it was a strateg ic device helpful in deter mining which jurors would be desirable /undesirable in g uilt/i nnocenc e, even in a ca se whe re the judge was g oing to a ssess punishment. 13. The jury was never informed during voir dire whether the defe ndant had any prior convictions; all discussions were pr operly had in the hy

pothetical. 1 4

. The applicant fails to demonstrate that L aird’s chosen strateg y reg arding v o i r dire, and hi s ch o i ce not to object to the S tate’s punishm ent voi r di re, fell below an objective standa

rd of r easona

bleness. 15. The applicant fails to demonstrate that but f or L aird’s chosen voir dire strateg y , a rea sonable probability exis ts that the result of the proce eding would have been differ ent. 2. The Letter Reg arding the admission of C.W.’s letter, the habe as judg e made the following finding s : 21. The J anuar

y 22, 1999 letter from the complainant to the applicant was introduced

J udg e Randy

Roll. 8BRATCHER — 19

as evide nce at the applicant’ s trial in Dallas by his attorney

Reed Prosper e. 22. The afor ementioned trial in Dallas took place befor e the trial in the instant cause . 23. The court finds cre dible Prospere ’s asser tion that the letter wa s not divulge d to the def ense e x pert in violation of attorne y -client privileg e. 24. The applicant never tol d L ai rd h e believed the letter had been divulge d in violation of attorney -client privileg e. 25. L aird’s failure to object to the letter, on the basis that it was obtained in violation of atto rn ey -client privileg e, did not fall below an objective standard of rea sonablene ss, espec ially in light of the fac t that it was an exhibi t in a prior trial and the prior attorney s deny a violation of privileg e and the applicant never advised him it was divulge d in violation of privilege

. 9 26. The applicant fails to show that but for the admiss i o n o f t h e J anuar y 22, 1999 letter, a rea sonable probability exis ts t h at the results of t he procee ding would have been dif fer ent. 3. Dallas Trial C laim Wit h respe ct to the alleg ation reg arding the Dallas tria l, the habea s court found: 38. Counsel mad e a strateg ic decision to cross-e x amine the complainant in the instant case with the fac t that the complainant “did not g et the result [he] wanted [i n Dallas]” to show that the complainant was so frustra ted, he made up the incident in Houston, which did not have the same e videntiary problem the Da llas case had. 1 0 39. Counsel d id not believe that his cross-e x amination would open the door to the result of the D allas trial. 40. The applicant’ s appellate counsel (who i s al so habea s counsel) also arg ued on direc t appea l that trial defe nse counsel’s question did not open the door to the result of the Da llas trial. 41. The Court finds that counsel’s opening the door to the Dallas verdic t f ell below an objec tive standard of

rea sonablene ss.

Emphasis in origina l. 9 Br acke ts in habeas c ourt’s finding s. 1 0BRATCHER — 20

42. T he applicant fails to demonstrate that but for L aird opening the door, a rea sonable probability exis ts that the result of the proce eding would have b een differ ent. III. ST ANDAR D I n addre ssing claims of i n ef fe ct ive assis tance of counsel, we employ the famili ar two-part standard articula ted in Strickland v. W ashington that require s a showing of defic ient perf ormanc e 1 1 and prejudice

. Wit h respe ct to the defic ient perf ormanc e prong , we examine whether counsel was 1 2 acting “within the rang e of competenc e demande d of attorney s in criminal case s.” Our revie w of 1 3

co u n s el ’s perf

ormanc e is highly defe rential, with a strong presumption that counsel acte d i n

acc ordanc e with a considere d trial strateg y . Although we look to preva iling profe ssional norms, 1 4 1 5 trial counsel will not be deeme d defic ient simply beca use his trial strateg y was “risky , and perha ps highly undesirable to most criminal defense attorney s.” 1 6 Wit h respe ct to the prejudice prong , we must deter mine whether there is a rea sonable probability

that the outcome would have been differ ent but for c ounsel’s def icient per formanc e. 1 7 A rea sonable probability is one that i s sufficie nt to undermine confide nce in the result. This 1 8

