ACCEPTED
09-16-00306-CR
NINTH COURT OF APPEALS
BEAUMONT, TEXAS
12/10/2017 12:02 PM
CAROL ANNE HARLEY
CLERK
NO. 09-16-00306-CR
FILED IN
⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯ 9th COURT OF APPEALS
BEAUMONT, TEXAS
In the 12/11/2017 8:02:00 AM
Court of Appeals CAROL ANNE HARLEY
Clerk
For The
Ninth District of Texas
At Beaumont
RECEIVED IN
⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯ 9th COURT OF APPEALS
BEAUMONT, TEXAS
12/11/2017 8:01:00 AM
No. 16-04-04919-CR
CAROL ANNE HARLEY
In the 221st District Court Clerk
Of Montgomery County, Texas
⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯
DELL IVAN GODKIN
Appellant
V.
THE STATE OF TEXAS
Appellee
⎯⎯⎯⎯♦⎯⎯⎯⎯
APPELLANT’S MOTION
FOR REHEARING EN BANC
⎯⎯⎯⎯♦⎯⎯⎯⎯
TO THE HONORABLE COURT OF APPEALS:
COMES NOW THE APPELLANT, BY THE THROUGH his attorney of
record, and respectfully offers his Motion for Rehearing En Banc pursuant to
T.R.A.P. 49.7 from this Court’s opinion in the above styled and numbered cause
1
delivered on November 8, 2017 affirming the judgement and conviction.
SOLE GROUND FOR REVIEW
THE COURT OF APPEALS ERRED BY RULING THAT
APPELLANT DID NOT SATISFY THE SECOND PRONG
OF STRICKLAND.
ARGUMENT AND AUTHORITIES
Appellant Dell Ivan Godkin was found guilty and sentenced to life in prison
for aggravated sexual assault of a child. In this Court’s November 8, 2017 opinion,
the Court found that Appellant could not satisfy the second prong of Strickland,
holding “Appellant has not demonstrated that, but for counsel’s alleged ineffective
assistance in bringing up the extraneous offense evidence during voir dire and
opening statement, the results of the trial would have been different.” Godkin v.
State, NO. 09-16-00306 at 12 ((Tex.App. – Beaumont, November 8, 2017).
During voir dire and opening statement, Appellant’s attorneys discussed an
extraneous sexual assault of a child, allegedly committed by the Appellant, in front
of the jury. (RR II 130-151 & III 10-12). The State never offered or introduced
evidence of this extraneous offense.
This case provides for a very unique set of circumstances for this Court to
consider in determining if the second prong of Strickland has been met. First, we
have evidence from two jury panel members, after hearing Appellant’s trial
2
counsel inform the jury panel that Appellant committed another “crime, a wrong
act, evidence regarding Dell Godkin committed other crimes or wrongs or acts
against a child who is not the alleged victim in this case”, state that they would
now be biased against Appellant. (emphasis mine) (RR II 130-151). One panel
member stating it is impossible not to be biased and the other stating that he would
be inherently biased and that everyone would be inherently biased. (RR II 142,
172). We rarely find a record that definitively demonstrates the devastating impact
the introduction of an extraneous offense has on a jury’s impartiality. And that
extraneous offense was introduced by Appellant’s own attorney’s after filing a
motion in limine and having the court exclude that very evidence.
Secondly, the jury found, by their verdict, that the complaining witness was
not credible. The jury was charged with continuous sexual assault of a child and
the lesser included offense of aggravated sexual assault of a child. The jury
returned a verdict for the lesser included offense of aggravated sexual assault of a
child. The only difference being whether the abuse continued for more than thirty
(30) days, as the complaining witness stated it did (RR VI 160). By returning a
verdict for the lesser included offense and not continuous, the jury directly found
that the complaining witness was not credible.
Third, trial counsel admitted they made mistakes. (SRR I 49). They further
admitted that the extraneous offense bolstered the credibility of the complaining
3
witness. (SRR II 29, 34, 37, 40). Sexual assault cases are frequently he said, she
said trials in which the jury must reach a unanimous verdict based solely upon two
diametrically different versions of an event, unaided by any physical, scientific, or
other corroborative evidence." See Hammer v. State, 296 S.W.3d 555, 561-62
(Tex.Crim.App.2009). Trials involving sexual assault may raise particular
evidentiary and constitutional concerns because the credibility of the complainant
is central (id).
In closing, numerous courts have held that trial counsel can be ineffective
for simply not objecting to extraneous offenses or opening the door to an
extraneous offense. Defense counsel's repeated failure to object to the admission
of multiple extraneous offenses or " bad acts" has been held to deprive a defendant
of a fair trial and to constitute ineffective assistance. See, e.g., Cude v. State, 588
S.W.2d 895, 897-98 (Tex.Crim.App.1979) (in armed robbery trial defense
counsel's repeated failure to object to inadmissible extraneous offense evidence of
the defendant's prior armed robberies, theft of a car, possession of drugs and a
sawed-off shotgun, and prior incarceration was ineffective assistance and denied
defendant a fair trial under pre- Strickland standard); Doles v. State, 786 S.W.2d
741, 746 (Tex.App.-Tyler 1989, no pet.) (trial counsel's reoccurring failure to make
proper objections to evidence of extraneous sexual offenses committed by the
appellant against his stepchildren, other than the victim, which were admitted
4
during the guilt-innocence phase, represents professionally unreasonable errors,
adversely affecting appellant's defense"); Jackson v. State, 857 S.W.2d 678, 683
(Tex.App.-Houston [14th Dist.] 1993, pet. ref'd) (counsel rendered ineffective
assistance by, among other conduct, permitting evidence of extraneous offenses of
delivery of narcotics and possession of weapons to be admitted with no objection).
PRAYER
WHEREFORE, for the reasons set forth above, Appellant respectfully seeks
review by the Court en banc, hold that Appellant’s trial counsel were ineffective,
and remand to the trial court for a new trial.
/s/ Shawn McDonald
Shawn McDonald
Attorney for Appellant
77 Sugar Creek Center Blvd. Ste.230
Sugar Land, TX 77478
Smcdonald2421@gmail.com
PH 713 228 25253
FAX 281 809 7133
State Bar Number 24029715
CERTIFICERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served via efile to
Bill Delmore, Assistant District Attorney, on the 10th day of December 2017.
/s/ Shawn McDonald
5
CERTIFICATE OF COMPLIANCE
1. The brief complies with the type-volume limitation imposed by Rule 9.4(i)
of the Texas Rules of Appellate Procedure because the brief contains 812 words
excluding the signature, proof of service, certification, certificate of compliance,
and appendix.
2. The brief complies with the typeface and the type style requirements of Rule
9.4(e) of the Texas Rules of Appellate Procedure because this brief has been
prepared in a proportionally spaced typeface using Word in 14-point font and
Times New Roman type style.
/s/ Shawn McDonald
6