                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00232-CR


SHERALYN TORODE                                                     APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
                     TRIAL COURT NO. CR12543

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                        MEMORANDUM OPINION1

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      After a bench trial, the trial court convicted Appellant Sheralyn Torode of

endangering a child and sentenced her to twenty-four months’ confinement in a

state jail facility. Tex. Penal Code Ann. § 22.041(c) (West 2011). In one point,

Appellant contends she received ineffective assistance of counsel because her

trial counsel failed to make an opening statement. We affirm.


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       See Tex. R. App. P. 47.4.
                                      Facts

       A three-year-old child who was in Appellant’s primary custody tested

positive for methamphetamine.       There was evidence Appellant had used

methamphetamine, that Appellant was aware the child was being taken to a

house where methamphetamine was being cooked, and that Appellant had

knowingly left the child with a person who used methamphetamine. There was

also evidence Appellant regularly possessed methamphetamine in the presence

of the child.

                              Complaint on Appeal

       In one point, Appellant contends she received ineffective assistance of

counsel.    Specifically, she complains about trial counsel’s failure to make an

opening statement.

       To establish ineffective assistance of counsel, Appellant must show by a

preponderance of the evidence that her counsel’s representation was deficient

and that the deficiency prejudiced the defense. See Strickland v. Washington,

466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d

289, 307 (Tex. Crim. App. 2013). An ineffective-assistance claim must be “firmly

founded in the record,” and “the record must affirmatively demonstrate” the

meritorious nature of the claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999).

       Direct appeal is usually an inadequate vehicle for raising an ineffective-

assistance-of-counsel claim because the record is generally undeveloped.


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Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012); Thompson,

9 S.W.3d at 813–14.      In evaluating the effectiveness of counsel under the

deficient-performance prong, we look to the totality of the representation and the

particular circumstances of each case. Thompson, 9 S.W.3d at 813. The issue

is whether counsel’s assistance was reasonable under all the circumstances and

prevailing professional norms at the time of the alleged error. See Strickland,

466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307. Review of

counsel’s representation is highly deferential, and the reviewing court indulges a

strong presumption that counsel’s conduct was not deficient. Nava, 415 S.W.3d

at 307–08.

      It is not appropriate for an appellate court to simply infer ineffective

assistance based upon unclear portions of the record or when counsel’s reasons

for failing to do something do not appear in the record. Menefield, 363 S.W.3d at

593; Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial counsel

“should ordinarily be afforded an opportunity to explain his actions before being

denounced as ineffective.” Menefield, 363 S.W.3d at 593. If trial counsel is not

given that opportunity, we should not conclude that counsel’s performance was

deficient unless the challenged conduct was “so outrageous that no competent

attorney would have engaged in it.” Nava, 415 S.W.3d at 308.

      Whether to make an opening statement is an inherently tactical decision.

Taylor v. State, 947 S.W.2d 698, 704 (Tex. App.—Fort Worth 1997, pet. ref’d).

Giving an opening statement may give the State a preview of defense counsel’s


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strategy. See Standerford v. State, 928 S.W.2d 688, 697 (Tex. App.—Fort Worth

1996, no pet.). The failure to make an opening statement is not conduct so

outrageous that no competent attorney would have engaged in it. See Darkins v.

State, 430 S.W.3d 559, 570 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d);

Taylor, 947 S.W.2d at 704 (stating that defense counsel’s tactical decisions did

not render his performance so deficient that he was not functioning as the

counsel guaranteed by the Sixth Amendment). Because Appellant has not met

the deficient performance prong under Strickland, we hold that Appellant has

failed to demonstrate that she received ineffective assistance from her trial

counsel. See Strickland, 466 U.S. at 687, Darkins, 430 S.W.3d at 570, Taylor,

947 S.W.2d at 704. We overrule Appellant’s sole point.

                                 Conclusion

      Having overruled Appellant’s sole point, we affirm the trial court’s

judgment.



                                                 /s/ Anne Gardner
                                                 ANNE GARDNER
                                                 JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 25, 2015




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