









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NOs. AP-76,615 and AP-76,616


EX PARTE RONALD DAVID ROGERS, Applicant





ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
CAUSE NOs. 39154A HCI & 39155 HC1 IN THE 268TH DISTRICT COURT
FROM FORT BEND COUNTY



 Meyers, J., delivered the opinion of the Court in which Keller, P.J., and
Price, Womack, Johnson, Keasler, Hervey, and Cochran, JJ., joined. Alcala,
J., did not participate.

O P I N I O N

 
	Applicant pleaded guilty to aggravated assault with a deadly weapon and
attempted aggravated sexual assault. A jury assessed punishment of a total of seventy-five
years' confinement and $10,000 in fines. On appeal, the First Court of Appeals affirmed
Applicant's conviction. Rogers v. State, 305 S.W.3d 164 (Tex. App.--Houston [1st Dist.]
2009, no pet.).
	Applicant filed applications for writs of habeas corpus, alleging that his attorney
provided ineffective assistance of counsel at the punishment stage of trial. The convicting
court filed findings of fact and conclusions of law, recommending that we deny relief.
This Court filed and set the applications. We now grant relief and vacate Applicant's
sentences so that the trial court may conduct new punishment proceedings.
FACTS & PROCEDURAL HISTORY
	Applicant was convicted of aggravated assault with a deadly weapon and
attempted aggravated sexual assault. Wearing a white mask, he hid in the stall of a
women's restroom in an office building and attacked a woman, T.G., as she exited
another stall. He pinned her to a wall and held a knife to her throat. T.G. pushed
Applicant and began screaming. She ran out of the restroom, and other workers noticed
her upset state. Applicant tried to leave the building but was stopped after a struggle with
bystanders. When Applicant was apprehended, he was found carrying several items,
including nylon rope, duct tape, handcuffs, gloves, and a glass pipe. He pleaded guilty to
attempted sexual assault and aggravated assault with a deadly weapon.
	During the punishment phase, the jury heard evidence of a prior offenses
committed by Applicant. Eleven years earlier, Applicant hid in the restroom of an office
building, wearing a white stocking over his face. While holding a knife, he attacked a
woman, who escaped by grabbing Applicant by the face and pulling down. He took the
stocking off of his head and ran off. He was later apprehended, but his adjudication was
deferred. After deferred adjudication was revoked, he was sentenced to ten years'
imprisonment.
	The jury also heard evidence about an extraneous offense, the rape of a woman in
her second-floor apartment. During the punishment phase of trial, C.R. testified that she
heard something outside on her balcony and she saw a shadow. She called 911, but the
call did not go through. A man broke through the glass of her window and grabbed her.
The man covered her mouth and eyes and told her to be quiet or he would kill her. He
tossed her on her bed and taped her arms, legs, and eyes with duct tape. She stated that he
raped her and then poured a substance that smelled like bleach onto her genitalia, which
"burned so bad." He raped her again and poured more of the substance on her, which
"hurt even worse." As he left the apartment, the man told her that he was going to get
money from the credit card that he took from her purse.
	C.R. testified that she saw part of the man's face. She worked with a sketch artist
to make a composite sketch. Investigators in C.R.'s case, learning of Applicant's arrest,
noted the use of duct tape, Applicant's similar physical characteristics, and the proximity
of Applicant's home to C.R.'s home. C.R. identified Applicant in a lineup based on his
hair, profile, movement, and voice. She testified that there was something about him that
made her want to "throw up when I saw this man," and she "didn't have any doubt that
that was the person" who raped her.
	The jury was instructed that it could consider evidence of an extraneous crime or
bad act in assessing punishment, but only if the State showed beyond a reasonable doubt
that the extraneous crime or bad act was committed by Applicant or was one for which
the Applicant could have been held criminally responsible. The jury assessed punishment
totaling sixty years' confinement with a $5,000 fine for the aggravated assault, and fifteen
years' confinement with a $5,000 fine for the attempted aggravated assault.	
	At the time of the punishment hearing, Applicant was under indictment for the
crimes against C.R. The indictments were dismissed over a year later. Six months after
the indictments were dismissed, another individual was identified through CODIS (the
FBI's combined DNA index system) as the contributor of unidentified DNA found in the
rape kit. That person pleaded guilty to the aggravated sexual assault of C.R. and was
sentenced to twenty years in prison.
	Applicant filed applications for post-conviction writs of habeas corpus. The State
