Wade Earl Cone v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00188-CR
___________________________
WADE EARL CONE, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 355th District Court
Hood County, Texas
Trial Court No. CR12683
Before Kerr, Birdwell, and Bassel, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
In 2014, the trial court placed Appellant Wade Earl Cone on deferred-
adjudication community supervision for eight years for the second-degree felony
offense of delivery of a controlled substance in the amount of more than one gram
but less than four grams. See Tex. Health & Safety Code Ann. § 481.113(c). In 2022,
about six weeks shy of Cone’s completing his term of community supervision, 1 the
State filed a motion to proceed to an adjudication. Following a hearing, the trial court
found true the State’s allegations that, in violation of Cone’s conditions of community
supervision, Cone had (1) violated the law by trespassing on a neighbor’s property
with a deadly weapon and (2) used alcohol. The trial court adjudicated Cone guilty and
sentenced him to twenty years’ imprisonment, the maximum for a second-degree
felony. See Tex. Penal Code Ann. § 12.33. Cone appeals. In one point, Cone asserts
that his trial counsel rendered ineffective assistance. We disagree, overrule Cone’s
point, and affirm the trial court’s judgment.
I. Cone’s Point
In a single point, Cone contends that his trial counsel rendered ineffective
assistance. Specifically, Cone contends that
• his trial counsel did not make an opening statement,
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In 2016, the State filed a motion to adjudicate alleging that Cone had violated
two community-supervision conditions. Cone stipulated that the motion’s allegations
were true, waived his right to a hearing, and asked the trial judge to continue his
community supervision. The trial judge agreed but added three new conditions.
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• his trial counsel failed to prepare him for the adjudication hearing,
• he did not have an opportunity to gather his own witnesses,
• trial counsel did not prepare the one witness who testified on his behalf,
and
• trial counsel did not advise him of his right to testify or to remain silent.
In the trial court, Cone raised the issue of ineffective assistance of counsel in a
motion for new trial, and the trial court held an evidentiary hearing on it. But at the
hearing, Cone’s trial counsel did not testify. The trial court overruled Cone’s motion.
II. Ineffective Assistance of Counsel
The Sixth Amendment guarantees a criminal defendant the effective assistance
of counsel. Ex parte Scott, 541 S.W.3d 104, 114 (Tex. Crim. App. 2017); see U.S. Const.
amend. VI. To establish ineffective assistance, an appellant must prove by a
preponderance of the evidence that his counsel’s representation was deficient and that
the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013);
Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). The record must
affirmatively demonstrate that the claim has merit. Thompson v. State, 9 S.W.3d 808, 813
(Tex. Crim. App. 1999).
In evaluating counsel’s effectiveness under the deficient-performance prong,
we review the totality of the representation and the particular circumstances of the
case to determine whether counsel provided reasonable assistance under all the
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circumstances and prevailing professional norms at the time of the alleged error. See
Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307; Thompson, 9S.W.3d at 813–14. Our review of counsel’s representation is highly deferential, and we
indulge a strong presumption that counsel’s conduct was not deficient. Nava, 415
S.W.3d at 307–08.
An appellate court may not infer ineffective assistance simply from an unclear
record or a record that does not show why counsel failed to do something. Menefield v.
State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012); Mata v. State, 226 S.W.3d 425, 432
(Tex. Crim. App. 2007). Trial counsel “should ordinarily be afforded an opportunity
to explain his actions before being denounced as ineffective.” Menefield, 363 S.W.3d at
593. If trial counsel did not have that opportunity, we should not conclude that
counsel performed deficiently unless the challenged conduct was “so outrageous that
no competent attorney would have engaged in it.” Nava, 415 S.W.3d at 308. Direct
appeal is usually inadequate for raising an ineffective-assistance-of-counsel claim
because the record generally does not show counsel’s reasons for any alleged deficient
performance. See Menefield, 363 S.W.3d at 592–93; Thompson, 9 S.W.3d at 813–14.
