Yzaguirre v. State

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

KELLER, Judge,

delivered the opinion of the Court, in which

McCORMICK, Presiding Judge, and MANSFIELD, PRICE, HOLLAND and WOMACK, Judges, joined.

Appellant was convicted of aggravated sexual assault of a child by anal intercourse. The indictment alleged that the offense occurred “on or about April 23,1995.” However, the State introduced no evidence of such conduct occurring on April 23, 1995. Instead, the State elicited testimony from the child that around the Thanksgiving holidays during the preceding year, “[appellant] put his penis in my rear,” and an affirmation that he remembered “other times last year when something like this happened.” Appellant’s trial attorney neither objected to the testimony nor asked for a limiting instruction.

On appeal, appellant contended that the incidents prior to April 23, 1995 were extraneous offenses and that his trial attorney’s failure to object to the evidence or réquest a limiting instruction constituted ineffective assistance of counsel. He alleged that counsel’s failures resulted in prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) because, had the evidence been excluded or a limiting instruction given, there would have been no substantive evidence to support the conviction. The Court of Appeals held that, while instances of sexual conduct between appellant and the victim prior to April 23, 1995 may have been admissible, the State was entitled to their admission only for limited purposes, and appellant would have been entitled to a limiting instruction upon request. The court further held that, by failing to request a limiting instruction, counsel allowed the evidence to be considered for all purposes. The court held that prejudice under Strickland was shown because a rational jury could not have convicted appellant without the complained-of evidence. Neither appellant nor the Court of Appeals provide any other reason for finding prejudice.

In Sledge v. State, 953 S.W.2d 253 (Tex.Crim.App.1997), we held that, when an indictment alleges that a crime occurred “on or about” a certain date, the State can rely upon an offense with a date other than the one specifically alleged so long as the date is anterior to the presentment of the indictment and within the statutory limitation period and the offense relied upon otherwise meets the description of the offense contained in the indictment. Id., 953 S.W.2d at 255-56. Moreover, such an offense can be relied upon even though the State may have originally labeled it as “extraneous.” Id. 953 S.W.2d at 256

This ease is governed by Sledge. In the absence of evidence that the offense occurred on April 23, 1995, the State was entitled to rely upon an instance of prior conduct occurring during the preceding year that otherwise met the description of the offense in the indictment. Hence, had counsel objected and asked for a limiting instruction, the trial court would have properly denied the objection and request as to at least one of the prior instances of conduct, and the jury would have had sufficient evidence upon which to convict the appellant. The burden of showing prejudice under Strickland is upon the appellant. Chambers v. State, 903 S.W.2d 21, 32 (Tex.Crim.App.1995). Because sufficient evidence upon which to convict appellant would have existed even absent the alleged ineffectiveness, and no other reason for finding prejudice is apparent, we find that appellant has failed to meet his burden.

The judgment of the Court of Appeals is reversed, and the trial court’s judgment is affirmed.

MEYERS, J., filed a concurring opinion in which BAIRD, J., joined.

OVERSTREET, J., filed a dissenting opinion.

. Nor did appellant articulate any other reason in his brief to the Court of Appeals.