466 U.S. 668 (1984). 1 1 See E x parte Ellis , 233 S.W .3d 324, 329-30 (Te x . Crim. App. 2007). 1 2 Id. at 330. 1 3 Id. 1 4 Id. 1 5 Id. at 331. 1 6 Id. at 330. 1 7 Id. 1 8BRATCHER — 21

sta n d ar d d oes not require a showing that counsel’s actions “more likely than not altere d the outcome,” but “the differ ence betwee n Strickl a n d ’ s p r e ju d ic e s ta n d a r d a n d a more-pr obable- than-not standard i s s light and matters only in the rarest case.” “The likelihood of a differ ent result must 1 9 be substantial, not just conceiva ble.” 2 0 IV. ISSUE 1: VOIR DIRE Rather than addre ss complex issues conce rning defic ient conduct, we choose to addre ss only the prejudice prong of Strickland with respe ct to this issue. We observe that the prospec tive jurors

wer e never told in voir dire that applicant ha d a prior c onviction. We also observe that the State’s voir dire on punishment r ang es—which included rang es for the char g ed off ense, a lesser- included offe nse, and en h ancements for both one and two prior convictions—would appea r, at least to a lay person, to be comprehensive. A l ay person mig ht suspect that the prose cutor wa s talking about enhanc ed punishments beca use the defe ndant had at least one prior conviction, but a lay person might think that questioning about all of these punishment rang es was simply the g ener al prac tice. I n any event, the jury char g e contained an instruction that the jurors wer e not to consider matters that wer e not admitted into evidenc e. We g ener ally presume that jurors follow the instru cti ons, so we 2 1 presume tha t jurors would not infer the exis tence of a pr ior conviction that no one ha s said exis ts. I n fac t, if applicant had elec ted for the jury to assess punishment, no one would even seriously question the discussion of enha nced punishment ra

ng es in voir dire. This is not beca use

Harrington v. Richter , 131 S. Ct . 770, 792 (2011). 1 9 Id. 2 0 Casan o va v. State , 383 S.W .3d 530, 543 (Tex. Crim. App. 2012); Y oung v. State , 283 2 1 S.W .3d 854, 882 (Tex. Crim. App. 2009)BRATCHER — 22

discussion of enhance d punishment rang es i s a necessar y evil when the jury assesses punishment. Rather, it is beca

use such a discussion doe s not ne cessa rily taint the jury

—at least when the jury is not informed that a prior conviction exis ts and when the jury is instructed not to consider matters that

are not in evidenc e. I f the defe ndant’s rig hts at t h e gu i l t stag e are not prejudice d by such a 2 2 discussion when the jury

is se t to decide punishment, it is diff icult to se e how that c hang es simply beca use the judg e is se t to de cide punishment instead. We hold that applica nt has failed to sa tisfy the pre judice prong of Strickland

. V. ISSUE 2: TH E LE TTE R A. Deficient P erform ance When the claim of ineffe ctive assistance is that the attorney failed to object to the admission of evidenc e, part of wh at must be shown is that the trial judge would have committed err or to

overr ule such an objection. Thus, if we find that the trial judge would not have err ed in overr uling 2 3 such an objection, then we need not assess whether counsel’s failure to object was the result of trial strateg y . Wit h this cavea t in mind, we addre ss applicant’s pr offe red ba ses for excluding t he letter from evide nce. 1. Attorn ey- Client Privilege T h e attorney -client privileg e g ives the client the privileg e to preve nt the disclosure of

See F rausto v. State , 642 S.W .2d 506, 509 (Tex. Crim. App. 1982) (quoting Martinez 2 2 v. State , 588 S.W .2d 954 (Tex. Crim. App. 1979) (emphasis in orig inal) (“ Certainly , one ca n inform g ener ally

of applica

ble punishment without reading the pre cise a lleg ations for enhanc ement, and the reby avoid what some ha

ve re g arde d as jeopa

rdizing the pre sumption of innocenc e.”)

.

Ex pa r t e Martinez , 330 S.W .3d 891, 901 (Tex. Crim. App. 2011); Ex parte W hite , 160 2 3 S.W .3d 46, 53 (Tex. Crim. App. 2004).BRATCHER — 23

“conf idential communications” made within the attorney -client rela tionship. B u t C. W.’s letter was 24 not a communication that was made within the attorney -client rela tionship. C.W

. was a third party , who stood outside that rela tionship. The rule that codifies the attorney -client privileg e contains a

2 5 “[s] pecia l rule of privileg e in criminal case s,” which provides that “a client has a privileg e to preve nt the lawy er . . . from disclosing any other fa ct wh i ch came to the knowledg e of the lawy er . . . by

rea son of the attorney -client rela tionship.” But such a fa ct m ust still be one that is known only 2 6 within the confines of the a ttorney -client re lationship; fac ts known by others are not privileg ed. 2 7 C.W