filed an answer and moved the convicting court to designate issues of fact to be resolved.
Applicant's trial counsel, an Assistant District Attorney, a District Attorney Investigator,
and a former Assistant District Attorney each filed an affidavits relevant to the resolution
of Applicant's ground for relief. The trial court found that all of the affidavits were
credible.
	Applicant asserted that trial counsel provided ineffective assistance of counsel at
his punishment trial by failing to adequately investigate the sexual assault of C.R.
Applicant was wearing an electronic monitor when C.R. was attacked. Applicant denied
involvement in the sexual assault and told his trial counsel to contact his parole officer to
confirm his whereabouts at the time that C.R. was attacked. In his affidavit, trial counsel
stated that he contacted the parole officer, but he did not remember the conversation and
he did not subpoena her. The monitoring records showed that Applicant was at his
residence from 8:48 p.m. until 7:03 a.m. C.R. was attacked around midnight at her
apartment, which was approximately five miles from Applicant's residence, indicating
that Applicant could not have assaulted C.R. (1) 
	Also at issue is whether trial counsel was deficient for not presenting evidence that
Applicant's DNA had been excluded from the rape kit. Trial counsel stated that, had he
known about the DNA results, he would have presented the evidence at trial and called an
individual from the testing company to testify. However, based on affidavits from
representatives of the State, the court found that Applicant's trial counsel was told that
DNA test results excluded Applicant, and the results were included in a supplemental
report from C.R.'s case. 
	The court found that trial counsel and the Assistant District Attorney had a heated
discussion about whether evidence of the extraneous offense should be introduced despite
the DNA exclusion. The State reasoned that Applicant could still be the perpetrator
because C.R. claimed that she had been assaulted by a foreign object, and the DNA
profile may have belonged to her boyfriend, who was not available for testing at the time. 
	The trial court found that counsel's performance was deficient in failing to
discover allegedly exonerating evidence about Applicant's whereabouts at the time that
C.R. was sexually assaulted. The court also found that counsel's performance was
deficient by failing to bring evidence that Applicant's DNA was excluded from the
sample taken from C.R.'s rape kit.
	The convicting court found that there was no reasonable probability that the jury
would have assessed a lesser punishment if the electronic monitor evidence or the DNA
exclusion evidence had been presented to the jury. During trial, Applicant's counsel's
stated strategy was to adduce testimony from C.R. that she never positively identified
Applicant as the person who sexually assaulted her. C.R. admitted that she never saw his
entire face and that other men in Harris County shared Applicant's body-frame type.
Counsel argued that C.R. did not identify Applicant because her identification was based
on his hair, stature, movement, and voice. He also elicited testimony from a detective who
said that there have been times in which the victim identifies the wrong person. In closing
arguments, counsel asked the jury to hold the State to the standard of beyond a reasonable
doubt. 
	The court also found that the State asked for life imprisonment and a $10,000 fine
for the aggravated assault and twenty years and a $10,000 fine for the attempted sexual
assault. Applicant's trial counsel asked the jury to consider "the lower end of 20 to 40
years." The jury assessed punishment for a total of seventy-five years' imprisonment and
$10,000 in fines. 
	The court made conclusions of law, determining that Applicant failed "to prove by
a preponderance of the evidence his sole ground for relief alleging ineffective assistance
of counsel based on an alleged failure to adequately investigate his electronic monitoring
records." The court also stated that he "was not provided ineffective assistance of counsel
in the failure to present evidence showing that DNA testing excluded Applicant as the
contributor of sperm in the C.R. case." The final recommendation to this Court was that
relief should be denied.
ANALYSIS
	To determine whether to grant habeas corpus relief for ineffective assistance of
counsel, an applicant must establish that: (1) trial counsel's performance was deficient;
and (2) there was a reasonable probability that the result of the proceedings would have
been different but for trial counsel's unprofessional performance. Strickland v.
Washington, 466 U.S. 668, 687-88, 694, 696 (1984). 
	Because there are "countless ways" to provide effective assistance, judicial
scrutiny of trial counsel's conduct must be highly deferential. Id. at 689. Given the
difficulty in evaluating trial counsel's performance, the defendant must overcome the
