                                                                                              ACCEPTED
                                                                                          09-16-00306-CR
                                                                               NINTH COURT OF APPEALS
                                                                                      BEAUMONT, TEXAS
                                                                                      12/10/2017 12:02 PM
                                                                                   CAROL ANNE HARLEY
                                                                                                   CLERK


                              NO. 09-16-00306-CR

                                                                     FILED IN
                                  ⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯                 9th COURT OF APPEALS
                                                                  BEAUMONT, TEXAS
                                     In the                   12/11/2017 8:02:00 AM
                               Court of Appeals                 CAROL ANNE HARLEY
                                                                       Clerk
                                    For The
                             Ninth District of Texas
                                  At Beaumont
                                                                    RECEIVED IN
                                  ⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯                 9th COURT OF APPEALS
                                                                  BEAUMONT, TEXAS
                                                              12/11/2017 8:01:00 AM
                              No. 16-04-04919-CR
                                                                CAROL ANNE HARLEY
                            In the 221st District Court                Clerk
                          Of Montgomery County, Texas

                                  ⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯
                             DELL IVAN GODKIN
                                  Appellant

                                        V.

                           THE STATE OF TEXAS
                                 Appellee

                                   ⎯⎯⎯⎯♦⎯⎯⎯⎯

                         APPELLANT’S MOTION
                        FOR REHEARING EN BANC

                                   ⎯⎯⎯⎯♦⎯⎯⎯⎯
TO THE HONORABLE COURT OF APPEALS:

      COMES NOW THE APPELLANT, BY THE THROUGH his attorney of

record, and respectfully offers his Motion for Rehearing En Banc pursuant to

T.R.A.P. 49.7 from this Court’s opinion in the above styled and numbered cause



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delivered on November 8, 2017 affirming the judgement and conviction.


                        SOLE GROUND FOR REVIEW

             THE COURT OF APPEALS ERRED BY RULING THAT
             APPELLANT DID NOT SATISFY THE SECOND PRONG
             OF STRICKLAND.


                      ARGUMENT AND AUTHORITIES

      Appellant Dell Ivan Godkin was found guilty and sentenced to life in prison

for aggravated sexual assault of a child. In this Court’s November 8, 2017 opinion,

the Court found that Appellant could not satisfy the second prong of Strickland,

holding “Appellant has not demonstrated that, but for counsel’s alleged ineffective

assistance in bringing up the extraneous offense evidence during voir dire and

opening statement, the results of the trial would have been different.” Godkin v.

State, NO. 09-16-00306 at 12 ((Tex.App. – Beaumont, November 8, 2017).

      During voir dire and opening statement, Appellant’s attorneys discussed an

extraneous sexual assault of a child, allegedly committed by the Appellant, in front

of the jury. (RR II 130-151 & III 10-12). The State never offered or introduced

evidence of this extraneous offense.

      This case provides for a very unique set of circumstances for this Court to

consider in determining if the second prong of Strickland has been met. First, we

have evidence from two jury panel members, after hearing Appellant’s trial



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counsel inform the jury panel that Appellant committed another “crime, a wrong

act, evidence regarding Dell Godkin committed other crimes or wrongs or acts

against a child who is not the alleged victim in this case”, state that they would

now be biased against Appellant. (emphasis mine) (RR II 130-151). One panel

member stating it is impossible not to be biased and the other stating that he would

be inherently biased and that everyone would be inherently biased. (RR II 142,

172). We rarely find a record that definitively demonstrates the devastating impact

the introduction of an extraneous offense has on a jury’s impartiality. And that

extraneous offense was introduced by Appellant’s own attorney’s after filing a

motion in limine and having the court exclude that very evidence.

      Secondly, the jury found, by their verdict, that the complaining witness was

not credible. The jury was charged with continuous sexual assault of a child and

the lesser included offense of aggravated sexual assault of a child. The jury

returned a verdict for the lesser included offense of aggravated sexual assault of a

child. The only difference being whether the abuse continued for more than thirty

(30) days, as the complaining witness stated it did (RR VI 160). By returning a

verdict for the lesser included offense and not continuous, the jury directly found

that the complaining witness was not credible.

      Third, trial counsel admitted they made mistakes. (SRR I 49). They further

admitted that the extraneous offense bolstered the credibility of the complaining


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witness. (SRR II 29, 34, 37, 40). Sexual assault cases are frequently he said, she

said trials in which the jury must reach a unanimous verdict based solely upon two

diametrically different versions of an event, unaided by any physical, scientific, or

other corroborative evidence." See Hammer v. State, 296 S.W.3d 555, 561-62

(Tex.Crim.App.2009). Trials involving sexual assault may raise particular

evidentiary and constitutional concerns because the credibility of the complainant

is central (id).

       In closing, numerous courts have held that trial counsel can be ineffective

for simply not objecting to extraneous offenses or opening the door to an

extraneous offense. Defense counsel's repeated failure to object to the admission

of multiple extraneous offenses or " bad acts" has been held to deprive a defendant

of a fair trial and to constitute ineffective assistance. See, e.g., Cude v. State, 588

S.W.2d 895, 897-98 (Tex.Crim.App.1979) (in armed robbery trial defense

counsel's repeated failure to object to inadmissible extraneous offense evidence of

the defendant's prior armed robberies, theft of a car, possession of drugs and a

sawed-off shotgun, and prior incarceration was ineffective assistance and denied

defendant a fair trial under pre- Strickland standard); Doles v. State, 786 S.W.2d

741, 746 (Tex.App.-Tyler 1989, no pet.) (trial counsel's reoccurring failure to make

proper objections to evidence of extraneous sexual offenses committed by the

appellant against his stepchildren, other than the victim, which were admitted


                                           4
during the guilt-innocence phase, represents professionally unreasonable errors,

adversely affecting appellant's defense"); Jackson v. State, 857 S.W.2d 678, 683

(Tex.App.-Houston [14th Dist.] 1993, pet. ref'd) (counsel rendered ineffective

assistance by, among other conduct, permitting evidence of extraneous offenses of

delivery of narcotics and possession of weapons to be admitted with no objection).


                                      PRAYER

      WHEREFORE, for the reasons set forth above, Appellant respectfully seeks

review by the Court en banc, hold that Appellant’s trial counsel were ineffective,

and remand to the trial court for a new trial.



                                                 /s/ Shawn McDonald
                                                 Shawn McDonald
                                                 Attorney for Appellant
                                                 77 Sugar Creek Center Blvd. Ste.230
                                                 Sugar Land, TX 77478
                                                 Smcdonald2421@gmail.com
                                                 PH 713 228 25253
                                                 FAX 281 809 7133
                                                 State Bar Number 24029715




                     CERTIFICERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was served via efile to
Bill Delmore, Assistant District Attorney, on the 10th day of December 2017.

                                                 /s/ Shawn McDonald


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                      CERTIFICATE OF COMPLIANCE

1.     The brief complies with the type-volume limitation imposed by Rule 9.4(i)
of the Texas Rules of Appellate Procedure because the brief contains 812 words
excluding the signature, proof of service, certification, certificate of compliance,
and appendix.

2.     The brief complies with the typeface and the type style requirements of Rule
9.4(e) of the Texas Rules of Appellate Procedure because this brief has been
prepared in a proportionally spaced typeface using Word in 14-point font and
Times New Roman type style.

                                              /s/ Shawn McDonald




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