Strickland’s prejudice prong requires a showing that counsel’s errors were so
serious that they deprived the defendant of a fair trial—that is, a trial with a reliable
result. 466 U.S. at 687, 104 S. Ct. at 2064. In other words, an appellant must show a
reasonable probability that the proceeding would have turned out differently without
the deficient performance. Id. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at 308. A
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“reasonable probability” is a probability sufficient to undermine confidence in the
outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at 308. We
must ultimately focus on examining the fundamental fairness of the proceeding in
which the result is being challenged. Strickland, 466 U.S. at 696, 104 S. Ct. at 2069.
“[A] verdict or conclusion only weakly supported by the record is more likely to have
been affected by errors than one with overwhelming record support.” Id., 104 S. Ct. at
2069.
III. Discussion
Although Cone had an evidentiary hearing on his motion for new trial, that
hearing did not help him.
For example, Cone testified at the hearing, but the trial court—acting as the
factfinder—did not have to believe anything Cone said. See Colyer v. State, 428 S.W.3d
117, 122 (Tex. Crim. App. 2014); Evans v. State, 202 S.W.3d 158, 163 (Tex. Crim. App.
2006). Based on the trial court’s ruling, it apparently did not find Cone credible.
And although Cone had an evidentiary hearing, his trial counsel did not testify.
Thus, despite the evidentiary hearing, trial counsel has nevertheless not been afforded
an opportunity to explain his actions. See Menefield, 363 S.W.3d at 593. Under these
circumstances, except for outrageous errors—something that our record does not
show—we should not conclude that counsel performed deficiently. See Nava, 415
S.W.3d at 308.
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Cone also notes that counsel failed to make an opening statement. But whether
to do so is an inherently tactical decision based on the way a trial is unfolding, the trial
strategy employed, the experience and judgment of the defense attorney, and other
factors. Taylor v. State, 947 S.W.2d 698, 704 (Tex. App.—Fort Worth 1997, pet. ref’d)
(per curiam). Here, all Cone does is point to something that his counsel did not do
during the hearing, not explaining why it constitutes deficient performance or how it
harmed his case. We thus conclude that Cone has not shown that his attorney’s not
making an opening statement rendered his performance either deficient or harmful.
See id.; see also McMahon v. State, Nos. 02-19-00144-CR, 02-19-00145-CR, 2020 WL
579103, at *7 (Tex. App.—Fort Worth Feb. 6, 2020, pet. ref’d) (mem. op., not
designated for publication).
Cone’s other complaints are not about what happened at the adjudication
hearing. Rather, Cone complains about what trial counsel allegedly did not do before
the hearing.
For example, Cone complains that his counsel did not prepare him for the
hearing. The record tends to belie Cone’s assertion. At the start of the hearing, Cone
personally told the trial court that he understood that (1) the punishment range was 2
to 20 years’ imprisonment and a fine not to exceed $10,000 and (2) the State had filed
a motion to proceed to an adjudication of guilt. Cone also personally entered his own
pleas of “not true” to the State’s allegations. During these exchanges, Cone did not
protest that he was unprepared. In any event, Cone does not explain in what way
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counsel did not prepare him or how any alleged failure to prepare him made any
difference.
Cone next complains that he was not given an opportunity to gather his own
witnesses. But Cone neither identifies which witnesses he wanted to call nor sets out
what they would have said.
Cone further complains that his counsel did not prepare the one witness that
counsel had called. Yet Cone does not explain why he contends that his witness was
not adequately prepared or how additional preparation would have benefited him.
Finally, Cone complains that his counsel did not advise him of his right to
testify or to remain silent. At the hearing on the State’s motion to proceed to an
adjudication, Cone did not testify. Significantly, Cone does not assert that he would
have exercised his right to testify if trial counsel had properly advised him. Nor does
he set out what his testimony would have been if he had exercised that right.
We hold that Cone has not shown that his trial counsel’s performance was
deficient or—assuming it was deficient—how any deficiency prejudiced him. See
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Nava, 415 S.W.3d at 307; Hernandez, 988
S.W.2d at 770. We overrule Cone’s point.
IV. Conclusion
Having overruled Cone’s point, we affirm the trial court’s judgment.
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/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: May 11, 2023
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