Bone v. State

• Decision Date: 19 June 2002
• Docket Number: No. 0473-00.,0473-00.
• Citation: 77 S.W.3d 828
• Parties: Joe Bill BONE, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

77 S.W.3d 828

Joe Bill BONE, Appellant, v. The STATE of Texas.

No. 0473-00.

Court of Criminal Appeals of Texas.

June 19, 2002.

David J. Eveld, Seguin, for Appellant.

Frank Follis, Asst. DA, Seguin, Matthew Paul, State's Atty., Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the Court, in which KELLER, P.J., and MEYERS, WOMACK, JOHNSON, KEASLER, HERVEY and HOLCOMB, JJ., joined.

We are once again asked whether an appellate court may reverse a conviction on ineffective assistance of counsel grounds when counsel's actions or omissions may have been based upon tactical decisions, but the record contains no specific explanation for counsel's decisions.¹ Once again we answer that question "no." Therefore, we reverse the judgment of the Fourth Court of Appeals, which found ineffective assistance in this case, Bone v. State, 12 S.W.3d 521 (Tex.App.-San Antonio 1999), and affirm the trial court's judgment and sentence.

I.

Appellant was charged with felony D.W.I. which was enhanced with prior convictions for burglary and possession of a prohibited weapon. At trial, two DPS officers testified that, while they were patrolling the area east of Seguin on the evening of August 16, 1996, they saw a pick-up, driven by appellant, cross the yellow center stripe as the vehicle approached them. They turned around, followed, and watched as appellant stopped at a fireworks stand. The officers testified that appellant got out of the truck and walked cautiously and deliberately as the officers approached. When the officers requested identification, appellant gave them a driver's license that had expired in 1994. The officers testified that appellant's eyes were bloodshot, and that he smelled of alcohol, spoke very slowly and slurred his words. After conducting field sobriety tests, the officers concluded that appellant was intoxicated, and they arrested him. At the station, appellant was videotaped, but refused to perform any further physical tests. He also declined to take an intoxilyzer test. When inventorying appellant's truck, the officers found two cold 16 ounce beer cans on the front seat. One can was full, but the other had fallen and spilled on the floorboard.

Appellant testified and admitted that he had three prior DWI convictions, beginning in 1991. He stated that he had not done well on the field test because he had an old leg injury. He explained that his eyes were bloodshot because he had allergies, and he slurred his words because he was wearing dentures. However, he admitted that he drank three beers before being stopped. He said that the beer spilled on the floorboard when he lifted his cousin out of her wheelchair and put her into the truck to take her to visit a boyfriend earlier in the evening. He also admitted that his license had been suspended for a prior DWI and he had simply not yet renewed it.

On cross-examination, the prosecutor impeached appellant's credibility under Rule 609 with evidence of his prior felony convictions for burglary, concealing stolen property, and possession of a prohibited weapon.

Based on this evidence, the jury convicted appellant of felony DWI. The State offered no new evidence at the punishment hearing. Appellant testified again and explained that he was on parole for DWI when he was arrested for this offense. Consequently, he was re-arrested on a parole violator's warrant and after a parole hearing, was returned to prison to serve another year on his prior DWI conviction. Appellant explained that he wrote the D.A. to try to take care of the present charges. He testified that, "I knew I was going back to TDC and I tried to get this county to prosecute me on this charge, so that when I did get out of TDC, I wouldn't have nothing on my back and I could, you know, start my life over ... [but] until I was released from TDC, there was never any answer from the D.A.'s Office here. I wrote letters and made phone calls and everything I could possibly ... do to face these charges while I was incarcerated and I have gotten no response." He also contacted TDCJ staff counsel for help in resolving this charge before he was released. Those efforts failed. Appellant further explained that he had sought treatment for his alcohol problem and was currently in a HOPE program, that he reported to his parole officer daily, and had gotten a job and a family. He told the jury:

I have taken a big step. I am trying to do what I am supposed to be doing.

I am 42 years old and it is—and it is the end of the road; you know. I'm going downhill and I have taken every step possible to try to see that I don't drink anymore. I have done what I am supposed to be doing and I have tried to take care of these charges in numerous ways.

Nonetheless, on cross-examination, appellant admitted to spending most of his adult life in prison. When confronted with a March 19, 1997, bailiff's certificate of failure to appear in court, taken from the clerk's file in this case, appellant explained that he came to Seguin for a court appearance, but that it was snowy and icy, and the court was closed. He said that a clerk told him to go back home and that someone would send him a letter about when to return. He then again admitted to having had a drinking problem:

Well, I have been around alcohol all my life. My daddy sold beer for the first 16 years of my life. It has always been there and it is a disease. It is like, you know,—It is a disease. I don't know why, you know, that I picked a beer up when I knew I didn't want it, but it happens and so far, since 1996, I haven't had any alcohol. Like I said, I am currently in programs; I am still doing what I am supposed to do on my parole; everything.

Appellant then called Ms. Juanita Barnhill, with whom he was living, and she testified that they had a family relationship, and that appellant acted like a father to her teen-aged children. He helped provide for them and was involved in their school activities. She testified that appellant didn't drink, reported to his parole officer, and had been attending meetings for help with his drinking problem.

During her closing argument, appellant's counsel stated, inter alia:

[I]t brings to mind the idea sometimes we get about throw-away people. We have so much in our society that is thrown away and, not to make any type of belittling comparison, we recycle things now ... we are still a society that believes in and maybe unconsciously throws away things.... Mr. Bone was very honest with you about his past and the things that have happened.... He has turned around his life. I think all of you remember during the jury selection you were asked as an entire panel how many people's lives had been affected in some way or another by alcoholism and it is getting more and more when you ask that question.... Then we have the scenes of accidents on the road. It is a problem. No one denies: Mr. Bone nor I are denying it is a problem and it takes lives; it ruins lives and it maims lives, but by the same token, we need to balance this with, "Is Mr. Bone's life a throw-away life?"

During his closing argument, the prosecutor did not request a specific sentence, but ended: "I think you have a right as a society to protect yourself; protect the citizens; and to take people off the street who do these things; and we hope you will take him off the street for a long, long time." The jury returned with a sentence of 90 years.

On appeal, appellant argued that his trial counsel performed deficiently by: "(1) failing to pursue prejudice among prospective jurors; (2) making offensive remarks regarding drinking and driving; (3) failing to offer any significant evidence in his favor during the punishment phase of the trial; (4) offering evidence during the punishment phase of the trial that was harmful to his credibility; (5) failing to make the correct objection to the State's attempt to offer into evidence a document which weighed directly on his credibility; and (6) making statements that affirmatively prejudiced him."² The court of appeals agreed and concluded "that trial counsel was deficient, and her deficient performance clearly prejudiced appellant. Because counsel's efforts were so minimal throughout the trial, we reverse and remand."³

II.

The court of appeals correctly states that the legal standard set out in Strickland v. Washington⁴ applies to appellant's claim.⁵ To prevail on his claims, appellant must first show that his counsel's performance was deficient.⁶ Specifically, appellant must prove, by a preponderance of the evidence, that his counsel's representation fell below the objective standard of professional norms.⁷ Second, appellant must show that this deficient performance prejudiced his defense.⁸ As this Court explained in Mitchell v. State, "[t]his means that the appellant must show a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different."⁹ A "reasonable probability" is one sufficient to undermine confidence in the outcome.¹⁰

Appellate review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance.¹¹ Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel's conduct was reasonable and professional.¹² As this Court recently explained, rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation: "[i]n the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel."¹³

Although the court of appeals acknowledged these general legal principles, it nonetheless concluded that "this record reveals a total absence of...