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that she uras aware ofHmrel1and Geotge, aid that her failure to requestinst~~~ctions was an oversight, and not the result of trial strategy. After alengthy analysis, CO\ uses the Stricklmdstandard to 6nd that counsel'sperforn~ance as to the lack of instructions was deficient. As to the prejudiceprong, because the charge did uot contai~ the appropriate burdenof proof for the extraneous offenses, it is rewonable to presume that thejmy did not necessa~ily find beyond a reasonable doubt that said actsrwere committed by Applicant. Also, because no limiting instmction wasgiven, juro~s mere likely to consider the extmeous acts as direct e\ideuceof Applimt's guilt, nan~ely, that he acted in confor~nity with hischancter. Consideriog dl evidence p esented by both sides, CC\ concludestliat Applicmt's defense urn prejudiced by the absence of i~~structions:because the juy was not required to find Applicant had conuninedthe o&nses beyond a reasonable doubt, jurors~vere left with no guidanceas to the proper weight to be given those acb. The ju~y niore than likelyassunled tlmt because the ext~aneous acts were part of the evidence surro~mdingthe relationship between Applicant and the victim, they wereproper factors to detemine bis guilt. Also, without the linutulg instmctions,it MIS probable tliat jurors considered them as direct evidence ofApplicant's guilt - propensity evidence - rather than the pulyose forwlvllich they had been offered. Finally, fdure to request LC properinstructions jeopardized tlie jury's ability to convict Applicant of a lwefiuc111ded offense: by not holding tlie jmy to the correct burden of proofmd limiting instroctio~~s, the likeliliood of tlie july fiuding Applicant guiltyof capital murder d~miatically increased. On the facts of this case, if theju~y did not believe that Applicant had engaged ir a pattern of abuse, itwo111d have been ditlcult to find he had intentionally i~lflicted the injuries.Tlms, there was a reasonable probability that he have been convictedof one of the lesser-included offemes such a n11uis1a11gliter ornegligenthomicide (and on wlucb tile jmy \vas inst~~~cted). Thus, tlie harmis sufficient to undernline confidence in the outcome, and there was armonable possibility that but for the errors conuuitted by t~id counsel,the result of his trial would have been different. Relief is granted in theform of a newtrial.DEATH PENALTY OPINION: ROBBRT hlADRlD SALAUR, No.7345 1, from Lubbock County; Atnrmed, 1/17/01; Opinion: MeyenPacts: Appellant beat up the 2-yr-old daughter of lus girlfriend,who he was supposed to be bilbysitting, then lefi with h~s fiiend to buybeer: The girlhiend found the baby in 11er crib unconscious and calledEMS. \%en Appellant saw the a~nbulance on the way back from the store,he did not stop, but went to his mother's house to &ink the beerParamedics noticed the back of the baby's head felt like Jello, aid slie wasbadly beaten dl over her body. She died later that evening. Appellant toldpolice that he had beconie angry and pushed the baby down in the showermid that he had abandoned her because he was scared. The autopsyresults did not support Appelluit's sto~y: she had suffered, anlong otherthings, lie-threatening injuries caused by hard blom to the head, chestand ston~ach, Appellmt had a history of committing assaultive offenses.CMlm no dificultyrejecting his claim that the ewdencewas insufficientto support future dangerousness - prirualily the pa~licularly heinousfacts.Jury discussed and considered parole: At a hearing onAppellant's n~otion for new trial, he presented evidence that juro~s, particularlyjuror Kelly (a cop) discussed parole. Three jurors testiGed thatKelly professed to know the law because he was a cop, and told them thata Me sentence really meant 20 )m. One hold-out said she only changedher mind and wted for death &er Kelly made the statenlents. Kelly testifiedthat he only told the othe~s that life doesn't really mean life, butde~ued holding himself out as some expert on parole. The State present-ed affidavits from 4 jurors who said Kelly did not profess to know the lawbecame he was a cop.Held: CCA. using the test in Sneed. 670//262 (CCA19841, holds that trial court did not abuse its discretion in overrulingtbe motion for new trial . The testimony was conflicting andthere was no consensus that Kelly held hiuselfoul as an expert on parole,or told jurors that Appellant would only sene 20 yrs.Autopsy photos were overly prejudicial: State introducedphotograpluc slides of the baby's autopsy, which showed the victinl'sinternal orgm aid brain after re~uoval from her body These i~~cludedshots of the lungs, heart and intestines, showing mmive internal i~~juries.Held: The trial court did not abuse its discretionbecause the photos were highly mobalive. Appellant told police thathe had pushed the baby down, which had caused her injuries. The photos\we used to show the iutemal injuries were inconsistent withAppellnnt's statement, and were necessary to prove that he had acted withthe requisite inteut.Extraneous offense: A witness testified tliat the victim criedout in p ~ when i she removed the child's coat. The witness then noticed811 inju~y on her shoulder, and upon inqui~y, the child told her that Robert(Appellant) did it. The injo~y was a frachn'ed collarbone and dislocatedshoddec The State claimed, and the trtd court agreed that tlus statenlentwas an excited utterance and did not violate ilppeilait's confro~ontation andhearsay objections. Appellant asserts tlus was not an excited uttewncebeca~~se there was no evidence to show when the hijury occurred, and thecl~ild's statement was hi response to a question. Moreover, the child nrasnot still in the grip of the e\-ent causing the injmy.Held: Trial court did not abuse its discretion. Here, tliedeclamnt \vas a 2-y~old child who was badly injured. Testimony indicatesshe mras upset and iu pain when she made her slatenient. Baed onthis, CG4 cannot say tbe trial court's adnussion of the testiniony under theexcited utteImce exception mas outside the zone of reasonable disagreement.Trial court could have found that the victim's statements related toa starthg event or condition, either the event of sustaining the injuly, orthe pain slie suffered when her coat was remowd and she was under thephpicd and emotional stress of the exitenlent caused by the event orcondition.PDRS GRANTBD THIS WEEK1310-00 DONOVAN, DAVID hi. 01/10/01 A Hanis Aggravated SexualAssault (017///407)1. \Vhetl~er the Court of Appeals erred in finding that the trial court properlydenied Appellant's request for a motion for oew trial on the voluntarinessof his plea for deferred adjudication.1329-00 HROMAD&\, DARLENE,01/10/01 A Harris D\W (NP)1. Whether the Cou~l of Appeals erred in holding that Appellant's claimthat the trial court erred in denying her requested ju~y inst~uction pursuantto kt., 38.23, V.A.C.C.', on the voluntdness of tlie field sobrietytests she performed was \valved when she failed to object to this evidencewhen it was offered at trial.MARCH 2001 1 www.rco~~.cam I vole ron THE DEFENSE 135 1