Opinion
No. AP-75,526
Delivered: October 31, 2007. DO NOT PUBLISH.
On Application for A Writ of Habeas Corpus from Nueces County.
HOLCOMB, J., delivered the opinion for the Court, in which MEYERS, PRICE, WOMACK, JOHNSON, and COCHRAN, JJ., joined. KELLER, P.J., KEASLER, HERVEY, JJ., dissented without opinion.
OPINION
In this case, we must determine whether applicant was denied her Sixth Amendment right to the effective assistance of counsel at the guilt stage. We filed and set this case to clarify the manner in which we assess counsel's errors in determining prejudice under Strickland v. Washington, 466. U.S. 668 (1984). We hold, as we have indicated in the past, that such errors should be considered cumulatively.
Background
On October 17, 1997, applicant Evangelica Aguilar and her stepmother, Nilda Aguilar, were jointly indicted in Nueces County for the murder of Juan Aguilar, applicant's father and Nilda's husband. Both defendants filed pre-trial motions, which they urged throughout the trial, for a severance of their cases, claiming that the defense of each was prejudicial to that of the other. The trial court denied the motions. The two defendants were tried together, although the jury was to consider the guilt of each separately from that of the other. The evidence at trial adduced the following facts pertinent to the issues before us. On the night of March 10 or in the early morning hours of March 11, 1995, Juan Aguilar was shot to death with a high-velocity rifle while he was apparently asleep in his bed. He was a Corpus Christi police officer, who had two children from his first marriage: a son, Gabriel, and a daughter, applicant. That first marriage had ended in divorce, whereupon the children moved back and forth between their parents until Juan married Nilda in 1981. Applicant moved away when she turned sixteen, but Gabriel continued to live with Juan and Nilda until he joined the United States Navy in 1993 and had to be away from home for long periods of time. Thus, Juan and Nilda were living by themselves when Juan was shot to death. The testimony at trial showed that Juan was last seen alive by an independent witness on the afternoon of March 10 between 4:30 and 5:00 p.m. Thus, the two defendants were the only witnesses to what happened from then until Juan's body was found at approximately 10:00 a.m. the following morning. Nilda's and applicant's statements, made on March 11, essentially corroborated each other, stating that: (1) applicant had called in the afternoon of March 10 to speak to Nilda, but Juan had answered the telephone; (2) Juan and applicant then had an argument about some money that Nilda had lent applicant; (3) Juan told applicant not to call or come to his house anymore; (4) Nilda came on the line, and Juan told her to hang up, which she did; (5) applicant then drove over to Juan and Nilda's house; (6) Nilda did not let her in, saying that Juan had told her not to do so; (7) Nilda told applicant to meet her shortly thereafter at a nearby H.E.B. grocery store, where they met a few minutes later and talked briefly; (8) applicant asked Nilda to meet her later at the Sunrise Mall; (9) the two agreed to meet, and did meet, each other there at 8:00 p.m. that evening; (10) the two women stayed at the mall, talking, until the mall closed; (11) they then went to Cole Park, where they talked some more; (12) the two then returned to applicant's house, where Nilda spent the night; (13) Nilda went back to her home some time between 9:00 and 9:30 a.m. the following morning; and (14) she found Juan's body in their bedroom. On May 12, 1995, Nilda was charged with Juan's murder. On October 3, 1995, while Nilda was awaiting trial, applicant gave a second statement that: (1) Nilda had a rifle when she met applicant on March 10, 1995, the night of the murder; (2) she told applicant that she had to get that rifle out of the house to keep Juan from hurting himself; (3) she asked applicant to follow her as they left Cole Park in their separate cars; (4) she drove for a long time until they arrived at a bridge; and (5) she brought the rifle out of the backseat of her car and threw it off the bridge and into the water below. Applicant took the police to that bridge, where they recovered a rifle that appeared to be the suspected murder weapon. The record indicates that the focus of the police investigation was exclusively on Nilda until applicant took the police to the site of the suspected murder weapon. Thereafter, on October 17, 1996, both applicant and Nilda were jointly charged with Juan's murder. Their trial began on June 4, 1997, and jury deliberations began on June 11. On June 12, the jury sent the trial court a note indicating that it had reached a unanimous verdict on Nilda but that it was deadlocked on applicant. The trial court gave the jury an Allen charge and sent it back to continue its deliberations. A few hours later, the jury reached a unanimous verdict on applicant, finding her, too, guilty of murder. The punishment phase of the trial began on June 16. On June 17, the jury began its deliberations and reached a verdict on Nilda the same day but again needed more time to deliberate on applicant's case. After a discussion with the parties, the trial court decided to receive the verdict on Nilda. The following day, the jury reached a verdict on applicant. In each case, it assessed punishment at imprisonment for 25 years. The court of appeals affirmed applicant's conviction. On December 12, 2005, applicant filed the present application for habeas corpus relief, alleging ineffective assistance of counsel at the guilt-innocence stage because her trial counsel: (1) opened the door to evidence of applicant's prior extraneous misconduct; (2) elicited testimony on applicant's prior use of cocaine; (3) failed to object to the prosecutor's eliciting testimony that applicant had killed one of her stepmother's rabbits; (4) failed to object to testimony that applicant, during her youth, was dishonest and lied when it benefitted her; (5) failed to object to the improper argument of Nilda's counsel that he did not cross-examine applicant because "it was so obvious that she was a liar"; and (6) failed to request limiting instructions to the evidence of applicant's alleged extraneous acts of misconduct. We remanded the case to the trial court for a live evidentiary hearing. On May 31, 2006, the habeas court conducted an evidentiary hearing and recommended that relief be denied.The Standard for Review
