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 2006-02

Johnathan Todd LeBleu v. State ( 2006 )


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    In The



    Court of Appeals



    Ninth District of Texas at Beaumont



    ____________________



    NO. 09-04-399 CR

    ____________________



    JOHNATHAN TODD LEBLEU, Appellant



    V.



    THE STATE OF TEXAS, Appellee



    On Appeal from the Criminal District Court

    Jefferson County, Texas

    Trial Court Cause No. 90269



    MEMORANDUM OPINION

    A jury found Johnathan LeBleu guilty of aggravated assault on a public servant, a third degree felony. (1) The charge was enhanced by his prior felony conviction for burglary of a habitation, and he was sentenced to three years in prison. On appeal, LeBleu contends his trial counsel rendered ineffective assistance.

    Under Strickland v. Washington, a defendant who claims ineffective assistance of counsel must show counsel's conduct "fell below an objective standard of reasonableness[,]" and there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see also Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). Our review of trial counsel's performance is highly deferential, and there is a strong presumption that counsel's conduct fell within a wide range of reasonable professional assistance. Salinas, 163 S.W.3d at 740. The claim must be "firmly founded in the record," and the record must affirmatively demonstrate the alleged ineffective assistance. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We consider the totality of the representation. Id.

    LeBleu argues his trial counsel was ineffective because he failed to file a motion in limine; failed to subpoena records; failed to object to prejudicial, irrelevant evidence, including an extraneous offense; and introduced into evidence the prejudicial narrative report of the officer. LeBleu also claims counsel failed to prepare him to testify.

    On August 9, 2003, officers Anderson and Lisenby were on patrol around the S & R Lounge in Beaumont, Texas. Anderson asked a driver (LeBleu) in one of the cars in the club's parking lot to turn the stereo down. LeBleu stared at the officer and rubbed his hands back and forth across his thighs. Concerned about LeBleu's nervousness, Anderson asked him to step outside the car. While Anderson was performing a pat-down for weapons, LeBleu covered his front pockets with his hands, used his elbow to strike Anderson in the chest and shoulder, and then fled toward a residential neighborhood. In the ensuing chase and struggle, Anderson fell and "split [his] elbow open[.]" LeBleu struck Anderson two more times that night. While LeBleu was running away, Anderson observed him pull what "looked like little bags of . . . white stuff" out of his pockets and discard them. Officer Lisenby joined in the chase. While Lisenby and LeBleu were struggling on the ground, Anderson sprayed LeBleu in the face with pepper spray to subdue him. All three went to the hospital for their injuries. LeBleu was charged with assault on Anderson, a public servant.

    LeBleu gave a different account of the night's events. He testified he stepped out of his car without any request to do so. He also said he did not have a loud stereo system in his car, and the officers never told him to turn the stereo down. LeBleu testified he took off running when the officer began shining a flashlight in LeBleu's car. He said that after the officers handcuffed him, they punched him in the eye and head, kicked his neck, stomped on his back, hit him with a night stick and flashlight, dragged him while he was down, and "maced" his entire body. LeBleu testified he did not strike the officers first. He explained he ran from the police because he did not want to be caught driving without a driver's license.

    In his brief, LeBleu sets out trial testimony he contends counsel should have objected to or should never have elicited, because the evidence was irrelevant and prejudicial. He also argues counsel compounded the problem by referring to this evidence during closing argument. Some of the "objectionable" evidence related to the S & R Lounge: the officers testified it was a night spot where shootings, stabbings, aggravated assaults, fights, numerous narcotic violations, and sexual assaults had been occurring. A residential neighborhood surrounds the club. Neighbors in the area call the police because of loud music, people blocking the streets, fights, and gunshots. In August 2003 this was one of the "hot spots" police were "trying to clean up." Other "objectionable" evidence cited by LeBleu was the testimony about the white bags he allegedly dumped out of his pockets while running from police. LeBleu argues this extraneous offense evidence was inadmissible, because it was irrelevant and prejudicial and tended to show he had the propensity to commit crimes. See Tex. R. Evid. 401, 402, 403, 404(b).

