Stone v. State

17 S.W.3d 348, 2000 Tex. App. LEXIS 2496, 2000 WL 380102
CourtCourt of Appeals of Texas
DecidedApril 13, 2000
Docket13-97-845-CR
StatusPublished
Cited by131 cases

This text of 17 S.W.3d 348 (Stone v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stone v. State, 17 S.W.3d 348, 2000 Tex. App. LEXIS 2496, 2000 WL 380102 (Tex. Ct. App. 2000).

Opinion

OPINION

DORSEY, Justice.

The issue in this case is whether appellant received ineffective assistance of counsel during his trial for delivery of a controlled substance when his attorney called him to testify and elicited from him testimony regarding a prior murder conviction that the State would not have been allowed to bring up otherwise. We hold that appellant has shown ineffective assistance of counsel and reverse and remand.

Stone was convicted of delivery of a controlled substance after a one-day jury trial and was sentenced to ten years imprisonment and a $10,000 fíne. In 1980, Stone was convicted of murder and served five years in the penitentiary for that crime. During voir dire in the present case, the issue arose of whether the remote murder conviction would be admissible against him in the present case. The court indicated that it would not allow evidence regarding the murder conviction during the guilt-innocence stage of the trial. The State did not attempt to bring it up. However, Stone’s own attorney called Stone to the stand and brought up the prior murder conviction directly. We hold that no reasonably competent attorney could have believed that introducing that evidence amounted to sound trial strategy, and find, therefore, that Stone received ineffective assistance of counsel.

It is common practice for a defense attorney to elicit from his own client evidence regarding a prior conviction when counsel'knows or reasonably believes that if he does not bring it up first, the State will. The belief is that getting the issue out first will “pull the sting” from the impact of its coming from the State. However, in this case, the State could not have introduced evidence of Stone’s prior conviction. Not only did the court indicate at the pre-trial bench conference that he would not allow the evidence during the guilt-innocence portion of the trial, the court would have been required to make that ruling under the applicable law.

Texas Rule of Evidence 609(b) states that evidence of a prior conviction may not be used for the purpose of attacking the credibility of a witness if more than ten years has elapsed since the date of the conviction unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effects. TEX. R. EVID. 609(b). Since the State did not seek to introduce that evidence, the trial court did not make the finding required to allow it. We can see no possible benefit to be gained by Stone “fronting” this issue to the jury, especially when weighed against the facts of this case which made that evidence particularly dangerous for Stone, and in light of the fact that the State would not have been able to introduce evidence about it.

The Texas Court of Criminal Appeals recently detailed the analytical framework for claims of ineffective assistance of counsel:

Texas courts adhere, as we must, to the United States Supreme Court’s two-pronged Strickland test to determine whether counsel’s representation was inadequate so as to violate a defendant’s Sixth Amendment right to counsel. Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App.1986). The defendant must first show that counsel’s per *350 formance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996), ce rt. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997); Ex Parte Menchaca, 854 S.W.2d 128, 131 (Tex.Crim.App.1993). Second, assuming appellant has demonstrated deficient assistance, it is necessary to affirmatively prove prejudice. McFarland v. State, 928 S.W.2d at 500. In other words, appellant must show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Hernandez v. State, 726 S.W.2d at 55. This two-pronged test is the benchmark for judging whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a reliable result. McFarland v. State, 845 S.W.2d 824, 843 (Tex.Crim.App.1992), cert. denied, 508 U.S. 963, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993).
The assessment of whether a defendant received effective assistance of counsel must be made according to the facts of each case. Ex parte Scott, 581 S.W.2d 181, 182 (Tex.Crim.App.1979). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d at 500. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id. Absent both showings an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Ex parte Menchaca, 854 S.W.2d at 131. Appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Cannon v. State, 668 S.W.2d 401, 403 (Tex.Crim.App.1984). An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Ex Parte Fel-ton, 815 S.W.2d 733, 735 (Tex.Crim.App. 1991).

Thompson v. State, 9 S.W.3d 808, 812-13 (Tex.Crim.App.1999).

Our first question is whether Stone’s counsel’s performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Thompson, 9 S.W.3d at 812; McFarland, 928 S.W.2d at 500; Ex Parte Menchaca, 854 S.W.2d at 131. However, before we reach that question, it is necessary to determine whether the record in this case is-adequate to evaluate counsel’s performance. A claim of ineffective assistance must be firmly rooted in the record. Jackson v. State, 877 S.W.2d 768, 771-72 (Tex.Crim.App.1994). A serious obstacle to many such claims is the lack of an adequately developed record. Thompson, 9 S.W.3d at 813-14. In fact, the court of criminal appeals recently spoke to that issue:

A substantial risk of failure accompanies an appellant’s claim of ineffective assistance on direct appeal.

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Cite This Page — Counsel Stack

Bluebook (online)
17 S.W.3d 348, 2000 Tex. App. LEXIS 2496, 2000 WL 380102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stone-v-state-texapp-2000.