RICHARDSON, J.

ON APPLICATION FOR A WRIT OF HABEAS CORPUS IN CAUSE NO. 09-0411X(A) IN THE 71^ST DISTRICT COURT HARRISON COUNTY RICHARDSON, J., filed the order of the Court in which KELLER, P.J., and MEYERS, JOHNSON, KEASLER, HERVEY, YEARY and NEWELL, JJ., joined. ALCALA, J., filed a dissenting opinion. ORDER

Eighteen-year-old Applicant, Cortne Mareese Robinson, and his two accomplices burglarized the home of Frank and Arnola Zabokrtsky on an early September morning in 2009. They entered the house through a window they had broken and awakened the Zabokrstkys. One of the accomplices, Travion Young, ripped off the pajama top of 82-year-old Arnola, bound her to a chair, and then dragged her from the bedroom to the adjoining bathroom while Applicant and the other accomplice, Bradney Smith, struggled with 82 year- old Frank. During the struggle, Applicant struck Frank in the face with a silver Ruger revolver before shooting him. Arnola heard the gunshot and then helplessly watched her husband fall to the bedroom floor and call out to her. Applicant and Smith then ransacked the house and collected valuables while Young beat and raped Arnola in the bathroom. The three accomplices then regrouped in the kitchen. They took Arnola, who had her hands restrained and something covering her head, into the garage and locked her in the trunk of her car. They drove the car to an untraveled location and abandoned it, leaving Arnola in the trunk. Arnola freed herself and drove to the police station, passing Applicant and his accomplices as they walked along the highway. Following up on Arnola's report, police officers arrested the three men while another officer went to the Zabokrstkys' home and discovered Frank lying on the bedroom floor. Frank was transported to the hospital but did not survive.

Shortly after being arrested and while sitting in the back of the police cruiser, Applicant was recorded by the vehicle's recording device as saying that he regretted not shooting Arnola back at the house and not shooting the responding officers at the time of arrest:

I should have dumped on that ho ass. Brother, I couldn't believe. Fuck her. Fuck her. I have tomorrow though. . . . I wish I could have gone out that way. . . . My gun's bigger than ya'll's. Shit. Should have dumped in these fucking fools, man. . . . I should have just, boom, when I could have. . . . [W]e ain't even going to count as no kids. . . . Should have went ahead and killed that bitch. . . . That bitch got out of the trunk. I almost shot her there in that room though, but I didn't. Why, I don't know. . . . I don't know why I didn't

shoot the law. Fuck the police. Fuck the police. . . . I pulled that trigger. . . . I know y'all gonna go back and watch this ho too. Fuck y'all. . . . Yeah, it was me. It was me. It was me. Yeah, I'm just getting my practice on.

Applicant, who has an extensive criminal history, was convicted of capital murder and sentenced to death for this offense. His conviction was affirmed on direct appeal in a unanimous decision by this Court.

He now asks this Court for relief through a writ of Habeas Corpus pursuant to Texas Code of Criminal Procedure, Article 11.071. Applicant presented twenty-three allegations in his application in which he challenges the validity of his conviction and sentence. Following a live evidentiary hearing, the trial judge entered findings of fact and conclusions of law and recommended that relief be denied as to all of these allegations.

This Court has reviewed the record with respect to the allegations made by Applicant. We agree with the trial judge's recommendation and adopt the trial judge's findings and conclusions, except for Conclusions paragraphs 3 and 4. We add Texas Rule of Evidence 701 to the evidentiary rules cited after the first sentence of Conclusions paragraph 7. We also note that Allegations Nineteen and Twenty-One, which the trial court rejected on the merits in Conclusions paragraphs 20 and 22, are procedurally barred because they were raised and rejected on direct appeal. As to Claims 3, 13, 14, 19 and 20 of the application, we also hold as follows.

Claim of Ineffective Assistance of Trial Counsel for Failing to Object to Evidence of Accomplice's Sexual Assault of Arnola

In Claim 3, Applicant asserts that his trial counsel was ineffective because he failed to object to the introduction and large volume of evidence concerning Young's sexual assault of Arnola. This claim is denied.