. obviously knew (at least at one time) the entire contents of the letter beca use he wrote it. We have indicated that the specia l rule of privileg e is desig ned to cover attorney work product. C.W .’s 2 8 letter to applicant was clea rly not attorney work product. But even if we set aside the fac t that C.W .’s letter was not privileg ed beca use it orig inated from a third party , Prospere ’s aff idavit, which

was believed by the habea s judge , supports the proposition that applicant understood that the letter would not rema in in confide nce. So L air d d i d n o t p erform defic iently in failing to object to the admission of the letter on the g round of attorney -client privileg e. The habea s judge ’s finding to that eff ect is supported by

the re cord. 2. Prior Con sistent S tatem ent T h e h abea s judge made no finding s reg arding applicant’ s contention t hat t he letter was an
See T E X . R. E V I D . 503(b)( 1). 2 4 See id ., subsections (A) -(E) (spec ify ing the entities within the attorney -client 2 5 rela tionship). TEX. R. EVI D. 503(b)( 2). 2 6 Landers v. State , 256 S.W .3d 295, 309-10 (Te x . Crim. App. 2008). 2 7 Cameron v. State , 241 S.W .3d 15, 20 (Tex. Crim. App. 2007). 2 8BRATCHER — 24

“inadmissible prior consistent statement.” Applicant contends that the letter was inadmissible under Rule 613 beca

use it fa i l ed to meet the heasa y exclusion found in Rule 801(e) (1)( B)

. Rule 801(e) (1)( B) provides that a statement is not hearsa y if the dec lara

nt te stifies at trial and is subjec t to cross-e x amination, and the statement is “consistent with the decla rant’s testimony and is offe red to rebut an express or implied char g e ag ainst the d e clar ant of rec ent fabr ication or improper influence

or motive.” We will assume, without deciding , that the letter did not qualify u n d er this hear say

2 9 exclusion and that L aird should have been a war e of tha t fac t. a. Non-Hearsay P urpose I t does not nece ssarily follow from that assumption that the letter (or its contents) constituted inadmissible hear say . Prior consistent statements within a letter might qualify under a hear say exception, su ch as ex cited utteranc e, or might be rele vant to a non-hea rsay purpose. Hea

rsay is 3 0 define d as an o ut-of-c ourt statement offe red “to prove the truth of the matter asser ted.” I f the 3 1 statements in the letter wer e rele vant for a purpose other than the truth of those statements, then they would not be excludable as hears ay , t h o u g h the statements might still be excludable under some other rule of evide nce, subje ct to reda ction, or subject to a limiting instruction. Her e, the contents of the letter we re re l ev ant to a non-hea rsay purpose: to shed light on statements made by applicant du ri n g the rec orded telephone conver sation. Was applicant an innocent person responding to a false acc user, or was he a g uilty person try ing to hedg e, minimi ze,

T E X . R. E V I D . 801(e) (1)( B)

. 2 9 See T E X . R. E V I D . 803(2). Althoug h a letter might conc eivably

qualify as an e x cited 3 0 utteranc e, we are not say ing tha t the letter in this case did so. W e mer ely cite the e x cited utteranc e exception for illustrative pur poses. TEX. R. EVI D. 801(d). 3 1BRATCHER — 25

and deny his misconduct? Applicant ref err ed to the letter six times during the rec orded conver sation to question C.W .’s motive in making the call, applicant expressed suspicion that the call was some sort of setup (which it was), and applicant made statements that could be seen as attempting to minimi ze responsibility

. Thus it was established that applicant knew the contents of the letter, and 3 2 the jury could infer that the contents of the letter wer e a motivating forc e behind various statements made by applicant dur ing the course of the re corde d telephone c onversa tion. I t is true that the letter was rea d to the jury befor e the rec orded conver sation was play ed. But d ef en s e co unsel ref

err ed to the rec orded conver sation in opening statement. He specific all y contende d that the rec ording showed that applicant did not have “g uilty knowledg e or g uilty actions” but instead showed C.W. try ing to lure applicant into a f alse a dmission. b. Non-Bolstering Purpose Applicant’s arg ument does not depend solely upon a conclusion that t h e letter constituted inadmissible hear say . Rule 613(c) provides that a prior consistent statement “is inadmissible except as provided in Rule 801(e)(1) (B ).” Rule 613 relate s to the use of prior statements to impeach or 3 3 support the testimony of a witness. Rule 613(c) essentially codifies the rule ag ainst “bolstering ” to the ex tent that it “pre vents the us e of prior consistent statements o f a witness for the sole purpose