We find the test for reviewing claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). As we have previously noted, Strickland does not provide a "mechanistic formula" for such review. Ex Parte Welborn, 785 S.W.2d 391, 393 (Tex.Crim.App. 1990). Rather, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. (quoting Strickland, 466 U.S. at 686). Scrutiny of counsel's performance must be "highly deferential." Strickland, 466 U.S. at 689. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. Thus, we "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. But the defendant can rebut the presumption by showing that (1) "counsel's performance was deficient" and (2) "the deficient performance prejudiced the defense." Id. at 687. The Strickland Court did not give any specific guidelines for determining deficient performance. The Court simply advised that counsel is expected to provide "reasonably effective assistance," id., and that such "reasonableness" should be measured under "prevailing professional norms," id. at 688. Essentially, counsel is obliged to fulfill "certain basic duties," including "a duty to bear such skill and knowledge as will render the trial a reliable adversarial testing process." Id. If deficient performance is found, Strickland provides greater guidance for determining whether such deficiency prejudiced the defense. Noting that "the appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution and in the test for materiality of testimony made unavailable to the defense by Government deportation of a witness," Strickland requires the defendant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," and defines "[a] reasonable probability [as] a probability sufficient to undermine confidence in the outcome." Id. at 694. Applicant argues that the habeas court erred in concluding that she failed to show prejudice because it considered each allegation of counsel's deficient performance separately. Applicant contends that Strickland requires counsel's errors to be considered cumulatively. We agree and have indicated as much in the past. For example, in Ex Parte Welborn, supra, we stated that "[a]n applicant must show omissions or other mistakes made by counsel that amount to professional errors of a magnitude sufficient to raise a reasonable probability that the outcome of the trial would have been different but for the errors." 785 S.W.2d at 393 (emphasis added). Indeed, our disposition of that case was grounded on this premise when we held that "[a]lthough, no one instance in the present case standing alone is sufficient proof of ineffective assistance of counsel, counsel's performance taken as a whole does compel such a holding." Id. at 396. The language in Strickland supports our position. The Strickland Court's discussion was divided between the two prongs of the test: deficient performance and prejudice. In discussing the first, the Court largely used collective nouns, such as "performance" or "conduct," thus not clearly indicating whether it was advising courts to focus on errors individually or cumulatively. Its discussion of the prejudice prong, however, is replete with the use of the plural tense, referring to counsel's alleged "errors" and thus indicating a cumulative, not individual, consideration of such errors. See id. at 693-96. The State in this case agrees with applicant that counsel's errors should be considered cumulatively for purposes of determining counsel's effectiveness. Its only contention is that counsel's alleged errors should not be considered either in determining deficient performance or prejudice because counsel followed a reasonable trial strategy.Deficient Performance
We note that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696. The State admitted to the jury that its case against both applicant and Nilda was based purely on circumstantial evidence. Indeed, there was no physical evidence such as fingerprints, blood, etc., to connect either defendant to the crime. Rather, the State focused on the possible motive each defendant might have had to kill the victim. The State presented ample evidence showing Nilda's strained relationship with Juan and how much she stood to gain from his death, but it produced only the following three pieces of evidence against applicant. First, the State tried to show that applicant also had a strained relationship with Juan by presenting the testimony of two off-duty police officers working as a club's security officers about a remark that applicant made to them almost six months before Juan's death. According to this testimony: (1) the incident took place in September 1994; (2) the officers were called in to remove applicant from the premises, because she was creating "a small disturbance" (showing off some karate moves to her friends inside); (3) she was "intoxicated" but "not drunk" and could therefore not be arrested; (4) after they brought her out of