By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Not ineffective assistance to fail to
object to a confession that contained evidence of defense of coercion (00-3-22).
On July 20, 2000, the Houston Fourteenth District Court of Appeals held that
in a criminal trial defense counsel did not render ineffective assistance by
failing to object to a confession of a certified juvenile on the ground it was
not obtained in a juvenile processing office when the confession contained
evidence of coercion, which was the sole defense in the case.
00-3-22. Rhone v. State, UNPUBLISHED, No. 14-98-01298-CR, 2000 WL 991559, 2000
Tex.App.Lexis ___ (Tex.App.--Houston [14th Dist.] 7/20/00) [Texas Juvenile Law
... (4th Ed. 1996)].
Facts: Over his plea of not guilty, a jury found appellant, Derek Jermaine
Rhone, guilty of capital murder in the course of committing a robbery. See Tex.
Pen.Code Ann. s 19.03(a)(2) (Vernon 1994). The jury assessed punishment at life
imprisonment in the Texas Department of Criminal Justice, Institutional
Division. Appellant appeals his conviction on seven points of error. We affirm
the trial court's judgment for the following reasons: (1) appellant received
effective assistance of counsel at trial; (2) legally and factually sufficient
evidence supports appellant's conviction; (3) we find no fundamental error in
the jury charge; and (4) the record does not support that the trial court
improperly communicated with the jury during deliberations.
Appellant's friend, Tamika, went to a flea market where she met the complainant
and exchanged telephone numbers with him. Later, Tamika overheard appellant and
her brothers talking about their need for some "quick money," and she
told them about the complainant. Tamika invited the complainant over to her
apartment. While they were waiting for him, appellant told his friends that they
were going to rob a guy coming over, the complainant. Appellant and most of his
friends were juveniles.
When the complainant arrived, appellant pointed a gun at him and demanded that
he surrender his possessions. One of appellant's friends hit the complainant in
the mouth and took his necklace. While appellant continued to hold the gun,
appellant's friends rushed up to the complainant and took his beeper, jewelry,
shoes, and wallet. One of appellant's cohorts decided that they had to kill the
complainant because he had seen their faces, and they tied him up and dumped him
in the trunk of a car. They drove to a dead-end street where appellant's cohorts
heard appellant fire several gunshots.
After he returned to the apartment, appellant told Tamika that he shot the
complainant. He also gave a voluntary written statement to the police admitting
that he shot the complainant. However, at trial, appellant claimed one of his
friends, Edward, coerced him into committing the crime, and threatened to kill
him if he did not kill the complainant.
Held: Affirmed.
Opinion Text: In his first point of error, appellant argues that he received
ineffective assistance of counsel at trial. Appellant asserts that his counsel
was ineffective because he failed to object when appellant's voluntary written
statement was admitted into evidence. We disagree.
For counsel to be ineffective at trial, the attorney's actions must meet the
standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984), and adopted by Hernandez v. State, 726 S.W.2d 53, 57
(Tex.Crim.App.1986). To meet this standard, appellant must show that his
counsel's representation fell below an objective standard of reasonableness, and
that but for counsel's unprofessional errors, the result of the proceeding would
have been different. See Hernandez, 726 S.W.2d at 55.
Appellant carries the burden to prove his trial counsel was ineffective by a
preponderance of the evidence. See Cannon v. State, 668 S.W.2d 401, 403
(Tex.Crim.App.1984). Counsel's conduct is strongly presumed to fall within the
wide range of reasonable professional assistance, and appellant must overcome
the presumption that the challenged action might be considered sound trial st
rategy. See Strickland, 466 U.S. at 688-89. To overcome this presumption, a
claim for ineffective assistance of counsel must be firmly founded and
affirmatively demonstrated in record. See McFarland v. State, 928 S.W.2d 482,
500 (Tex.Crim.App.1996). The record is best developed by a collateral attack,
such as an application for a writ of habeas corpus or a motion for new trial.
See Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App.1998); Kemp v. State,
892 S.W.2d 112, 115 (Tex.App.--Houston [1 st Dist.] 1994, pet ref'd).
Appellant has not met his burden; his complaints about trial counsel do not
satisfy the Strickland test. Appellant argues his voluntary statement was
illegally obtained in violation of section 52.02(a) of the Texas Family Code.
[FN1] He argues that the police officer improperly obtained his written
confession at the homicide division rather than a judicial proceeding office,
and his trial counsel should have either objected when it was admitted into
evidence or filed a motion to suppress. The record is silent as to why trial
counsel failed to file a motion to suppress or to object to the statement's
admission into evidence at trial. However, the record does reveal that
appellant's only defense at trial was duress. The only evidence supporting
duress was appellant's confession. In that confession, he admitted shooting the
complainant, but claimed he did so only out of duress from Edward. Thus, the
record contains a strong indication that appellant's counsel decided not to
object to the admission of the confession because it was the only evidence
raising the defense of duress, and appellant was able to introduce this evidence
without being cross examined on it.
FN1. Section 52.02 states in relevant part: " ... [A] person taking a child
into custody ... shall:
(2) bring the child before the office or official designated by the juvenile
court if there is probable cause to believe that the child engaged in delinquent
conduct or conduct indicating a need for supervision;
(3) bring the child to a detention facility designated by the juvenile court
..." Tex. Fam.Code Ann. s 52.02(a) (Vernon Supp.2000) (emphasis added).
In short, because the record is silent as to counsel's trial strategy, but does
reveal a reason that trial counsel probably did not object, (1) appellant has
not overcome the presumption that trial counsel acted with reasonable
professional judgment, and (2) we are unable to conclude that trial counsel's
conduct fell below an objective standard of reasonableness. See Moore v. State,
983 S.W.2d 15, 21 (Tex.App.--Houston [14 th Dist.] 1998, no pet.) (holding that
defendant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy). Appellant's first
point of error is overruled.