See Morris v. State , 361 S.W .3d 649, 652 (Tex. Crim. App. 2011) (expert testimony that 3 2 gro o m i n g child sex victims can involve minimi zing the offe nder’ s conduct) ; W alter v. State , 2 6 7 S.W .3d 883, 896-97 (Tex. Crim. App. 2008) (discussing “blame- shif t i ng ” statements that are desig ned to minimi ze culpability ); W illiams v. State , 273 S.W .3d 200, 214 (Tex. Crim. App. 2008) (def endant’ s statements that minimi zed the sever ity of his motives and actions could be viewed by the jury as indicating that the def endant’ s acc eptanc e of r esponsibility was not g enuine)

. T E X . R. E V I D . 613(c)

. 3 3BRATCHER — 26

of enhanc ing his cre dibilit y .” The rule, howeve r, “say s nothing about the admi s s i b ility of 3 4 substantive evidenc e that happens to corr oborate a witness.” Fo r re as o ns expli cate d above, the 3 5 letter’s c ontents had substantive re levanc e apa rt from bolstering C.W .’s cr edibility

. c. Rule 403 We now addre ss other rules or doctrines under which evidenc e that is admissible for a limit ed purpose might be excluded or restric ted. Otherw ise-admissible evidenc e may be excluded under 3 6 Rule 403 if there is a sufficie ntly high d ang er that the evidenc e will be used for inadmissible purposes as compar ed to the evidenc e’s probative value wi t h respe ct to the admissible purposes. Rule 403 provides: Although r eleva

nt, evidence may

be ex cluded if its probative value is substantially outweig hed by the dang er of unfair prejudice , confusion of the issues, or misleading the jury , or by considera

tions of undue delay , or needle ss prese ntation of cumulative evidenc e. 3 7 This rule may be cited most often in criminal case s in connec tion with extraneous offe nses that are found to be admissible for non-cha rac ter purposes under Rule 404(b), but it can also apply to out- 3 8

Rivas v. State , 275 S.W .3d 880, 886 (Tex. Crim. App. 2009) (quoting Cohn v. State , 849 3 4 S.W .2d 817, 820 (Tex. Crim. App. 1993)) (e mphasis added)

.

Cohn , 849 S.W .2d at 820. 3 5 Applicant does not alleg e that the evidenc e was inadmissib l e u n d er R u l e 403, that the 3 6 letter could have been reda cted, or that he was entitled to a limit ing instruction, but beca use he did not a nticipate the purpose for which we have found the letter to be re levant, and be cause this is an ineffe ctive-a ssistance-of

-counse l claim, we wi ll addre ss issues that natura lly arise when evidenc e is offer ed for

a limited purpose. T E X . R. E V I D . 403. 3 7 See Montgomery v. State , 810 S.W .2d 372, 386-97 (Tex. Crim. App. 1991) (op. on reh’ g ). 3 8BRATCHER — 27

of-c ourt statements found to be admissible for non-hea rsay pu r poses or pursuant to some other rule. 3 9 L aird made a Rule 403 objection when he ar gued that the prejudicia l eff ect of the letter outweig hed its probative value. L aird’s statement that the letter was “self- serving ” could be construed as ref

err ing to the bolstering potential of the letter, and his statement that C.W

. had time to compose the letter and had alre ady made outcry to two doctors could have been a ref ere nce to the hear say potential of the letter. Howeve r, even if we conclude that L aird’s Rule 403 objection failed to sufficie ntly apprise the trial court of the letter’s potential use for bolstering and hear say purposes,

we c onclude that the r ecor d does not demonstrate a Rule 403 violation as a matter of law. Claims under the rules of evidence are g ener ally revie wed for abuse of di scre tion, with an appellate court reve rsing only if the trial judge ’s decision is outside the zone of rea sonable disag ree ment. And with respe ct to evidentiar y objections, the trial judge ’s discretion is the g rea test 4 0 when the r

ule at issue is Rule 403. 4 1 I n a Rule 403 analy sis, a court must balanc e the probative forc e of the evidenc e and t he proponent’s need for the evidenc e ag ainst any tendenc y the evidenc e has to sug g est a decision on an improper basis or to confuse or distract the jury from the main issues. A court should also consider 4 2 whether the jury is adequately equ i pped to evalua te the evidenc e, the amount of time neede d to

W alters v. State , 247 S.W .3d 204, 218 (Tex. Crim. App. 2007). See also E x p a r t e 3 9 W heele r , 203 S.W .3d 317, 332 (Tex. Crim. App. 2008) (Ke ller, P.J ., concur ring ) (“Most commonly , an unfair preju d i ce claim [under Rule 403] flows from the admission of evidenc e for a limit ed purpose under some other evidentiar y rule, such as Rule 404(b),

. . . Rule 411, Rule 801 (hea rsay )”)

. Blasdell v. Stat e , 3 8 4 S

. W

. 3 d 824, 829 (Tex. Crim. App. 2012); Guzman v. State , 955 4 0 S.W .2d 85, 89 (Tex. Crim. App. 1997).