the club, she used a pay-phone to call someone; (5) she then told them that "she hated cops and that she hated [Juan]" and that "she wished he was dead"; and (6) she left the premises. On cross-examination, the officers admitted that (1) they never filed a report about the incident; (2) they did not mention the incident to their lieutenant until "several days" after Juan's death; (3) it was not until January 16, 1996 (about three months after applicant took the police to the rifle, ten months after Juan's death and some sixteen months after the incident itself) that they gave a statement about the incident; and (4) they could not explain why their lieutenant "waited so long" to take a statement from them. Second, the State tried to show applicant's possession of the suspected murder weapon by offering testimony that she had tried to sell a witness a high-powered rifle some time before Juan's death. However, this witness could not remember when this offer to sell a rifle occurred or anything about the weapon except that "it was a high-powered rifle." Thus, the State could not show either that the rifle applicant tried to sell was, in fact, the murder weapon or that it was still in her possession when Juan was killed. Third, the State offered evidence that applicant had taken the police to the suspected murder weapon. Since the first two pieces of evidence (applicant's remark at the club and her attempt to sell a high-powered rifle) were only remotely connected in time to the murder, this third piece of evidence was the most critical that the State presented against her, and it is primarily in light of this evidence that we consider the following allegations of error to determine whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. 1. Counsel opened the door to evidence of applicant's prior extraneous misconduct. Counsel for applicant and counsel for Nilda filed pre-trial motions in limine, asking the trial judge not to allow any party to mention their respective client's extraneous acts of misconduct, or other collateral matters, until he had ruled on the admissibility of such evidence outside the presence of the jury. The trial judge granted the motions. Thus, the jury had heard no evidence of applicant's extraneous acts of misconduct until co-counsel, during the State's case, asked applicant's brother, Gabriel, whether he gathered from family discussions that Juan was "not always proud of what [applicant] was doing." Nilda's counsel, on cross-examination, then asked Gabriel to tell the jury about "the kind of things" that applicant did which caused Juan to be not proud of her. Gabriel responded that she talked back to him and cursed in front of him and his friends. Nilda's counsel repeated Gabriel's answer, and asked him, "What else?" At that point, co-counsel asked to approach the bench and, outside the presence of the jury, objected that Nilda's counsel was going into extraneous misconduct and reminded the trial judge that this was "exactly what" he had told the parties not to do. The trial judge overruled the objection, stating that co-counsel had opened the door to such evidence. The trial judge, however, told Nilda's counsel to continue his cross-examination outside the presence of the jury to ensure the admissibility of the rest of the testimony. Nilda's counsel then elicited several instances of applicant's extraneous acts of misconduct. But when he asked Gabriel about applicant's use of drugs, Gabriel replied that he did not know anything about that. Nilda's counsel then promised the trial judge that he would not ask Gabriel about that in front of the jury. The trial judge allowed the rest of the testimony. When the jury was brought back, Nilda's counsel had Gabriel repeat that applicant talked back in front of Juan's friends. He also elicited the following facts: (1) applicant had different children from different fathers; (2) she had more than one child without being married to the man in question; (3) she worked as a topless dancer; and (4) she associated with people of whom Juan did not approve. Co-counsel did not object. Later, Nilda's counsel, in cross-examining the State's witness who testified that applicant had tried to sell him a high-powered rifle, elicited from him also that applicant worked at a topless bar at the time of the attempted sale. Counsel for applicant did not object this time either. It is impermissible to try a defendant as a person of bad character or a criminal generally. Templin v. State, 711 S.W.2d 30, 32 (Tex.Crim.App. 1986). See also Tex. R. Evid. 404(a) ("Evidence of a person's character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion."). Moreover, evidence of a criminal defendant's character is not admissible unless it is offered by the defendant himself or by the prosecution to rebut the same. Tex. R. Evid. 404(a)(1)(A). Since applicant had not yet testified, she had not made her character relevant when Gabriel testified for the State. Morever, even after she testified, only the prosecution — not the co-defendant's counsel — was entitled to attack her character to impeach her credibility. Id. Even then, however, Texas Rule of Evidence 608(b) prohibits the use of specific instances of misconduct, for which no criminal conviction has been had, for the purpose of attacking a witness's credibility. Thus, testimony that applicant was rude and cursed, had children out of wedlock by different men, worked as a topless dancer, and associated with unsavory persons, would have been inadmissible, over timely objection, even if the prosecution had tried to introduce such evidence. In fact, it was precisely because of the irrelevant and prejudicial nature of such testimony that