presumption that "the challenged action 'might be considered sound trial strategy.'" Id.
(quoting Michel v. Louisiana, 350 U.S. 91, 100-01 (1955)). Trial counsel's
ineffectiveness must be proved by a preponderance of the evidence. Id. 
	If the applicant proves deficient assistance, he must show that prejudice occurred
with a probability "sufficient to undermine confidence in the outcome." Thompson v.
State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) (quoting Hernandez v. State, 726
S.W.2d 53, 55 (Tex. Crim. App. 1986)). He must "prove that there is a reasonable
probability that, but for counsel's errors, the sentencing jury would have reached a more
favorable verdict." Ex parte Cash, 178 S.W.3d 816, 818 (Tex. Crim. App. 2005) (citing
Warden v. Visciotti, 537 U.S. 19, 22-23 (2002)). It is not enough to show that trial
counsel's errors had some conceivable effect on the outcome of the punishment assessed.
Strickland, 466 U.S. at 693. 
	As we have repeatedly held, this Court is not bound by the findings of the trial
court, but "we should follow them where they are supported by the record." Ex parte
Lemke, 13 S.W.3d 791, 796 (Tex. Crim. App. 2000). We cannot imagine a tactical reason
for not presenting evidence of the electronic monitoring report or the DNA exclusion.
The trial court's findings that counsel was deficient are supported by the record.
However, the determination that Applicant was not harmed by trial counsel's errors is not
supported by the record. Given the inflammatory and prejudicial nature of C.R.'s
testimony about the extraneous offense, we cannot agree with the recommendation of the
convicting court. 
Deficient Performance
	During the punishment phase, "evidence may be offered by the State and the
defendant as to any matter the court deems relevant to sentencing," including the
defendant's prior criminal record and any other evidence of an extraneous crime or bad
act. Tex. Code Crim. Proc. art. 37.07, § 3(a)(1). "Relevant evidence" is evidence tending
to "make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence." Tex. R.
Evid. 401. 
	Rule 401 is helpful in determining what evidence should be admissible under
Article 37.07, § 3(a), but the definition is not a perfect fit in the punishment phase.
Sunbury v. State, 88 S.W.3d 229, 234 (Tex. Crim. App. 2002) (citing Rogers v. State, 991
S.W.2d 263, 265 (Tex. Crim. App. 1999)). Relevance is a question of what is helpful to
the jury to determine the appropriate sentence for the particular defendant. Rogers, 991
S.W.2d at 265 (holding that prior convictions are relevant to the determination of the
appropriate sentence). However, evidence that is relevant may be excluded if the danger
of unfair prejudice substantially outweighs the probative value of the evidence. Tex. R.
Evid. 403. "'Unfair prejudice' refers to an 'undue tendency to suggest decision on an
improper basis, commonly, though not necessarily, an emotional one.'" Ex parte Lane,
303 S.W.3d at 715 (quoting Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993)).
	Here, there was no reasonable trial strategy for trial counsel not to object to the
testimony of C.R. Although Applicant did not address this in his writ of habeas corpus, it
is relevant to the determination of his case. In this case and the prior offense, Applicant
exhibited similar behavior, such as hiding in a restroom, wearing something covering his
face, and failing to restrain his victims. Evidence of the prior conviction was relevant to
help the jury assess the appropriate sentence.
	On the other hand, the attack on C.R. was quite different, and as counsel said in
closing argument, very ugly. The perpetrator forcibly entered a private residence,
threatened to kill his victim, taped her body, raped her, poured bleach on her, and then
attempted to steal money. Applicant did not engage in those sorts of actions during his
multiple public restroom attacks, calling into question the probative value of the evidence.
	Had counsel adequately investigated the sexual assault before trial, he would have
had stronger grounds to request that the prejudicial testimony be excluded. Furthermore,
C.R.'s testimony on the witness stand was likely particularly inflammatory to the jury.
Clearly the danger of unfair prejudice substantially outweighed the probative value of the
evidence. 
Punishment Phase Harm
	The determination of harm in the punishment context is difficult because of the
scope of evidence that is allowed under Article 37.07, but appellate courts may grant
relief where there is a reasonable probability that, but for trial counsel's errors, the
sentencing jury would have reached a more favorable verdict. See Ex parte Cash, 178
S.W.3d at 819. This Court has assessed harm under Strickland in the punishment phase in
two fairly recent cases. 
	In Ex parte Cash, we denied habeas corpus relief because we decided that there
was no reasonable probability that the applicant's punishment would have been different