See M ontgomery , 810 S.W .2d at 378-79 (disc ussing c ases a nd commentar ies) 4 1 Gigliobianco v. State , 210 S.W .3d 637, 641 (Tex. Crim. App. 2006). 4 2BRATCHER — 28

develop the evidenc e, and whether the profe rre d evidenc e mere ly repe ats evidenc e that has alre ady been a dmitted. 4 3 The probativ e fo rce of the letter was high beca use it fig ured prominently in applicant’ s

rec orded telephone conver sation with C.W

. and was highly rele vant to applicant’ s state of mind and to assessing the m eaning , signific ance , and credibility of st atements made by applicant during the

rec ording

. The State’s need for the evidenc e was also high beca use applicant descr ibed the letter in the rec ording only by say ing that C.W

. did not want contac t with applicant and that C.W. had told his brothers. Applicant alluded to the fac t that C.W

. was making alleg ations in the letter but did not descr ibe what those alleg ations wer e. To proper ly assess applicant’ s rec orded statements, the jury neede d to k now the content of the letter. And assessing applicant’ s rec orded statements was important beca

use the rec ording was the only source of admissions from applicant that was available to the State. The letter contained some highly inflammatory lang uag e, which posed s o m e risk of sug g esting decision on an emotional basis, but the inflammatory nature of the letter was also highly rele vant to applicant’ s state of mind during the rec orded conver sation. Fur ther, any unfair prejudice rela ting to the possible hea rsay or bolstering purposes to which the letter mig ht be ac corde d could h ave been ameliorated by a li miting i nstruction. I f an instruction wer e requested, the trial judge 4 4 could have instructed the jury not to consider the contents of the l etter for t he t ru t h o f t h e matters

Id. at 641-42. 4 3 See G arcia v. State , 201 S.W .3d 695, 704 (Tex. Crim. App. 2006) (under Rule 403 4 4 analy sis, lim iting instruction diminished potential prejudice f lowing f rom the evide nce) ; Hende rson v. State , 962 S.W .2d 544, 567 (Tex. Crim. App. 1997) (“whe ther a limit ing instruction would have be en ef fec tive in preve nting the jur y from being influence d by the evidenc e’s pr ejudicial aspe cts” is a leg itimate fac tor in a Rule 403 ana ly sis).BRATCHER — 29

asser ted, nor to consider the contents for the purpose of bolstering the cre d i b i lity of C.W .’s trial testimony , nor to consider the contents for any other purpose ex ce p t t o s how applicant’ s state of mind during the re corde d telephone conver sation and to assess the meaning , signific ance , and

cre dibilit y

of the stateme nts made by applicant dur ing tha t conver sation. And while the letter contained alleg ations that wer e cumulative of what C.W

. testified to, the letter itself was a

unique piece of evide nce be cause it influe nced applicant’ s statements during the telephone call. I n other words, the alleg ations wer e cumulative but applicant’ s kn o wledge of the alleg ations at t he ti me of the t elephone call was not. Finally , we observe that rea ding the letter to the jury did not take much time. For all of the rea sons discussed, we conclude that it would not have been a n abuse of

discretion to over

rule a Rule 403 objection. d. Redac tion One possible reme dy to reduc e prejudice is to reda ct objectionable portions of a document. 4 5 As we observe d ear lier, howeve r, the probative value of the letter flows from its eff ect on applicant,

an d the inflammatory portions of the letter are highly probative for that purpose. The t ri al j u d ge would not have e rre d in refusing to reda ct the letter

. e. Limiting Instruction When evidenc e is admissible for a limit ed purpose, the party ag ainst whom the evidenc e is