the trial court had prohibited the introduction of such evidence until co-counsel opened the door to his own client's extraneous acts of misconduct. Co-counsel stated, in his affidavit and at the evidentiary hearing, that he did not think that he had opened the door to applicant's extraneous offenses, when he asked Gabriel about why Juan was not always proud of his daughter. But counsel should have pursued his objection to preserve error for the appellate courts to determine whether he had opened the door to such evidence. Neither lead counsel nor co-counsel did so, either when Nilda's counsel resumed his cross-examination of Gabriel after the trial judge's ruling, or when he asked the other witness about applicant's working at the bar when she had allegedly tried to sell the rifle to him. Co-counsel also asserted, in his affidavit and at the evidentiary hearing, that evidence pertaining to applicant's extraneous acts of misconduct would certainly have come in after she had testified. He admitted at the evidentiary hearing, however, that a defendant cannot generally be impeached with specific instances of immoral conduct under Texas Rule of Evidence 608(b). Nevertheless, he expected such evidence to be admitted after applicant testified, because he thought that it was relevant to her relationship with her father. When habeas counsel pointed out that he had opened the door to the very evidence that lead counsel had tried to exclude through the motion in limine, co-counsel stated that (1) both he and lead counsel had expected such evidence to come in, despite the fact that the motion had been granted; (2) lead counsel had filed the motion merely to control when and how this evidence came in; and (3) co-counsel's question to Gabriel (about why Juan was not proud of his daughter) was in fact designed to elicit some of this extraneous evidence, as a means of controlling the introduction of such evidence. There was no evidence at trial to show that applicant's allegedly talking back to her father, cursing, having children out of wedlock by different men, working as a topless dancer, and associating with persons Juan disapproved of, had anything to do with his murder. The fact that applicant's father "was not always proud" of what applicant was doing is not an "Open Sesame" to any and all of applicant's behavior of which her father might have disapproved. The State did not argue that applicant might have killed her father because he was not proud of her. Rather, it clearly stated that its theory was that Nilda had persuaded applicant, upon whom she exerted a great deal of influence, to kill Juan for her. In short, the record does not support co-counsel's explanations. Neither the State nor Nilda's counsel had argued or presented any evidence of applicant's extraneous acts of misconduct until co-counsel opened the door to such evidence. Even afterwards, only Nilda's counsel took advantage of the opening although, up to that point, he had been precluded from doing so both by the trial court and the Texas Rules of Evidence. In light of all this, we hold that co-counsel's performance in purportedly opening the door and failing to object to this improper testimony fell below the objective standard of reasonableness required by Strickland and was therefore deficient. 2. Counsel elicited testimony on applicant's prior use of cocaine. No evidence about applicant's drug use had been presented when she took the stand. Lead counsel brought it to the jury's attention, for the first time, when he elicited from applicant that she used to have a drug problem and had used cocaine daily until December 1994. The general rule is that an accused should be tried for the offense for which he is charged and not for some collateral crime or for being a criminal generally. See, e.g., Couret v. State, 792 S.W.2d 106, 107 (Tex.Crim.App. 1990). Extraneous matters are admissible only if they meet the extraneous-offense test: that the evidence be relevant to a material issue in the case and that the probative value of the evidence is not substantially outweighed by the prejudicial potential. Id. In Couret, for example, we reversed the judgment of the court of appeals because there was "no suggestion or indication that appellant burglarized the warehouse to obtain money or property to support a drug habit." Id. at 108. Similarly, there was no evidence in the present case to indicate that applicant's conduct relating to her father's murder was somehow related to her drug habit. In his affidavit, lead counsel admitted that he elicited evidence of applicant's cocaine use "because [he] felt confident the State and [Nilda's counsel] would go into this area," but he did not give a reason for such confidence. He stated at the evidentiary hearing that the State could have tried to introduce evidence of prior drug use in a non-drug offense under the following theory:I think the motive was to show that because of her drug habit there was some funds that, I think, her dad was holding for her and, you know, that would be one of the reasons why she was angry and upset with him was because he would not let her have the funds.Co-counsel had also stated, in his affidavit and at the evidentiary hearing, that evidence of applicant's prior drug use would have come in because "the State's theory was that applicant had killed her father over a dispute over" the funds that Juan had been holding for her, allegedly to prevent her from spending it all on her drug habit. Co-counsel admitted at the evidentiary hearing, however, that the State never offered "any evidence in their case in chief that [applicant] used drugs or that drugs were the motive for the murder" and that "[t]here was