                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-11-00189-CR


Donald David Hetherington                 §   From the 297th District Court

                                          §   of Tarrant County (1140609D)

v.                                        §   January 17, 2013

                                          §   Opinion by Justice Gabriel

The State of Texas                        §   (nfp)

                                     JUDGMENT

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

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

the trial court is affirmed.

                                       SECOND DISTRICT COURT OF APPEALS



                                       By_________________________________
                                         Justice Lee Gabriel
                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-11-00189-CR


DONALD DAVID HETHERINGTON                                             APPELLANT

                                          V.

THE STATE OF TEXAS                                                          STATE


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          FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

                                       ----------

                          MEMORANDUM OPINION1

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                                    Introduction

      Appellant Donald David Hetherington appeals his conviction for sexual

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

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

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



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


                                           2
                   Background Facts and Procedural History

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

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

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

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

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

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

arrested and tried for sexual assault of a child.

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

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

witness was twelve years old.

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

confinement. The trial court sentenced Appellant accordingly.

                          Extraneous-Offense Evidence

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

prior misconduct evidence during guilt-innocence and that the erroneous

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

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

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

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

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




                                          3
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on

reh’g).

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

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

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

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

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

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

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

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

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

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

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

input with the following:

            [DEFENSE COUNSEL]: Thank you. And I think a lot of what
      Mr. [A] was talking about was motive to, maybe, tell an untruth.

            Mr. [B], have you ever seen those billboards going down the
      road that say[ ]: Noteboom, we sue sex offenders?

             VENIREPERSON [B]: Yes.

            [DEFENSE COUNSEL]: Okay. Now, what kind of case would
      that be if you were suing somebody or you were accused of in a civil
      case? What kind of burden going back?

             VENIREPERSON [B]: The burden would be––

             [DEFENSE COUNSEL]: Preponderance of the evidence.


                                         4
            VENIREPERSON [B]: Exactly.

             [DEFENSE COUNSEL]: That it probably happened. Okay?
      But if you’re able to show that it probably happened, in a civil case,
      you get that payoff that Mr. [A] was talking about. Wouldn’t you
      agree?

            VENIREPERSON [A]: Yes.

            [DEFENSE COUNSEL]: Okay. So could that be a reason,
      when judging someone’s credibility, that you might want to be a little
      concerned about what they’re telling you like Mr. [A] was talking
      about?

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

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

      Q (By [DEFENSE COUNSEL]) [Mom], after––after this alleged
      incident, did you ever contact a law firm regarding filing a civil suit
      regarding this incident?

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

      Q     Okay. Did anyone in your family ever contact a law firm
      regarding filing a civil suit?

      A     No.

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

purpose in pursuing this line of questioning:

              [PROSECUTOR]: Your Honor, I just wanted to make it clear
      on the record. Is there some specific matter that they’re admitting? I
      want to see if I have an objection, and I don’t know what their theory
      is so I don’t know whether I have one.

            [DEFENSE COUNSEL]: Well, obviously, Your Honor, if there
      is any other motivation to bring this case, then I think––you know,
      monetary issues or pecuniary interests, I think that’s definitely a
      theory that we should be able to explore.


                                         5
     [PROSECUTOR]: Is the Defense suggesting that it would be
admissible under the theory of the motive here being––

        [DEFENSE COUNSEL]: Bias or motive to testify.

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

       [DEFENSE COUNSEL]: I mean, if you want to phrase it like
that, that’s fine. I think I’ve––

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

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

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

Appellant continued Mom’s cross-examination as follows:

Q     (By [DEFENSE COUNSEL]) Okay. [Mom], you understand
that you are under oath and that you––you swore an oath to the
Court to tell the truth––

A       That’s correct.

.....

Q       Okay. Are you familiar with the Noteboom Firm?

A       Yes, I am.

Q     Okay. And is it your testimony today that you, or anyone
connected to you, has never contacted the Noteboom Firm
regarding this particular incident?

A       No. I disagree with that.

Q       You disagree with what?

A     That somebody connected to me did, but that was not the
question the first time you asked me.


                                    6
Q     Okay. Did someone connected to you or your family contact
the Noteboom Firm on your behalf?

A       Yes.

Q       Okay. Who was that?

A       Thomas Stephens.

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

A       He’s a lawyer out of Houston.

Q     Okay. How did you––did you contact––did you reach out to
Mr. Stephens?

A       Yes, because he was a friend.

.....

Q      Okay. Did you––did you contact him regarding the possibility
of bringing a civil suit?

A       No, I did not.