S ee C o r onado v. State , 351 S.W .3d 315, 321 n.30 (Tex. Crim. App. 2011) (re peating 4 5 sug g estion by commentator t h at some videotapes could be reda cted to eliminate testimonial statement to avoid a confr ontation problem); Tucker v. State , 771 S.W .2d 523, 535 n.6 (Tex. Crim. App. 1988) (“The trial judge should hear the rec ording s outside the prese nce of the jury in order to rule o n o b

j ec t ions to their admissibili ty , and has the power to delete objectionable portions if nece ssary .”); Carey v. Stat e , 455 S.W .2d 217, 223 (Tex. Crim. App. 1970) (re fer ring to reda ction as a possible re medy

in connec tion with admitt ing e vidence ).BRATCHER — 30

admitted is entitled to a limit ing i n s t ru ct i o n upon reque st. Be cause we have assumed, without 4 6 deciding , that the letter did not satisfy the hear say exclusion—and there fore was not admissible for its truth or to support C.W .’s cre dibilit y —we further assume that applicant was entitled to a limit ing instruction in line with what we have discussed above. We will likewise assume, without deciding , that L aird pe rfor

med def iciently in failing to reque st a limit ing instruc tion.

B. Pr ejudice Be cause the letter was admissible for s o me p u r p o s e s , d e f e nse counsel’s conduct did not cause t h e jurors to hear the contents of a letter that they would not have otherwise hear d. T h e o n l y question is whether there is a rea sonable probability that the outcome of the trial would have been differ ent if the jurors had been g iven a limit ing instruction to g uide their consideration of the letter. Applicant essentially had two defe nsive theories: (1) he did not molest C.W

. during the 1991 Houston trip, and (2) he did not molest C.W. at a ll a s a child. I n the prese nt case , applicant had an advanta g e that most persons acc used of child molestation do not have. There wa s only a narr ow window in time in which the char g ed offe nse could have occur red. The only time C.W

. and applicant wer e toge ther in Houston when C.W

. was under the ag e of fourtee n was the wee kend they went to Houston in J anuar y 1991 for the car d show. Weaver ’s testimony that there was no bed in 4 7 the upstairs g uest room and J

. G. ’s testimony that C.W

. did not leave his sleeping bag would, if believed, tend to ref

ute the claim that applicant molested C.W

. during that time. I n addition, L aird

T E X . R. E V I D . 105(a)

. 4 6 I f the jury believed that applicant molested C.W

. only during the second trip to Houston, 4 7 in 19 9 3 , i t co u l d have convicted applicant only of the lesser- included offe nse of sexual assault beca use C.W

. was fourtee n y ear s old at the time. See T E X . P E N A L C O D E §§ 22.011(a) (2), (c) (1), 22.021(a) (1)( B) , (a) (2)( B)

.BRATCHER — 31

supplied the j ury with a mot ive for C

. W

. to make up the Houst on incident: the Dallas conviction

was overturne d. And J .G.’s testimony that C.W

. had a sexual rela tionship with him befor e the 1991 Houston trip (which, if true, would mean that the Houston trip was not in fac t the site of C.W .’s first sexual ex perie nce) sug g ested the possibility that C.W .’s memory

of that trip was f

aulty

. The letter did not discuss or allude to the 1991 Hous ton incident. The letter’s bolstering eff ect, if a ny , was to whe ther a

pplicant had molested C.W

. in ge nera l. I t was possible for the jury to believe that applicant molested C.W

. over the y ear s in Dallas but did not molest C.W

. on that Houston trip. I f the jury wer e inclined to so believe, it would not matter whether the letter’s alleg ations wer e true or whether C.W

. wa s cr ed i ble, in g ener al, on the point that applicant had molested him during his c hildhood. We are not say ing that applicant’ s Houston-spec ific defe nse was without serious flaws, but 4 8 the defe nse that applicant did not molest C.W

. as a child at all was, in many respe cts, a much more difficult one to advanc e. Applicant had only the g ener al testimony from J .G. that nothing out of the ordinary happene d and applicant’ s denials in the rec orded telephone conver satio n. But J .G.’s testimony and applicant’ s statements wer e lace d wi t h i n crimi nating evidenc e. J .G.’s sexual rela tionship wit h C.W . at ag e twelve sug g ested that one or both boy s had been se x ually abused by

an adult. And althoug h, during the rec orded telephone conver sation, he denied molesting C.W

. as a child, applica

nt admitted to having se x with C.W . when he was e ighte en (barely an adult from a lay perspe ctive) and made a number of statements that stron g ly sug g ested, espec ially in light of