nothing about drugs in the State's case." In fact, he agreed that they "had gotten to the end of the trial with the defendant testifying and there was no evidence in front of the jury about her drug use or drugs being a motive for murder," until lead counsel brought up the subject of her prior drug use. As noted earlier, the State had stated its theory for the record, and this theory had nothing to do with applicant's prior drug abuse or other alleged extraneous offenses. At the evidentiary hearing, lead counsel admitted that: (1) possession of cocaine constituted a felony and a specific act of misconduct; (2) he was not familiar with any of the cases cited in habeas counsel's brief regarding the admissibility of evidence of a defendant's drug use in a non-drug offense case; (3) he did not research the issue of whether such evidence would have been admissible; (4) he himself had filed a motion in limine asking the trial court to rule, outside the presence of the jury, on the admissibility of such evidence before allowing it to be presented before the jury; (5) he would not have elicited this evidence if the court had ruled that it was inadmissible; but (6) he did not ask the trial court to rule on the admissibility of such evidence before introducing it himself before the jury. Similarly, co-counsel admitted that he "kind of expected [evidence of applicant's prior drug use] was not admissible but [that he] did not have any cases on it" because he did not research that issue. In short, the record shows that counsel were aware of the problems that might arise by the extraneous evidence (as shown by the filing of their pre-trial motion), but that they failed to research the law and were therefore inadequately prepared to address them. Thus, they inadvertently opened the door to the very evidence that they had, up to that point, successfully kept out, allegedly in an effort to rebut a State's theory that the State itself never advanced. We conclude that counsel failed in their "duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process," Strickland, 466 U.S. at 688, and hold that lead counsel's introduction of evidence of applicant's prior drug use constituted deficient performance. 3. Counsel failed to object to the prosecutor's eliciting testimony that applicant had killed one of her stepmother's rabbits. As noted earlier, the most critical piece of evidence that the State presented against applicant was that she led the police to the suspected murder weapon. According to her trial counsel, applicant took the stand to respond to this evidence, testifying that: (1) she knew the location of the weapon because Nilda had taken her there and had thrown the weapon away in front of her; (2) she was afraid to tell the police about it earlier because Nilda had threatened to kill her, her unborn baby, and her grandmother, if she ever told anyone about what happened at the bridge; and (3) she did not know about Juan's death at the time, but she continued to obey Nilda's instructions to keep quiet even after she found out because that knowledge made her more afraid. On cross-examination, the State challenged applicant's claimed fear of Nilda by asking her, without objection, whether she killed one of Nilda's rabbits. Applicant denied doing so and the prosecutor impeached her with her grand-jury testimony that a rabbit had died of a heart attack, which she had caused, because Nilda "wouldn't cry over [her] father [Juan's death]." Nilda's counsel then used this testimony in his closing argument to demonstrate that applicant was both dishonest and violent, suggesting that applicant's killing the rabbit indicated her capability to kill her father as well. It is impermissible to try a defendant as a person of bad character. Templin, 711 S.W.2d at 32. See also Tex. R. Evid. 404(a). In Templin, appellant Bobby Templin was convicted of murdering his wife by electrocution. The State presented witnesses who testified that when Templin was ten or twelve years old, he told them that he electrocuted dogs and cats. The State "offered this evidence to `identify' [Templin] by establishing that killing by electrocution is a `signature' of his modus operandi." Templin, 711 S.W.2d at 33. We applied the two-part test for admissibility of extraneous-offense evidence and agreed that the State satisfied the first prong of the test, because "a material issue in the State's case was the identity of the criminal actor and the testimony aided in identifying [Templin] as the person who committed the crime," id., since the extraneous evidence showed Templin's "unusual degree of comfort with electricity and [his] apparent propensity to kill by electrocution." Id. Nevertheless, we held that the State failed to satisfy the second prong of the test, because the probative value of the evidence was substantially outweighed by its "prejudicial and inflammatory nature," partly due to the length of time separating the extraneous offense from the one before us (some ten to fifteen years) and partly due to Templin's age (between ten and twelve) at the time he allegedly committed the extraneous offense. Id. at 33-34. In the present case, the State failed to satisfy even the first prong of the test: to show the relevance of the extraneous-misconduct evidence to a material issue in the case. The prosecutor had offered this evidence to impeach applicant's credibility on her alleged fear of Nilda as being the reason that she had not told the police earlier about the rifle. However, evidence that applicant killed Nilda's rabbit does not indicate that she was not afraid of Nilda, especially since the prosecutor never challenged the rest of her testimony: that the rabbit was