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

A       Real estate.

.....

Q       Did you believe that you possibly needed legal representation
in this matter?

A       Yes.

Q       Okay. Why would that be?

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


                                   7
     Q     Okay. And did you and Mr. Stephens––did you––did you
     even discuss the possibility of filing a civil suit against [Appellant]?

     A     No.

     Q     You never discussed it?

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

     Q     Okay. Did he ever discuss it with you?

     A     No.

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

     A     Because he told me that there was lawyers here who dealt
     with this kind of situation and that Noteboom was one of a well-
     renowned law office here in our town.

     Q     Okay. So did he––so how many conversations did you have
     with Mr. Stephens regarding this?

     A     I don’t know how many. It wasn’t many. I mean, I talked to
     him a couple of times.

     Q     And so I’m just going to assume the second time that you
     guys talked he told you that he contacted the Noteboom Firm on
     your behalf?

     A     With them, yes.

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

     A       We really didn’t discuss anything, other than him––or, I’m
     sorry, that he could fly in and, you know, stand by my side and do
     the talking for me because I’m illiterate to what lawyers do and what
     y’all talk about and––

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

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


                                        8
carried large amounts of cash and wore lots of jewelry, and whether she had had

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

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

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

a litigious witness.”

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

reasonable disagreement for the trial court to conclude that evidence about

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

character conformity because counsel’s questions exploring a civil lawsuit

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

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

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

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

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

      Having held that the extraneous-offense evidence was admissible under

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

conclude that its probative value was not substantially outweighed by the

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

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

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

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

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


                                         9
have given it undue weight, and whether its presentation consumed an inordinate

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

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

      Logically, evidence that Appellant had previously molested a teenage boy

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

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

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

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

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

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

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

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

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

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

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

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

in favor of admissibility.

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

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

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

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




                                          10
      But we do not think the evidence had any tendency to confuse or distract

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

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

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

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

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

favor of admissibility.

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

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

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

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

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

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

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

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

remainder of Appellant’s first point.

                                Limiting Instruction

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

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

extraneous-offense evidence to its proper scope.




                                         11
      The State responds that because the evidence was initially admitted

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

instruction was forfeited, and Appellant was not harmed.

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

      [w]hen evidence which is admissible . . . for one purpose but not
      admissible . . . for another purpose is admitted, the court, upon
      request, shall restrict the evidence to its proper scope and instruct
      the jury accordingly; but, in the absence of such request the court’s
      action in admitting such evidence without limitation shall not be a
      ground for complaint on appeal.

Tex. R. Evid. 105(a).

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

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

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

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

extraneous offense was admitted but waited until immediately after the witness

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

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

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

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

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

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

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




                                        12
       Our review of the record shows that Appellant requested a limiting

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

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

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

limiting instruction.

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

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

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

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

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

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

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

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

becomes whether Appellant suffered egregious harm.

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

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

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

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

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

jury charge caused Appellant egregious harm.

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

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


                                         13
to an unpublished case from the Austin Court of Appeals that examined the same

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

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

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

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

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

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

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

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

consideration of the evidence for any reason other than those specifically

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

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

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

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

appellant any harm, let alone egregious harm. Id.

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

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

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

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

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

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

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


                                         14
fabrication, the jury was not allowed to consider the evidence for that purpose.

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

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

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

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

point.

                                     Trial Strategy

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

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

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

assistance of counsel, the appellant must show by a preponderance of the

evidence that his counsel’s representation fell below the standard of prevailing

professional norms and that there is a reasonable probability that, but for

counsel’s deficiency, the result of the trial would have been different. Strickland

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

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

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

deficient performance by counsel and prejudice suffered by the defendant.

Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). An ineffective-

assistance claim must be “firmly founded in the record” and “the record must

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

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


                                            15
      In evaluating the effectiveness of counsel under the deficient-performance

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

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

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

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

688–89, 104 S. Ct. at 2065.      Review of counsel’s representation is highly

deferential, and the reviewing court indulges a strong presumption that counsel’s

conduct fell within a wide range of reasonable representation. Salinas v. State,

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

(Tex. Crim. App. 2001).

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

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

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

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

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

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

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

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

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

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

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

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


                                       16
      We note that although Appellant filed a motion for new trial, in it he did not

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

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

court conducted a hearing on it.

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

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

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

outrageous and one that no reasonably professional attorney would have

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

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

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

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

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

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

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

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

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

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

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




                                           17
                               Conclusion

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

judgment of the trial court.



                                             LEE GABRIEL
                                             JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: January 17, 2013




                                   18