J .G. acknow ledg ed that his sexual rela tionship with C.W

. might have beg un afte r the 1991 4 8 Houston trip, and the implication that C.W

. was motivated to lie about the Houston incident beca use he was dissatisfied with the outcome of the Dallas trial was rebutted by his ref ere nce to the Houston incident in the rec orded telephone conver sation, which occur red befor e the Dallas trial. See below.BRATCHER — 32

applicant’ s knowledg e of the contents of C.W.’s letter, that applica nt’s denials we re not true

. I n any event, with r espec t to whether applicant molested C.W

. in g ener al, the letter did not add much, hear say or bolstering -wise, to the trial evidenc e. The substantive fac ts c ontained in the letter wer e elicited elsewhe re in the trial. C.W

. testified to applicant’ s sexual abuse, to C.W ’s resulting depre ssion and problems trusting others, and to the fac t that C.W

. had told his brothers about the abuse. C.W

. rec ounted that the sexual abuse had happene d over an extended period of time in Dallas. Ross, the oldest brother, also testified about C.W .’s outcry to him. Fa y teen Marsha ll testified that C.W. suffere d from depr ession and fr om anxi ety that was “ off the c hart.” Much of t h e l et t er was not fac tual but was simply an evalua tion of what kind of person applicant must be to have done what he did to C.W

. Given C.W .’s acc usations of child molestation at trial, those evalua tive statements—that C.W

. reg arde d applicant as a “pedophile” and a “si ck” person, for example—were not news to the jury

. The letter also convey ed a tone of emotional distress, but Marsha ll’s testimony about C.W .’s “off the char t” anxiety did so as well. And the jury would understand that the emotional tone of the letter was somewhat artificia l be cause C.W ., who

was try ing to forc e applicant to brea k contac t with him and his family , testified that he purposef ully wrote the letter in as ha

rsh a manne r as he could. Moreove r the bolstering signific ance of the letter is diminis hed when one considers that the trial was full of evidenc e of prior consistent statements from a varie ty of source s: outcries to C.W .’s brothers, to C.W .’s pare nts, to a doctor, and to a counselor , an d statements made by C.W

. in the

rec orded telephone conver sation as he was tal k i n g to applicant. And at least some of these statements wer e admissible for the truth of the matters asser ted. C.W .’s statements to Marsha ll, forBRATCHER — 33

example, were admitted under the outcry statute. 4 9 For all of these rea sons, we conclude that applicant has not demonstrated a re as o n ab le probability that the outcome of the trial would have been differ ent i f t h e t ri al court had issued a limit ing instruc tion with respect to the letter

. VI. ISSUE 3: DALLAS TRIAL Rather than addre s s t h e issue of deficient performanc e, we will g o straig ht to the questi on of prejudice

. One path to acquittal in this case —at least of the offe n s e o f a g g r a vated sexual assault—was to convince the jury that, even though applicant may have molested C.W

. over the y ear s, no molestation occur red during the 1991 Hous t o n trip. The defe nse had testimony from Weaver and J .G. t hat s ug g ested that a mol estation incident could not have happene d at that t ime. Any dissatisfaction har

bored by C.W . about the outcome of the Dallas trial could s upply a motive to make up an incident in Houston. And to make applicant g uilty of aggr a va t ed sexual assault (instead of the lesser offe nse of sexual assault), the incident had to have occur red during the first trip, in 1991, when C.W

. was twelve y ear s o l d , rather than the second trip, in 1993, when C.W

. was fourtee n. 5 0 The notion that the Houston incident was made up beca use the Dallas conviction had bee n

See T E X . C O D E C R I M . P R O C . ar t. 38.072; Bratcher v. State , No. 01-08-00610-CR, 2009 4 9 Tex. App. L EXI S 3336, *16-17 (Tex. App.–Houston [1 Dist] May 14, 2009, pet. ref ’d) (upholding st admission of Marsha ll’s testimony as outcry evidenc e). I n addition, C.W .’s statements to applicant during the rec orded telephone conver sation that ref err ed to the Houston incident qualified as prior consistent statements under Rule 801(e) (1)( B) beca use they tended to rebut the claim o f re cent fabr ication arising from L aird’s cross-e x amination sug g esting that C.W

. was dissatisfied that the Dallas c onviction had bee n overturne d.

