Opinion
No. AP-75,461
Delivered: June 21, 2006. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus from Cause No. 2000CR5021 in the 227th Judicial District Court of Bexar County.
OPINION
This is a post-conviction application for a writ of habeas corpus forwarded to this Court pursuant to Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of three counts of the felony offense of aggravated sexual assault of a child, and punishment was assessed at fifteen years' imprisonment on each count, to be served concurrently. Applicant appealed, and his conviction was affirmed. Saenz v. State, No. 04-01-00283-CR (Tex.App.-San Antonio, delivered January 29, 2003, pet. ref'd). Applicant contends, inter alia, that he received ineffective assistance of counsel at trial, because counsel failed to research the statute of limitations on aggravated sexual assault of a child prior to trial, which resulted in his failure to notice, until after the presentation of evidence at the guilt phase, that three counts of the six-count indictment were barred by the statute of limitations. Counsel did not notice the defect until the charge conference. Although counsel requested a mistrial, which was denied, he failed to request a limiting instruction or an instruction in the jury charge on the burden of proof. At a hearing on this writ, counsel testified that his failure to request those instructions was not the result of any trial strategy. Counsel also testified that the admission of the extraneous-offense evidence without such instructions "affected the very framework of the trial" and resulted, in his opinion, in the denial of a fair trial. The trial court, apparently agreeing, recommends that this Court give "serious consideration" to Applicant's claim for relief on the basis of ineffective assistance of trial counsel. While the Court is not bound by the trial court's findings, the Court should follow them where they are supported by the record. Ex parte Brandley, 781 S.W.2d 886 (Tex.Crim.App. 1989); Ex parte Adams, 768 S.W.2d 281 (Tex.Crim.App. 1989). Habeas corpus relief is granted, and Applicant's conviction and sentence in cause number 2000CR5021 from the 227th Judicial District Court of Bexar County is set aside. Applicant is ordered remanded to the custody of the Sheriff of Bexar County to answer the indictment in cause number 2000CR5021.