already sick and that she had killed it, behind Nilda's back, by "causing" it to have a heart attack. Under these circumstances, Nilda was likely to think that the rabbit had died naturally because it was already sick. Thus, evidence that applicant might have killed one of Nilda's three rabbits, in a fit of anger because Nilda would not cry over her father's death, is irrelevant because it fails to show that applicant was unafraid of Nilda. Moreover, it is impermissible to attack a witness's credibility either by inquiring into specific instances of misconduct on cross-examination or by trying to prove such instances of misconduct by extrinsic evidence. Tex. R. Evid. 608(b). The prosecutor violated both these provisions of the rule inasmuch as he first cross-examined applicant about a specific instance of misconduct (killing the rabbit) and when she denied the misconduct, used extrinsic evidence (the grand-jury testimony) to prove it. Counsel should have objected to both these violations. The problem was compounded when Nilda's counsel used the improperly elicited testimony to argue in his summation that applicant was violent. However, evidence that applicant might have killed a rabbit is irrelevant to whether she could kill a human being, especially her own father. Moreover, the rabbit died after Juan's murder, and the two were killed in different ways: the rabbit had died of a heart attack (allegedly caused by applicant), while Juan was killed by a high-powered rifle. In short, the killing of the rabbit establishes neither a "propensity to kill" nor "identifies" appellant by establishing a certain method of killing as a "signature" of her modus operandi, as the extraneous-offense evidence did in Templin. See 711 S.W.2d at 33. In his affidavit, lead counsel admitted that: (1) the testimony relating to the rabbit's death was irrelevant to whether applicant murdered Juan; (2) the State did not give pre-trial notice regarding this extraneous misconduct; (3) he could have objected based on relevance, prejudice, and lack of notice; but (4) he did not object. At the evidentiary hearing, lead counsel agreed that: (1) the prosecutor's question about whether applicant had killed Nilda's rabbit was improper because it was a question about a specific act of misconduct and the issue of whether applicant had killed the rabbit was collateral to the issue of whether she had killed Juan; (2) he should have objected to this testimony on the bases of relevance, prejudice, lack of notice, and an attempt to impeach on a collateral matter; (3) it was harmful to applicant for the jury to find out that she had previously killed a living creature and apparently lied about it on the stand; and (4) the harm was compounded by Nilda's counsel's argument that she was violent and a liar. Co-counsel stated in his affidavit that neither he nor lead counsel "had any idea that Applicant had allegedly killed one of her step-mother's rabbits." He admitted at the evidentiary hearing that: (1) he had not read applicant's grand-jury testimony; (2) he was not even aware of the fact that "[i]n a pretrial hearing the judge orders the State to disclose [the defendant's] grand-jury testimony"; and (3) he did not know whether lead counsel, during discovery, had requested all the statements made by applicant. In his affidavit, co-counsel also admitted that applicant's allegedly killing the rabbit "[might] have been extraneous conduct not relevant to this case," but that neither he nor lead counsel saw the evidence as damaging to applicant's case at the time that it was presented to the jury. According to co-counsel's affidavit, the evidence became relevant when the prosecutor used applicant's prior inconsistent grand-jury testimony to impeach her, because it showed that she had "either lied or was just mistaken in her previous answer" that she had not killed the rabbit. As we discussed earlier, however, the prosecutor's use of this evidence constituted improper impeachment. At the evidentiary hearing, co-counsel agreed that the question whether applicant had killed one of Nilda's rabbits was: (1) irrelevant to a charge of killing her father; (2) inadmissible under Templin and Rule 608(b); (3) collateral to whether she killed her father; and that (4) the defense should have timely objected to the prosecutor's initial question as to whether applicant had ever killed a rabbit; and (5) the prosecutor's impeachment of applicant on a collateral matter, showing she had previously lied under oath, was harmful to her in a case where her credibility had become an issue before the jury. In short, the record shows that counsel did not seek or read applicant's prior grand-jury testimony about the rabbit's killing, that they were not prepared for the prosecutor's question, and that they failed to realize the significance of this evidence at the time that it was improperly elicited. Thus, counsel failed in their "duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process," Strickland, 466 U.S. at 688., and we hold that counsel's failure to object to the improper evidence constituted deficient performance. 