And by opposing the submissi on of sexual assault, L aird was attempting to forc e the jury 5 0 to decide only

whether the 1991 incident had oc curr ed.BRATCHER — 34

overturne d was undermined by ref ere nces to the Hous ton incident in the rec orded telephone call, wh ich occur

red befor e the Dallas trial. But applicant made statements during the rec orded

conver sation that sug g ested that C.W

. was g etti n g t h e 1991 and 1993 trips mix ed up. Consist ent with testimony later g iven by Weaver , applicant stated that ever y one slept on the first floor of Weaver ’s house during the 1991 trip—with applicant and J .W. ( not C.W .) on a sleepe r sofa. So, it

was at least possible for the jury to believe that C.W .’s ref ere nces to the first Houston trip during the

rec orded conver sation wer e a result of confusion and that C.W

. later dec i d ed t o m ake up a 1991 Houston incident beca

use of his frustra tion with the Dallas conviction being overturne d. Or it is pos s i b l e t h at t he jury could believe that C.W .’s later memory of the 1991 incident was false and influence d by

his frustration with what ha ppened in Da llas. And while evidenc e about the result of the Dallas trial may have been only marg inally helpful to applicant’ s Houston-spec ific defense, the evidenc e was only marg inally damag ing with respe ct to applicant’ s g ener al defe nse that he had neve r molested C.W

. The usual prejudice associate d with informing a jury about a defe ndant’s prior convictions is that the jurors lear n of extraneous offe nses. But the jury in the prese nt case had alre ady hear d evidenc e that applicant had committed extraneous offe nses in Dallas. Knowledg e that another j u ry h ad found applicant g uilty of those offe nses might have marg inally enhanc ed the cre dibilit y o f C.W.’s alleg ations, except that the conviction was overturne d, which could have been beca use of a technica lity or could have been a sign that something was wrong with the State’s case . The jury was not told the exact rea son the verdic t w as overturne d—just that it was a jury -cha

rg e problem, which could be any number of things. Habe as counsel has sug g ested that, if the jurors lear

ned about the conviction and its dismiss al, they “would be furious and convictBRATCHER — 35

[appl i ca n t ] to make things rig ht,” but that is specula tion, and how a jury perc eives an overturne d g uilty verdic t could well depend upon its own assessment of the complaining witness’s cre dibilit y . And the jury was told that the Dallas offe nses could possibly be retrie d, so it did not need to “make things right.” The jury could l et t he Da l l as authorities attend to the Dallas offe nses, a point L aird made in his closing arg ument. I n addition, ot h er fac tors enhanc ed C.W .’s cre dibilit y . C.W

. made multipl e outcries and suffe red serious emotional problems. Applicant admitted that he had s ex wi t h C

. W .—the only question was when, with applicant posit ing the ag e of ei gh t een. By his own admis sion, applicant overlooke d inappropria te behavior eng ag ed in by C.W

. without info r mi n g C. W. ’ s p a

r e n ts

. A p p licant kept all of C .W.’s faxes (mementos, the prosec u t o r wo u l d call them), thought of C.W

. as hi s best friend, and said that he had fallen in love with him. And acc ording defe renc e to the trial judge ’s finding that applicant was not prejudice d, we can infer that C.W

. appea red cre dible on the witness stand. The prosec utor emphasized in c losing arg ument that C.W . had no re ason to lie bec ause the alleg ations C.W

. was making wer e embar rassing , espec ially to a heter osexual male with a g irlfriend. Moreove r, the Dallas jury ’s g uilty verdic t was not a finding t h at ap p l i ca n t co m mitted the Houston offe nse, and th e j u ry in the prese nt case was g iven limit ing instructions reg arding both extr an eo u s o ff

enses and prior convictions. I n that reg ard, the jury was instructed that extraneous offe nses could be considere d for only limit ed purposes, an d wh i l e the instruction reg arding prior convictions was not a model of clar ity , the instruction expli citly provided that a p rior conviction could not be conside red a s evidenc e of g uilt. And as we have explained in connec tion with the second issue, contending that applicant had

never molested C.W

. was, in many way s, much m ore difficult than m ere ly contending that he didBRATCHER — 36

not molest C.W

. duri n g t he 1991 Houston trip. That evidenc e from the Dallas trial may have produce d a (m ar g inal) trade -off betwee n applicant’ s defe nsive theories in his Houston trial—marg inally boosting the Housto n -spec ific theory while marg inally damag ing the g ener al d enial-of -molestation theory

—does not establish a rea sonable probability that he would not hav e been c onvicted. We conclude tha t the t hree filed-a nd-set grounds are without merit. Concluding tha t none of applica nt’s other g rounds ar e mer itorious, we deny relief

.

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