Opinion
WR-32,805-06
04-05-2023
EX PARTE RAY DANIEL GERHARDT, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. A20941-1810-W2 IN THE 64TH DISTRICT COURT FROM HALE COUNTY
ORDER
Per curiam
Applicant was convicted of burglary of a habitation. The Seventh Court of Appeals affirmed his conviction. Gerhardt v. State, No. 07-20-00054-CR (Tex. App.-Amarillo, Nov. 10, 2020, pet. ref'd). Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See TEX. CODE CRIM. PROC. art. 11.07.
The trial court found that defense counsel failed to request a jury instruction limiting consideration of extraneous offense evidence. The court concluded that counsel's failure constituted deficient performance and there is a reasonable probability that this failure could have prejudiced the defense. The court recommended granting relief. We disagree.
To prevail, Applicant must show a reasonable probability that, but for counsel's deficient performance, the result would have been different. See Miller v. State, 548 S.W.3d 497, 499 (Tex. Crim. App. 2018); Ex parte Overton, 444 S.W.3d 632, 640 (Tex. Crim. App. 2014). In this case, we are not persuaded that there is a reasonable probability that, but for counsel's failure to request a limiting instruction, Applicant would not have been convicted.
We agree with the trial court that Applicant's remaining allegation is without merit.
Relief is denied.