4. Counsel failed to object to testimony that applicant was dishonest and lied growing up when it benefitted her. Nilda's counsel, during her defense, recalled applicant's brother, Gabriel, and elicited, without objection, that applicant, during her youth, was "not always" honest and used to lie when it benefitted her. In fact, Nilda's counsel posed several leading questions on his direct examination, without objection, and had Gabriel confirm specific instances where applicant had allegedly lied. Lead counsel, during his summation, then endorsed Gabriel's testimony, stating: "You have — then you have [applicant's] testimony. You know, her own brother says she may not be the most truthful person." Nilda's counsel, in his own summation, referred to this comment to persuade the jury not to believe applicant's testimony because her own attorney admitted that she was a liar. Since applicant testified, her credibility was subject to attack as that of any other witness. See Tex. R. Evid. 608. However, it is improper to use specific instances of a witness's conduct for this purpose. See Tex. R. Evid. 608(b). Moreover, the record shows that Nilda's counsel was practically testifying himself, by asking leading questions and having Gabriel answer "yes" or "no," which is also improper during the direct examination of a witness. See Tex. R. Evid. 611(c). Thus, Nilda's counsel's attempt to introduce such evidence was improper, and the resulting testimony was inadmissible. Applicant's counsel should have objected on both the above grounds. Lead counsel, in his affidavit, explained that he failed to object because he believed it to be "proper, admissible character testimony." In fact, even at the evidentiary hearing, lead counsel declined to agree that "a co-defendant may not attack the defendant's credibility in the manner that [Nilda's counsel] did here," stating that "I am not for certain about that." Co-counsel did agree, however, at the evidentiary hearing, stating that a co-defendant "[c]an't present characterized [sic] evidence, yes, I'm aware of that." In his affidavit, co-counsel explained that he did not object because: "I believed [Gabriel's] testimony actually showed his prejudice toward Applicant. Therefore, [his] testimony about Applicant's alleged dishonesty, I felt, was just due to his prejudice against Applicant, and I felt the jury would see that he was prejudiced, by listening to his testimony." He stated the same at the evidentiary hearing. However, when habeas counsel pointed out that counsel never made this argument (how Gabriel's testimony actually showed his prejudice toward applicant) to the jury, co-counsel responded, "I don't know whether [lead counsel] addressed that or not." In short, the record indicates that counsel were unfamiliar with the applicable law, that they did not research the issue and, therefore, did not realize the legal basis for an objection to Gabriel's testimony concerning specific instances of conduct to show the allegedly "untruthful" character of the witness, i.e., applicant. Thus, counsel failed in their "duty to bring to bear such skill and knowledge as [would have rendered] the trial a reliable adversarial testing process," Strickland, 466 U.S. at 688, and we hold that such failure constituted deficient performance. 5. Counsel failed to object to the improper argument of the co-defendant's lawyer that he did not cross-examine applicant because "it was so obvious that she was a liar." Nilda's counsel argued throughout his summation that the jury should not believe applicant's testimony against his client because applicant was a liar. He emphasized that he did not even cross-examine her because he personally believed that she was a liar. In Menefee v. State, 614 S.W.2d 167, 168 (Tex.Crim.App. 1981), we held that it was reversible error for the prosecutor to inject his personal opinion of a witness's credibility into his jury argument when the credibility of the witness was critical to the trial. We explained that it was improper because it was likely to "carry undue weight with the jury in light of the prosecutor's experience." Id. The same is true in the present case, where the record shows that Nilda's counsel appeared frequently on television, was a well-known criminal-defense attorney in the community, and was acknowledged both by the fellow attorneys and the trial court as the most vigorous attorney at trial. Thus, his expressed personal belief about applicant's credibility, like the prosecutor's personal opinion of his witness's credibility in Menefee, was likely to "carry undue weight with," id., and thus improperly influence, the jury in this case. In his affidavit, lead counsel admitted that he did not object to the above argument by Nilda's counsel, but could not remember why and that, in retrospect, he thought that he might have viewed the argument, at the time, to be a proper summary of the evidence. At the evidentiary hearing, he admitted that he was not aware of the case law that a lawyer cannot argue his personal opinion of a witness's credibility, that he did not research that issue, but that he still felt "reasonably comfortable" in "trying murder cases without being aware of" the law applicable to this issue. Co-counsel, in his affidavit, simply stated that he did not object to the improper argument by Nilda's counsel because he "did not argue final summation." He stated the same at the evidentiary hearing, explaining that he and lead counsel had "a general rule" that the attorney who does the witness/argument makes the objections. He stated that he personally would have objected to the improper argument by Nilda's counsel, but that he did not because it was "not [his] responsibility" since it was lead counsel's "portion of the trial." In short, the record shows that lead counsel: (1) did not know that an attorney cannot argue his personal opinion about a witness's credibility; (2) did not research the issue; (3) failed to object to the improper argument, because he did not know the legal basis for doing so. The record also shows that co-counsel: (1) was aware of the legal basis for objecting; (2) would have objected; but (3) did not object, because of a general arrangement between the two attorneys that only the person doing the witness/argument would make an objection. Thus, counsel failed in their "duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process," Strickland, 466 U.S. at 688, and we hold that their failure to object to the improper argument by Nilda's counsel constituted deficient performance. 