Bone v. State, 04-98-00937-CR
| Citation | 12 S.W.3d 521 |
| Decision Date | 24 November 1999 |
| Docket Number | No. 04-98-00937-CR,04-98-00937-CR |
| Parties | (Tex.App.-San Antonio 1999) Joe Bill BONE, Appellant v. The State of TEXAS, Appellee |
| Court | Texas Court of Appeals |
Honorable Dwight E. Peschel, Judge Presiding
[Copyrighted Material Omitted] Sitting: Phil Hardberger, Chief Justice, Tom Rickhoff, Justice, Alma L. Lopez, Justice
O P I N I O N
Opinion by: Tom Rickhoff, Justice
Appellant, Joe Bill Bone, was convicted by a jury of felony driving while intoxicated and sentenced to 90 years. The punishment was enhanced by two prior felonies under the Habitual Felon Statute. He now asserts that his trial defense counsel displayed deficient performance 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. We find 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.
On December 28, 1996, DPS officers Trooper Jeffrey Vajdos and Trooper William Gilliam observed appellant's vehicle traveling east, crossing over the yellow center stripe of Highway 90. The officers pulled him over on suspicion of driving while intoxicated and he produced a license which had expired on May 25, 1994. The officers testified that he had bloodshot eyes, slurred speech, smelled of alcohol, and he admitted to drinking beers prior to driving. The officers conducted field sobriety tests and determined that he was intoxicated. Appellant was arrested and taken to Guadalupe County Jail where he declined to take a breath test and was video taped.
At trial, the State presented the troopers' testimony and a copy of the video tape. Appellant was the sole witness for the defense. With counsel's assistance, he presented two inconsistent theories of defense: (1) that he should be believed because he is a compliant career criminal who has spent much of his life in prison without ever requesting a jury trial, and (2) that he was more believable than the two troopers. The two prior convictions for driving while intoxicated were stipulated to by counsel, and after the jury found him guilty of felony driving while intoxicated, appellant pled "true" to the conviction of felony burglary in 1978 and "true" to the conviction of felony possession of a prohibited weapon in 1993. At punishment the State offered no new evidence and re-offered all evidence heard in the guilt and innocence phase of the trial. Appellant and Juanita Barnhill testified on his behalf. The jury assessed punishment at 90 years, from a possible range of 25-99 years.
To prove ineffective assistance of counsel, appellant must show: (1) trial counsel's performance was deficient in that counsel made such serious errors he or she was not functioning effectively as counsel; and (2) the deficient performance prejudiced the defense to such a degree that the defendant was deprived of a fair trial. See Strickland v. Washington, 466 U.S. 668, 690 (1984). The constitutional right to effective assistance does not mean errorless counsel. See Brown v. State, 974 S.W.2d 289, 292 (Tex. App.-San Antonio 1998, pet. ref'd). Appellant must overcome the presumption that trial counsel rendered adequate assistance, and it is incumbent on the defendant to identify those acts or omissions which do not amount to reasonable professional judgment. See Strickland, 466 U.S. at 689. 104 S.Ct. 2052.
We judge whether appellant meets the Strickland standard by reviewing the "totality of the representation" rather than the isolated acts or omissions. See Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). The Strickland test is applied without the benefit of hindsight, and the allegations will be sustained only if they are affirmatively established in the record. See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). Recently, we have received additional guidance from the Court of Criminal Appeals in Thompson v. State, 9 S.W.3d 808(Tex.Crim.App.1999), "an appellate court should be especially hesitant to declare counsel ineffective based on a single alleged miscalculation during what amounts to otherwise satisfactory representations, especially when the record provides no discernible explanation of the motivation behind counsel's actions." Id. at 813. Apparently, "the substantial risk of failure" that accompanies an appellant's claim of ineffective assistance on direct appeal is increasing. Id. at 813. Nevertheless, even under this stringent burden,ineffectiveness of counsel does exist when the effect of trial counsel's errors undermines the concept of a fair trial. See Brown, 974 S.W.2d at 292. Unlike Thompson where the record on direct appeal was simply undeveloped and cannot adequately reflect the failings of trial counsel, this record reveals a total absence of advocacy skills and even the minimum effort expended on appellant's behalf was misguided.
Trial counsel was deficient during voir dire. Counsel failed to make any inquiries that would shed light on whether any of the jury members were biased. In attempting to discover bias, counsel is expected to determine if any prospective juror either knew or was related to the prosecutor or any of the State's witnesses. See Montez v. State, 824 S.W.2d 308, 310 (Tex. App.-San Antonio 1992, no pet.). Counsel asked whether the prospective jurors knew the prosecutor conducting voir dire, Mr. Kirkendall, but did not ask whether any juror knew Mr. Follis, the prosecutor who argued for the State at trial. One prospective juror, Mr. Frels, admitted to having an association with Mr. Kirkendall through the little league in Seguin, and trial counsel failed to ask Mr. Frels if that would keep him from giving a fair and honest verdict. Trial counsel also failed to ask if any of the prospective jurors were connected with law enforcement. In addition, no questions were asked to prospective jury members concerning whether they drank, or if they were involved in any organizations that would suggest bias, such as Mothers Against Drunk Driving.
Trial counsel's conduct during voir dire was particularly disturbing in failing to ask specific questions of witnesses who had already shown possible bias in response to the State's questioning. Twenty members of the venire panel raised their hands in response to the State's question whether they or someone they knew were victims of alcohol. Juror Thompson testified that his sister was assaulted by a man who was intoxicated. Five of these individuals, including Juror Thompson, were selected to the jury. Trial counsel was deficient in not making further individual inquiries in order to weed out possible bias. See Montez, 824 S.W.2d at 310.
In addition to showing that trial counsel's performance was deficient, appellant must also show prejudice. See Strickland, 466 U.S. at 690. When considering prejudice to appellant resulting from voir dire, the standard is whether the individual jurors identified would be challengeable for cause based on the statements complained of in the record. See McFarland v. State, 928 S.W.2d 482, 503 (Tex. Crim. App. 1996). All jurors were asked by the State individually if they could be fair and impartial; all jurors said they could. These jurors therefore did not rise to the level of being challengeable for cause. See Cunningham v. State 982 S.W.2d 513 (Tex. App.-San Antonio 1998, no pet.).
Although trial counsel's actions during voir dire do not alone amount to ineffective assistance of counsel, they are relevant to the overriding issue: Whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. See Brown , 974 S.W.2d at 292. Counsel's entire voir dire lasted less than thirty minutes and consisted of a handful of individual questions that were more social than the result of effective trial strategy.
During the punishment phase of the trial, counsel offered the testimony of only the appellant and Juanita Barnhill. In all, the testimony elicited and the evidence brought forth by trial counsel during punishment phase lasted less than 30 minutes. Ms. Barnhill's testimony on direct in its entirety:
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