                                 COURT OF APPEALS FOR THE
                            FIRST DISTRICT OF TEXAS AT HOUSTON

                                  ORDER REQUESTING BRIEFING

Appellate case name:      Javia Sinquize Johnson v. The State of Texas

Appellate case number:    01-14-00185-CR

Trial court case number: 12-CR-1447

Trial court:              56th District Court of Galveston County

        Appellant, Javia Sinquize Johnson, was charged by indictment with intentional injury to a
child for injuries sustained by her daughter, C.N. See TEX. PENAL CODE ANN. § 22.04(a)(1), (e)
(Vernon Supp. 2014). Appellant pleaded not guilty. The jury found her guilty of the lesser-
included offense of criminal negligence injury to a child. See id. § 22.04(a)(1), (g). The jury
assessed punishment at two years’ confinement. Appellant has filed a brief raising the following
issues: the trial court abused its discretion by allowing the State (1) to impeach a witness with a
portion of a prior recorded statement and (2) to question a witness about an alleged prior
extraneous offense by Appellant without proper notice. The State filed a responding brief.
       This Court has determined the following from the record:
              The contents of the conversation between Appellant’s son, J.J., and C. McCarty
               (wherein J.J. describes seeing Appellant causing C.N.’s injuries) was admitted
               into evidence by J.J.’s examination and by video;
              The State sought to introduce the contents of this conversation only for
               impeachment purposes;
              While Appellant’s trial counsel objected to the introduction of the evidence, the
               attorney did not seek a limiting instruction regarding this evidence upon its
               admission;
              No other evidence in the record links the injuries sustained by C.N. to any actions
               taken by Appellant; and
              An ineffective-assistance-of-counsel claim has not been raised in a motion for
               new trial or on appeal.
       This Court has determined the following law to be relevant:
              “It is well established that even properly admitted impeaching testimony cannot
               be used as primary evidence.” Wall v. State, 417 S.W.2d 59, 62 (Tex. Crim. App.
               1967); accord Arrick v. State, 107 S.W.3d 710, 722 (Tex. App.—Austin 2003,
               pet. ref’d) (“In the absence of an applicable hearsay exception, a witness’s prior
               inconsistent statement may be used to impeach the witness’s credibility but may
               not be used as primary evidence of guilt.”);
              “Once evidence is admitted without a proper limiting instruction, it becomes part
               of the general evidence in the case and may be considered for all purposes.”
               Arana v. State, 1 S.W.3d 824, 829 (Tex. App.—Houston [14th Dist.] 1999, pet.
               ref’d); accord TEX. R. EVID. 105(a) (providing that evidence that is admissible in
               limited scope cannot be ground for complaint on appeal if limiting instruction is
               not requested);
              In the guilt-innocence phase of the trial, the State bears the burden of proving
               each element of the charged offense beyond a reasonable doubt. See In re
               Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073 (1970) (holding Due Process
               Clause of United States Constitution protects accused against conviction except
               upon proof beyond reasonable doubt of every fact necessary to constitute crime
               with which he is charged);
              To have a conviction reversed based on an ineffective-assistance-of-counsel
               claim, the record must establish that (1) counsel’s representation fell below an
               objective standard of reasonableness and (2) the deficient performance prejudiced
               the appellant. Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005)
               (citing Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052,
               2064, 2068 (1984));

              “[T]he record on direct appeal is in almost all cases inadequate to show that
               counsel’s conduct fell below an objectively reasonable standard of performance
               . . . .” Id. at 102;
              “But, when no reasonable trial strategy could justify the trial counsel’s conduct,
               counsel’s performance falls below an objective standard of reasonableness as a
               matter of law, regardless of whether the record adequately reflects the trial
               counsel’s subjective reasons for acting as she did.” Id. (citing Strickland, 466
               U.S. at 690, 104 S. Ct. at 2052);
              Unless restricted by statute, courts of appeals in criminal cases have jurisdiction
               to consider any error in a case and may review unassigned error. Pfeiffer v. State,
               363 S.W.3d 594, 599 (Tex. Crim. App. 2012); and
              Before reviewing unassigned error, courts of appeals usually “should first afford
               the parties an opportunity to brief the issue.” Id. at 599 n.16.
       Accordingly, this Court requests briefing on the issue of whether Appellant’s trial
counsel committed ineffective assistance of counsel by failing to request a limiting instruction on
the contents of the conversation between J.J. and McCarty. In their briefs, the parties may
address any or all of the following:
              Whether any other evidence in the record would support or defeat an ineffective-
               assistance-of-counsel claim;
              Whether the record establishes as a matter of law that no reasonable trial strategy
               could justify the trial counsel’s conduct;
              Whether Appellant has been prejudiced by his trial counsel’s failure to request a
               limiting instruction; and
              Whether any other applicable law defeats an ineffective-assistance-of-counsel
               claim or otherwise prevents its consideration on direct appeal.
The parties may also address any other matter that concerns the issues of ineffective assistance of
counsel or this Court’s consideration of unassigned error. No other issues may be raised, and
briefing of matters not requested will be struck.
        Any briefing on the issue must be filed on or before two weeks from the date of this
order. The briefs filed, if any, may not be longer than 15 pages without leave of court. If any
party wants to respond to a brief filed by the other party, any such response must be filed on or
before three weeks from the date of this order and may not be longer than 5 pages without leave
of court. If both parties intend to file a brief or reply brief pursuant to this order, the parties are
encouraged to jointly request any necessary continuances on deadlines set by this order.
         All rules of appellate procedure apply to the briefs filed pursuant to this order, including
the rules on what portions of a brief count towards the page limits, except that these briefs will
not count against the aggregate page or word limits placed upon the parties. See TEX. R. APP. P.
9.4 (identifying which portions of briefs count towards page and word limits and limiting parties
in civil case to aggregate 90-page limit or 27,000 word limit on their briefs).
       This case shall remain on the court’s submission docket.
       It is so ORDERED.

Judge’s signature: /s/ Laura C. Higley
                   Acting individually


Date: January 29, 2015
