Donald Gene Rhoades v. State
11-13-00345-CR
| Tex. App. | Sep 17, 2015Background
- Appellant Donald Gene Rhoades was indicted for injury to an elderly person; the indictment included one enhancement and the State later filed additional enhancement and habitual-offender notices.
- A jury convicted Rhoades of injury to an elderly person and, after the punishment phase, found one enhancement and one habitual count true.
- The jury assessed punishment at 99 years’ confinement; the trial court sentenced accordingly.
- On direct appeal, Rhoades raised a single issue: his trial counsel was ineffective for declining to make an opening statement during the punishment phase.
- Trial counsel told the court, "we’d reserve our opening," did not give an opening statement, but later elicited mitigating testimony from State witnesses (including appellant’s mother) and argued for a 25-year minimum sentence in closing.
- The Eleventh Court of Appeals affirmed, holding Rhoades failed to show counsel’s performance was deficient under Strickland.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for waiving an opening statement at punishment | Rhoades: counsel effectively forgot and thus did not employ trial strategy; waiver deprived him of a valuable statutory right and likely affected the jury’s view | State: waiver was presumptively tactical (avoided revealing mitigation strategy); counsel elicited mitigating testimony and argued mitigation at closing; overwhelming evidence supported sentence | Court: Waiver was a tactical decision; record silent as to strategy but shows mitigating evidence elicited and closing argument; defendant failed to show deficient performance under Strickland |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (ineffective-assistance standard)
- Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999) (ineffective-assistance framework)
- Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986) (ineffective-assistance principles)
- Tong v. State, 25 S.W.3d 707 (Tex. Crim. App. 2000) (presumption counsel’s conduct within wide range of professional assistance)
- Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) (record-silence rule on strategy)
- Standerford v. State, 928 S.W.2d 688 (Tex. App.—Fort Worth 1996) (waiver of opening can be tactical)