COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00232-CR
SHERALYN TORODE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
TRIAL COURT NO. CR12543
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MEMORANDUM OPINION1
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After a bench trial, the trial court convicted Appellant Sheralyn Torode of
endangering a child and sentenced her to twenty-four months’ confinement in a
state jail facility. Tex. Penal Code Ann. § 22.041(c) (West 2011). In one point,
Appellant contends she received ineffective assistance of counsel because her
trial counsel failed to make an opening statement. We affirm.
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See Tex. R. App. P. 47.4.
Facts
A three-year-old child who was in Appellant’s primary custody tested
positive for methamphetamine. There was evidence Appellant had used
methamphetamine, that Appellant was aware the child was being taken to a
house where methamphetamine was being cooked, and that Appellant had
knowingly left the child with a person who used methamphetamine. There was
also evidence Appellant regularly possessed methamphetamine in the presence
of the child.
Complaint on Appeal
In one point, Appellant contends she received ineffective assistance of
counsel. Specifically, she complains about trial counsel’s failure to make an
opening statement.
To establish ineffective assistance of counsel, Appellant must show by a
preponderance of the evidence that her counsel’s representation was deficient
and that the deficiency prejudiced the defense. See 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). An ineffective-assistance claim must be “firmly
founded in the record,” and “the record must affirmatively demonstrate” the
meritorious nature of the claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex.
Crim. App. 1999).
Direct appeal is usually an inadequate vehicle for raising an ineffective-
assistance-of-counsel claim because the record is generally undeveloped.
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Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012); Thompson,
9 S.W.3d at 813–14. In evaluating the effectiveness of counsel under the
deficient-performance prong, we look to the totality of the representation and the
particular circumstances of each case. Thompson, 9 S.W.3d at 813. The issue
is whether counsel’s assistance was reasonable under all the 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. Review of
counsel’s representation is highly deferential, and the reviewing court indulges a
strong presumption that counsel’s conduct was not deficient. Nava, 415 S.W.3d
at 307–08.
It is not appropriate for an appellate court to simply infer ineffective
assistance based upon unclear portions of the record or when counsel’s reasons
for failing to do something do not appear in the record. Menefield, 363 S.W.3d at
593; 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 is not
given that opportunity, we should not conclude that counsel’s performance was
deficient unless the challenged conduct was “so outrageous that no competent
attorney would have engaged in it.” Nava, 415 S.W.3d at 308.
Whether to make an opening statement is an inherently tactical decision.
Taylor v. State, 947 S.W.2d 698, 704 (Tex. App.—Fort Worth 1997, pet. ref’d).
Giving an opening statement may give the State a preview of defense counsel’s
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strategy. See Standerford v. State, 928 S.W.2d 688, 697 (Tex. App.—Fort Worth
1996, no pet.). The failure to make an opening statement is not conduct so
outrageous that no competent attorney would have engaged in it. See Darkins v.
State, 430 S.W.3d 559, 570 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d);
Taylor, 947 S.W.2d at 704 (stating that defense counsel’s tactical decisions did
not render his performance so deficient that he was not functioning as the
counsel guaranteed by the Sixth Amendment). Because Appellant has not met
the deficient performance prong under Strickland, we hold that Appellant has
failed to demonstrate that she received ineffective assistance from her trial
counsel. See Strickland, 466 U.S. at 687, Darkins, 430 S.W.3d at 570, Taylor,
947 S.W.2d at 704. We overrule Appellant’s sole point.
Conclusion
Having overruled Appellant’s sole point, we affirm the trial court’s
judgment.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: GARDNER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 25, 2015
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