6. Counsel failed to request limiting instructions to the evidence of applicant's alleged extraneous acts of misconduct. The trial court had ruled that Gabriel's testimony about applicant's alleged extraneous acts of misconduct became admissible when co-counsel opened the door to such evidence by asking Gabriel about why Juan had not always been proud of applicant. Applicant argues, therefore, that this testimony was admissible for the limited purpose of explaining why her father had not always been proud of her and not as evidence of her credibility. Yet, Nilda's counsel used the testimony to argue that applicant was not credible. Applicant, therefore, argues that upon admission of that testimony, she was entitled to an instruction, pursuant to Texas Rule of Evidence 105, that the jury should consider the testimony only for the limited purpose for which it was offered and that her counsel's failure to request such instructions constituted deficient performance. We agree that applicant was entitled to an instruction upon admission of the above testimony. See Tex. R. Evid. 105 (a). See also Ex Parte Varelas, 45 S.W.3d 627 (Tex.Crim.App. 2001) (counsel ineffective in failing to request instruction that extraneous offenses should be considered only for the limited purpose for which they were admitted). In Varelas, the State had submitted evidence of several extraneous acts allegedly committed by Varelas against the deceased victim for the purpose of showing Varelas' state of mind, intent, motive and relationship to him. Id. at 630. We recognized that, if Varelas' counsel had asked the trial court to instruct the jury to consider the extraneous-acts evidence only for the limited purposes for which it was offered and only if they believed beyond a reasonable doubt that Varelas had committed those extraneous acts, the trial court would have been required by law to give those two instructions. Id. at 631. Thus, we held counsel's performance to be deficient in failing to request the instructions. Id. at 632. In his affidavit, lead counsel admitted that: (1) he does not "read the Rules of Evidence quite often"; (2) he "always just refer[s] to the Pattern Jury Charge" as an authority for obtaining limiting instructions; (3) applicant was entitled to an instruction, pursuant to Rules of Evidence 105 and 404(b), informing the jury that it may consider the evidence only for the limited purpose for which it was offered and not as substantive evidence of guilt; (4) neither he nor co-counsel requested such instructions, either when the evidence was admitted or in the jury charge; but (5) he did not recall either discussing the issue with co-counsel or why they might not have requested those instructions. At the evidentiary hearing, however, he insisted that co-counsel should have requested the instructions because the extraneous-acts evidence had been admitted through a witness that he had questioned. Co-counsel, in his affidavit, simply stated that he "was not responsible for the jury charge." At the evidentiary hearing, he admitted that (1) applicant was entitled to a limiting instruction; (2) he could have asked for it; and (3) if the judge had refused, applicant would have had an issue on appeal. However, he stated that he did not want to ask for the instruction because he would have had to object before the jury, which he was reluctant to do for fear of appearing as an "obstructionist" in front of them. The record shows that co-counsel did not know that an attorney could request a limiting instruction outside the presence of the jury. When habeas counsel pointed out that the trial court was required by law to give those instructions upon the defense's request and that it would have done so even outside the presence of the jury, again upon the defense's request, co-counsel responded, "I did not think it was that big an issue." When habeas counsel pointed out how Nilda's counsel then used the extraneous evidence to argue that applicant was not credible and asked co-counsel why he did not request a limiting instruction at the jury-charge conference, which had been held outside the jury's presence, co-counsel responded, "That was [lead counsel's] department." In short, the record shows that both lead counsel and co-counsel agreed that applicant was entitled to the limiting instructions, but neither requested any because each seemed to consider that it was the other counsel's responsibility to do so. We note that, in most cases, counsel's failure to request limiting instructions might not constitute ineffective assistance. In the present case, however, it was tantamount to ignoring the proverbial 800-pound gorilla in the room. Given the amount of extraneous-acts evidence that existed, counsel should have asked for an instruction to at least try to limit the amount of what was introduced after the trial court ruled that co-counsel had opened the door to such evidence. Counsel could have asked for this instruction outside the presence of the jury, and thus avoided appearing as an "obstructionist" in front of them. In the absence of such an instruction, Nilda's counsel in particular used the evidence to try to damage applicant's credibility as much as possible before the jury and counsel themselves admitted that applicant was harmed as a result of their failure to request a limiting instruction. We, therefore, hold that this failure constituted deficient performance.