Opinion filed September 17, 2015




                                              In The


           Eleventh Court of Appeals
                                          __________

                                    No. 11-13-00345-CR
                                        __________

                    DONALD GENE RHOADES, Appellant
                                  V.
                      THE STATE OF TEXAS, Appellee

                        On Appeal from the 355th District Court
                                 Hood County, Texas
                           Trial Court Cause No. CR12411


                         MEMORANDUM OPINION
       The grand jury indicted Donald Gene Rhoades for the offense of injury to an
elderly person.1 See TEX. PENAL CODE ANN. § 22.04 (West Supp. 2014). The
indictment also contained one enhancement paragraph in which the grand jury
charged that Appellant had been convicted previously of the offense of unauthorized
use of a motor vehicle. Later, the State filed a “NOTICE OF ENHANCEMENT”


       1
         Under a docket equalization order, the Supreme Court of Texas transferred this appeal from the
Second Court of Appeals to the Eleventh Court of Appeals. As required under TEX. R. APP. P. 41.3, we
will decide this case in accordance with the precedent of the Second Court of Appeals.
under Section 12.42 of the Texas Penal Code. See PENAL § 12.42(d). In the notice,
the State set out two additional enhancement paragraphs: placement of a stamp or
serial number on a vehicle with the intent to change the vehicle identity and
conspiracy to manufacture more than fifty grams of methamphetamine. In the
notice, the State also set out four habitual counts: driving while intoxicated—
maiming, possession of a controlled substance, unauthorized use of a motor vehicle,
and theft of oilfield property. The jury convicted Appellant of the offense of injury
to the elderly. At the conclusion of the punishment phase of the trial, the jury found
that an enhancement paragraph and a habitual count were true and assessed
Appellant’s punishment at confinement for a term of ninety-nine years. The trial
court sentenced Appellant accordingly. We affirm.
      In a single point of error, Appellant claims that he was denied effective
assistance of counsel because his trial counsel declined to make an opening
statement during the punishment phase of the trial. In order to determine whether
Appellant’s trial counsel rendered ineffective assistance at trial, we must first
determine whether he has shown that his counsel’s representation fell below an
objective standard of reasonableness and, if so, then determine whether there is a
reasonable probability that the result would have been different but for his counsel’s
errors. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 988
S.W.2d 770, 772 (Tex. Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 55–
57 (Tex. Crim. App. 1986). We must indulge a strong presumption that counsel’s
conduct fell within the wide range of reasonable professional assistance, and
Appellant must overcome the presumption that, under the circumstances, the
challenged action could be considered sound trial strategy. Strickland, 466 U.S. at
689; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Where the record
is silent, we cannot speculate on trial counsel’s strategy. Thompson v. State, 9
S.W.3d 808, 814 (Tex. Crim. App. 1999). Thus, an allegation of ineffective
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assistance of counsel must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness. Id. Generally, the record on
direct appeal will not be sufficient to show that trial counsel’s performance was so
lacking as to overcome the presumption of reasonable conduct. Id. at 813–14.
      Appellant contends that the right to make an opening statement is a valuable
statutory right and that his trial counsel deprived him of that right. At the appropriate
time in the proceedings, Appellant’s trial counsel told the trial court, “Judge, we’d
reserve our opening.” That statement, coupled with the fact that trial counsel did not
subsequently make an opening statement, led Appellant to reach the conclusion that
his lawyer simply forgot to present an opening statement. Because his attorney
simply forgot to make an opening statement, Appellant argues, the omission could
not be classified as trial strategy. Appellant claims that the prevailing norm is for
the trial attorney to provide the jury with a foundation so that counsel could at least
attempt to redirect any mindset established by the State. Appellant maintains that
trial counsel’s failure to make an opening statement caused the jury to believe that
the State’s case-in-chief was correct. He argues that the jury’s verdict would have
been different had his lawyer made an opening statement.
      The State asserts that trial counsel’s decisions are presumed to be the result of
sound strategy, that Appellant does not rebut that presumption, and that the record
supports the conclusion that the defense attorney strategically decided to waive his
opening statement. The State argues that an opening statement would have alerted
the prosecution to trial counsel’s strategy to elicit mitigating evidence during cross-
examination of the prosecution’s witnesses. Further, the State contends that there
was overwhelming evidence to justify Appellant’s sentence and that Appellant has
not shown how the outcome would have been different if his trial counsel had made
an opening statement.


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      We agree with the State. Appellant has not shown that his trial counsel’s
representation fell below an objective standard of reasonableness. Choosing not to
make an opening statement is inherently a tactical decision. Standerford v. State,
928 S.W.2d 688, 697 (Tex. App.—Fort Worth 1996, no pet.) (holding trial counsel
clearly made a tactical decision to waive opening statement because an opening
statement would have given the State a preview of the defense’s strategy). Further,
in the punishment phase, Appellant’s attorney successfully elicited mitigating
testimony from the prosecution’s punishment witnesses. For example, counsel
produced testimony from Appellant’s mother, a State’s witness, that Appellant had
never struck her, that he was helpful around the house, that he trimmed the trees, and
that he worked on her car. Moreover, in closing, trial counsel argued that Appellant
was not a violent person and that the injury was minor and that, therefore, the
punishment should be assessed at the minimum of twenty-five years. Additionally,
the record is silent as to why Appellant’s counsel decided not to make an opening
statement. Thus, Appellant has not overcome the presumption that, when his
counsel did not give an opening statement, he was acting within the wide range of
reasonable assistance. We hold that Appellant has not shown that trial counsel was
deficient; therefore, he has not met the first prong of Strickland. Because Appellant
has not met his burden under the first prong of Strickland, we need not discuss the
second prong. We overrule Appellant’s sole point of error.
      We affirm the judgment of the trial court.




September 17, 2015                                  JIM R. WRIGHT
Do not publish. See TEX. R. APP. P. 47.2(b).        CHIEF JUSTICE
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

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