Benjamin Rhodes v. The State of Texas--Appeal from 6th District Court of Lamar County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-03-00162-CR

______________________________

BENJAMIN SHANNON RHODES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 6th Judicial District Court

Lamar County, Texas

Trial Court No. 17976

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

Benjamin Shannon Rhodes appeals from his conviction by a jury for manslaughter. The jury assessed his punishment at ten years' imprisonment and recommended Rhodes be placed on community supervision. The court sentenced Rhodes in accordance with the jury's verdict and placed him on community supervision for ten years.

The record shows that the victim, Michael Borders, confronted his ex-wife at a nightclub in a jealous rage. She was at a table with Rhodes, Rhodes' girlfriend, and several others. The record also shows that Rhodes had been told Borders had knocked the windshield out of Borders' ex-wife's car. Rhodes was about fifteen years older than Borders and testified he had known Borders all his life. Rhodes weighed about 170 pounds, while Borders weighed 285 pounds. Rhodes testified that Borders threatened him on the night in question and that he went outside the nightclub with Borders because Rhodes thought he could calm down Borders if they were in a more private area. There was testimony that others, including two of Borders' friends, followed them outside. Rhodes testified that, after they got outside, he became afraid and pulled out his knife. Borders hit Rhodes in the face and knocked him down, partially under a car. At some point, Rhodes cut Borders on the arm, and after Borders was on the ground, cut him on the leg. Borders was taken to a hospital, but the leg injury severed the femoral artery, and he bled to death. The evidence also shows that Rhodes sustained a puncture wound to an arm during the fight that severed a major artery, but the cause of that injury is unclear. The medical testimony was that, if Rhodes had not received prompt treatment by a tourniquet, he would have bled to death.

Rhodes contends he received ineffective assistance of counsel during the trial of this cause. Specifically, he contends counsel was ineffective for failing to cross-examine Mike Byrd, one of Borders' companions, about conflicting statements, first to police officer Kevin Jenkins, at the scene, that Rhodes was defending himself when he drew his knife; and second, at trial, that Rhodes drew the knife before any punch was thrown.

Rhodes also contends counsel was ineffective for failing to call a material witness, Pam Dill. Rhodes contends this witness was interviewed by the police after the altercation and told the officers she did not see Rhodes with a knife while he and Borders were fighting.

The standard of testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). To prevail on this claim, an appellant must prove by a preponderance of the evidence (1) that his or her counsel's representation fell below an objective standard of reasonableness, and (2) that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687; Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999). To meet this burden, the appellant must prove that the attorney's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for the attorney's deficiency, the result of the trial would have been different. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Under this standard, a claimant must prove that counsel's representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 687.

As far as strategic or tactical reasons for counsel's action or inaction, in the absence of direct evidence of counsel's reasons for the challenged conduct, an appellate court will assume a strategic motivation if any can be imagined. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). We will not conclude the challenged conduct constitutes deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it. Id.; see Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).

Rhodes contends the inconsistent statement made by Byrd to Jenkins was contained in Jenkins' written report. We note first that Jenkins did not testify, and second, there is no indication his report was ever presented to the jury or introduced into evidence. Further, counsel has directed us to no location in the record that would support his contention regarding the contents of that report. Likewise, counsel has not directed us to any location in the record that would support his contention regarding Dill's statements to the police. In such a situation, the record does not support the contentions made, and we cannot meaningfully address the issue.

Even assuming these statements were made by Byrd and Dill, in the absence of any explanation by trial counsel of his reasons for not examining these witnesses on these issues, it would be difficult to find he had no conceivable strategic reason for not doing so. The contention of error is overruled.

We affirm the judgment.

Donald R. Ross

Justice

Date Submitted: October 11, 2004

Date Decided: October 28, 2004

Do Not Publish