To support a claim of ineffective assistance of counsel, Applicant must demonstrate deficient performance that prejudiced his defense. Deficient performance requires a showing that counsel's performance fell below an objective standard of reasonableness, considering the facts of the particular case and judged at the time of counsel's conduct. Applicant must overcome a strong presumption that counsel's conduct fell within the wide range of reasonable assistance, and that the challenged action might be considered sound trial strategy. The mere fact that another attorney might have pursued a different tactic does not prove ineffective assistance of counsel. If deficient performance is found, Applicant must then establish prejudice to be entitled to relief. To establish prejudice, Applicant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. In this case, it is not necessary to examine prejudice because Applicant fails to meet the first prong of Strickland. He has not shown that his attorney performed deficiently.

Applicant argues that evidence related to Young's sexual assault of Arnola had no bearing on his intent when committing the offense or on his future dangerousness and that any probative value was substantially outweighed by the danger of unfair prejudice. Applicant urges that, even if some evidence of the sexual assault was admissible as same transaction contextual evidence—the sheer volume of the evidence presented, its graphic nature, and the State's arguments repeatedly reminding the jury of it—created a prejudicial effect and encouraged the jury to reach a decision on an emotional basis.

At the habeas hearing, defense counsel stated his belief that the sexual assault evidence was admissible as same-transaction contextual evidence. It is true that "extraneous-offense evidence may . . . be admissible as same-transaction contextual evidence . . . where several crimes are intermixed, blended, or connected so as to form an indivisible criminal transaction." Such reasoning allows the jury "to know all relevant surrounding facts and circumstances of the charged offense" because offenses are "not tried in a vacuum." For extraneous evidence to fall into this category, the extraneous matter must be "so intertwined with the State's proof of the charged crime that avoiding reference to it would make the State's case incomplete or difficult to understand. It was reasonable for the defense counsel to believe the sexual assault was sufficiently intertwined with the offense charged.

Applicant and his accomplices conspired to burglarize a home they selected as an easy target because it was occupied by an elderly couple and located some distance away from other houses. The burglary was committed around 5:00 a.m. when it was still dark outside. Applicant, carrying a firearm, was one of three men who entered the home and attacked the couple. Applicant and his accomplice, Smith, wrestled with the deceased until Applicant shot him, while Young tied Arnola to a chair, tore off her pajamas, and dragged her into the bathroom where he sexually assaulted her. In his statement to police, Applicant acknowledged that he saw Young taking Arnola into the bathroom and did not attempt to stop him. Instead, Applicant and Smith searched for valuables in other parts of the house until Young, carrying Arnola, joined them in the kitchen. The conspiracy continued as the three men forced Arnola into the trunk of her car, drove the car to an untraveled location, backed it into some bushes, and abandoned it.

Applicant suggests that the evidence related to Young's sexual assault would be inadmissible under either Rule 403 or Rule 404(b). Rule 404(b) will not keep relevant evidence out in every situation. There are occasions, such as this, when a third party's act could be as probative or logically relevant as a defendant's own act. Here, Applicant was in the bedroom when Young ripped of Arnola's pajamas, bound her to a chair, and then dragged her into the adjoining bathroom. Applicant did nothing to interfere with Young's actions. Applicant remained in the house until Young returned with Arnola. The jury was allowed to consider Applicant's actions during the period of time Young was alone in the bathroom with Arnola. It gave the jury context as to how the charged offense was committed. Such evidence is also relevant to the credibility of Applicant, even if a possibility exists that the jury might misuse the evidence to infer his character.

In his Rule 403 argument, Applicant suggests the sheer volume of sexual assault evidence presented by the State was unfairly prejudicial. It is not disputed that the State introduced extensive sexual assault evidence, which possibly went beyond just merely providing context for, and understanding of, the overall transaction. However, "the danger of prejudice may be much lower when evidence of a third party's extraneous acts is offered." But it is the Applicant who carries the burden of showing that the trial judge would have committed error in overruling a 403 objection had one been made. Applicant fails to carry his burden. At the habeas hearing, defense counsel explained that his lack of objection was based on a reasonable belief that all of this evidence was admissible. Counsel also explained, which is supported by the record, that he cross-examined State witnesses at trial to establish that Applicant did not have a role in the sexual assault. And, as noted above, the evidence was relevant to both the context of the crime charged and Applicant's credibility.

Defense counsel's performance was not deficient simply because he made the decision not to object based on his reasonable belief that evidence of Young's sexual assault of Arnola was admissible as same transaction contextual evidence. In addition, Applicant failed to demonstrate that the trial court would have abused its discretion by overruling a Rule 404(b) or 403 objection to the sheer volume of the evidence.