but for the actions of his attorney. 178 S.W.3d at 818-19. The applicant's trial counsel
filed an unsworn motion for probation, stating that the applicant was not a convicted
felon. Id. at 817. Trial counsel requested a jury instruction on probation at the punishment
phase, which the trial court denied because the applicant had a juvenile-delinquency
adjudication, making him ineligible for parole. Id. (2) The basis of the applicant's
application for a writ of habeas corpus was that his trial counsel was ineffective because
he filed an unsworn motion for probation. Id. at 816. Because the jury sentenced the
applicant to forty years, making him ineligible for probation, (3) we held that the applicant
did not establish a reasonable probability that the outcome would have been different had
trial counsel filed a sworn motion. Id. at 818-19.
	On the other hand, in Ex parte Lane, we granted relief and ordered a new
punishment hearing because of trial counsel's failure to object to testimony during the
punishment stage. 303 S.W.3d 702, 719 (Tex. Crim. App. 2009). A DEA agent testified
about the general dangers and societal costs caused by methamphetamine. Id. We
determined that any probative value that the testimony had in assisting the jury in
determining the appropriate punishment was substantially outweighed by the danger of
unfair prejudice. Id. at 714-15. The applicant was convicted of possession of
methamphetamine and received a life sentence, which is the maximum sentence available
for the offense. Id. at 706, 719. She argued that the facts of the case did not warrant a life
sentence, but the trial court disagreed and found that the evidence against the applicant
was overwhelming. Id. at 719. The trial court recommended that we deny relief. Id. at
706. Based on the errors of trial counsel, we held that the applicant demonstrated that
there was a reasonable probability that the outcome of the punishment stage would have
differed had counsel's performance not been deficient. Id. at 719-20.
	The effects of trial counsel's deficiencies here are more in line with the facts of Ex
parte Lane than Ex parte Cash. As in Ex parte Lane, it is apparent that the testimony of
C.R. was highly prejudicial and should have been objected to by trial counsel. On the
other hand, the instant case differs from Ex parte Lane in that Lane was given the
maximum sentence for her crime, while Applicant was given only the high end of
available punishment. 	
	The reasoning of Ex parte Cash is less relevant because the applicant was not
harmed by his counsel's deficiencies. Although probation was not an option given to the
jury, the jurors sentenced the applicant to thirty years more than the maximum time
allowed before probation can be given. Unlike that case, here, it would not be "pure
conjecture and speculation" to find that the deficiencies of trial counsel influenced the
jury when it assessed Applicant thirty-five years more than the upper-end of punishment
requested by defense counsel. Ex parte Cash, 178 S.W.3d at 818. 
	Here, counsel failed to adequately investigate Applicant's whereabouts during the
attack, and apparently he was aware that Applicant had been excluded by DNA. Had he
presented this evidence, the probative value of her testimony may not have been
substantially outweighed by undue prejudice. There is a reasonable probability that the
jury would have had reasonable doubt that Applicant committed the extraneous offense.
	Given the emotional testimony by C.R. and the fact that counsel did not present
evidence of Applicant's location or DNA exclusion, we find Applicant was prejudiced by
the actions of his trial counsel. CONCLUSION
	Applicant met his burden in satisfying the second prong of the Strickland test. The
probability of prejudice here is sufficient to undermine our confidence in the outcome of
the punishment phase. Because there is a reasonable probability that the punishment
assessed would have been different had his trial counsel's performance not been deficient,
we grant relief. We vacate Applicant's sentences so that the trial court may conduct new
punishment proceedings.


								Meyers, J.

Filed: June 27, 2012
Publish
1.  Police officers searched Applicant's residence eighteen days after C.R. was sexually
assaulted, and Applicant's electronic monitor was found in several pieces. The record does not
develop the issue further. However, the monitoring records indicated movement before and after
the attack, suggesting that Applicant was in his home, wearing the monitor, at the time that C.R.
was assaulted.
2.  However, the juvenile-delinquency adjudication is a final felony conviction only for
habitual-offender sentencing purposes and did not apply in this case. Id. at n.4.
3.  See Tex. Crim. Proc. art. 42.12, § 4(d)(1) (a defendant is not eligible for community
supervision (probation) if the defendant is sentenced to more than ten years' imprisonment).
