dissenting.
Because I believe that Frank Saenz received ineffective assistance of counsel during the trial of this case, I respectfully dissent.
At the conclusion of testimony, the State waived three counts of the charged offense. By then, of course, substantial evidence had been admitted as to those three (time-barred) offenses. At the charge conference, Saenz’s counsel requested an instruction informing the jury that the State had waived three counts of the charged offense. The requested instruction further informed the jury that it could not consider any evidence presented regarding the waived offenses. After the trial court denied this request, defense counsel, obviously flustered, requested the instruction now attacked on appeal. That instruction informed the jury about the three waived counts, and further stated: ‘You may still consider the evidence presented regarding those counts to the extent that evidence may be relevant to Counts I, II, and VI.”
The majority contends this instruction and the admission of evidence regarding the waived counts is not erroneous because the evidence would be admissible under article 38.37 of the Texas Code of Criminal Procedure. See Tex.Code CRiM. PROC. Ann. art. 38.37 (Vernon Supp.2003). The majority, however, fails to recognize two factors. First, the instruction emphasized testimony that should not have come in without at least some limiting language. Article 38.37 does not grant full admission of evidence of other bad acts merely because a child under 17 is involved. See id. Rather, article 38.37 allows “evidence of other crimes, wrongs, or acts ... for its bearing on relevant matters, including: (1) the state of mind of the defendant and the child; and (2) the previous and subsequent relationship between the defendant and the child.” Id. When determining whether to admit evidence offered under this statute, the trial court must conduct a balancing test to determine if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Walker v. State, 4 S.W.3d 98, 103 (Tex.App.-Waco 1999, pet ref'd). When the trial court determines the evidence should be admitted, a limiting instruction is appropriate, limiting the jury’s consideration of the extraneous offenses to those purposes for which they are admitted. Abdnor v. State, 871 S.W.2d 726, 738 (Tex.Crim.App.1994). *549While we may presume the trial court engaged in a balancing test, we can clearly see from the charge given to the jury that its consideration of this evidence was not in any way restricted. Indeed, Saenz contends the instruction amounted to an unconstitutional conclusive presumption, which in essence instructed the jury that beyond a reasonable doubt the three waived offenses occurred.
There is no silent record here leaving this court to speculate. The State managed to introduce ample evidence on offenses that were barred by limitations. Defense counsel was thwarted in his efforts to avoid a mistrial with a requested instruction when the trial court denied his initial request. Counsel’s second requested instruction failed to properly limit the jury’s consideration of the extraneous offense evidence. The jury obviously had questions about this very issue, as revealed by the note they sent back to the judge. However, there is no question about counsel’s strategy or lack thereof — he admitted that he committed egregious error.
This case involves allegations of abusive and abhorrent conduct, but it is a swearing match between two individuals. There is no physical evidence to support the allegations. One of the victims recanted her accusations. From this record I do not believe one can conclude that Saenz received a fair trial. Rather, I can only conclude that Saenz was prejudiced by counsel’s deficient performance. I would reverse the conviction and remand the cause for a new trial.