          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

        M EYERS, J., delivered the opinion of the Court in which K ELLER, P.J., and
P RICE, W OMACK, J OHNSON, K EASLER, H ERVEY, and C OCHRAN, JJ., joined. A LCALA,
J., did not participate.

                                      OPINION

       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
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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.
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       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
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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
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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.



       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.
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         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
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$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.
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       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
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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. T EX. C ODE C RIM. P ROC. 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.” T EX. R.

E VID. 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. T EX. R.

E VID. 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
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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.
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       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




       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).
                                                                              Rogers - Page 12

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
                                                                           Rogers - Page 13

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
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