Furthermore, we do not adopt the trial court's conclusions and findings related to Claim 3. The trial court concludes that the sexual assault evidence was admissible under the law of parties and conspiracy. Applicant was not prosecuted for the sexual assault, and the sexual assault was not clearly "in furtherance of," nor should it necessarily have been anticipated as a result of, the burglary, and there is no evidence that Applicant encouraged it or directly aided and abetted Young's commission of it. The trial court, which adopted the State's findings and conclusions, attempts to blend the law of parties and conspirator liability with the same-transaction-contextual standard discussed above. However, this Court has never recognized the method adopted by the trial court and does not do so today.

Claim of Ineffective Assistance of Trial Counsel for Failing to Call an Adolescent Brain Development Expert

In his Claim 13, Applicant asserts that his trial counsel was ineffective for failing to call an adolescent brain development expert after establishing through the State's expert that brain development continues until the age of 25. Applicant fails to satisfy the Strickland standard discussed above. Applicant does not offer any authority or allege any facts in support of his position that defense counsel's failure to call an adolescent brain development expert was professionally unreasonable. Nor does Applicant show facts which, if true, would show that, but for counsel's failure to present testimony from such an expert, there is a reasonable probability that the result would be different.

Applicant merely asserts that having an expert testify would have been helpful to the jury. However, at the habeas hearing, defense counsel testified that he talked to several experts on adolescent brain development, but chose not to call any of them after three experts indicated that their testimony would not be helpful to the defense. One of those experts actually examined Applicant while the other two looked at defense counsel's file. All three could have testified about adolescent brain development, but they each advised defense counsel against it. Defense counsel did retain an expert to assist with the cross-examination of the State's expert, Dr. Allen. Defense counsel cross-examined Dr. Allen about the development of the adolescent brain and effectively elicited the points that Applicant now states a defense expert should have made. Through Dr. Allen, the defense informed the jury that the frontal lobes of a person Applicant's age were not fully developed, which could account for poor impulse control and a lack of capacity for rational decision-making.

Without more, it is apparent that Applicant fails to satisfy the Strickland standard, which is necessary to be entitled to relief. Therefore, Claim 13 is denied.

Ineffective Assistance of Appellate Counsel

In Claim 14, Applicant asserts that appellate counsel failed to meaningfully challenge the trial court's denial of Applicant's motion to preclude the death penalty as a sentencing option based on Applicant's age at the time of the offense. Appellate counsel raised the claim—but incorporated the arguments by reference—to preserve the matter for federal review since this Court has already rejected similar arguments in the past. And, while the United States Supreme Court opinion in Roper v. Simmons suggests that Applicant may have a persuasive argument, the Supreme Court still held the cut off age of 18 to be appropriate:

Drawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules. The qualities that distinguish juveniles from adults do not disappear when an individual turns 18 . . . . For the reasons we have discussed, however, a line must be drawn . . . . The age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest.

Appellate counsel understood this point of error to be meritless and had no reason to believe that this Court would rule differently in this case. He instead raised the points on appeal to exhaust them for federal review. Applicant fails to show how the appellate counsel was ineffective. Claim 14 is denied.

Claim that the Death Sentence is Unconstitutional

In Claim 19, Applicant urges this Court to hold his death sentence unconstitutional because Texas has an arbitrary system of handing down death penalties. While the trial court denied this allegation after considering the merits, this Court rejects the claim as being procedurally barred. It is clear that this type of Eighth Amendment claim has been exhausted in both the state and federal system. Claim 19 is denied.

Oral Argument Claim

Appellate counsel waived oral argument before the State even filed its brief. Applicant asserts in Claim 20 that waiving oral argument was tantamount to failing to subject the appeal to "meaningful adversarial testing" by leaving the State's response unchallenged. Applicant further asserts that, had counsel not waived oral argument and failed to file a reply brief, there is a reasonable probability that the outcome would have been different. Applicant has not demonstrated that, but for appellate counsel's waiving oral argument, his case would have been reversed on appeal. In his affidavit, appellate counsel explained that he waived oral argument because he believed that his appellate brief effectively asserted the claims and that oral argument would not have added anything. Applicant fails to show how appellate counsel was ineffective in this regard. Claim 20 is denied.

Based upon the trial court's findings and conclusions and our own review of the record, relief is hereby denied. FILED: November 9, 2016 DO NOT PUBLISH