    Subject to certain exceptions, an officer's testimony explaining how he happened to be at the scene of a crime or accident will almost always be relevant. (2) Schaffer v. State, 777 S.W.2d 111, 114-15 (Tex. Crim. App. 1989); Lee v. State, 29 S.W.3d 570, 577 (Tex. App.--Dallas 2000, no pet.) ("Police officers may testify to explain how the investigation began and how the defendant became a suspect.") (citing Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995)). Further, the State generally is entitled to show the circumstances surrounding an arrest unless the evidence is inherently prejudicial and has no relevance to any issue in the case. Maddox v. State, 682 S.W.2d 563, 564 (Tex. Crim. App. 1985). The officers described the general environment at the club and its parking lot and explained, as follows, why that environment and events associated with it required their presence in the area:

    [A] lot of times we'll go to these hot spots, particularly clubs we have a lot of problems with, and we'll just drive through there; sometimes we'll step out, we'll talk to people, ask people to turn their stereo down or we'll ask people, you know, to clear the sidewalk or move their car or quit standing in the roadway, let cars through. Or sometimes we'll just walk through the club. We might check the liquor license for club establishment. And a lot of times when we do that, we don't have . . . [p]roblems that night, because they know, "oh, hey, the officers are out and about."



    Anderson testified that during one of these patrols, he entered the club parking lot and encountered LeBleu with a loud stereo. The testimony concerning the environment and activities in and around the club explains why the officers were there and how LeBleu became a suspect. Counsel's failure to object to this evidence is not sufficient to establish ineffective assistance of counsel.

    LeBleu also complains counsel was ineffective for failing to object to the admission of the "white bags" testimony. Evidence of extraneous acts may be admissible to prove motive under Tex. R. Evid. 404(b); Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003); DeLeon v. State, 937 S.W.2d 129, 135-36 (Tex. App.--Waco 1996, pet. ref'd) (Fact that defendant was driving a stolen car was admissible to show his fear of arrest and his motive for attacking police who had stopped him.). Here, the evidence that LeBleu put his hands over his front pockets during the pat-down, ran from the police, and discarded "little white bags" while in flight was relevant to show LeBleu's motive for striking the policeman and the reason for his flight. The fact that the bags were never found does not make the officer's testimony inadmissible for lack of relevance or probativeness. The jury weighs the credibility of the evidence and could have inferred LeBleu struck the officer and fled to keep the police from discovering the contents of his pockets. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979).

    The evidence may also have been viewed as "same transaction contextual evidence." Evidence of other crimes, wrongs, or acts that occur in the same criminal transaction may be admissible despite the general prohibition of Rule 404(b) where several acts are blended or intermixed or so connected that they form an indivisible criminal transaction, and where "full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others." Rogers v. State, 853 S.W.2d 29, 33-35 (Tex. Crim. App. 1993); see also Prible v. State, 175 S.W.3d 724, 731-32 (Tex. Crim. App. 2005), cert. denied, 126 S. Ct. 481, 163 L. Ed. 2d 367 (2005). "[E]vents do not occur in a vacuum, and the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so that it may realistically evaluate the evidence." Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (citing Archer v. State, 607 S.W.2d 539, 542 (Tex. Crim. App. 1980)). Here, the events surrounding the stop, flight, and arrest were so connected that they formed an indivisible criminal transaction. The testimony was relevant for the jury to understand why a person who was asked to turn down a stereo would strike a police officer and then flee the scene. The lack of an objection to this evidence does not establish ineffective assistance of counsel. See Poullard v. State, 833 S.W.2d 273, 278 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd)("Counsel is not ineffective in not objecting to admissible evidence of the circumstances of a defendant's arrest.").

    LeBleu also maintains that because the evidence was prejudicial, trial counsel should have objected to its admission. Although relevant, the evidence may nonetheless be excluded if the dangers of unfair prejudice outweigh the probative value of the evidence. Tex. R. Evid. 403. As other courts have noted, '"virtually all evidence offered by the prosecution will be prejudicial to the defendant . . . ."' Kan v. State, 4 S.W.3d 38, 46 (Tex.App.--San Antonio 1999, pet. ref'd) (quoting Caballero v. State, 919 S.W.2d 919, 922 (Tex. App.--Houston [14th Dist.] 1996, pet. ref'd). Therefore, only unfairly prejudicial evidence should be excluded. Kan, 4 S.W.3d at 46. The evidence regarding the club, parking lot, and white bags was probative to show why the officers were at the scene and to show LeBleu's motive for assault and flight. The record does not establish counsel was ineffective for failing to lodge a Rule 403 objection.

    LeBleu argues the failure to file a motion in limine shows his counsel was ineffective. Failure to file pretrial motions is not categorically deemed ineffective assistance of counsel. Ryan v. State, 937 S.W.2d 93, 104 (Tex. App.--Beaumont 1996, pet. ref'd). The record does not reveal trial counsel's strategy regarding his decision not to file a motion in limine. See Thompson, 9 S.W.3d at 814. The filing of a motion in limine would not necessarily prevent the admission of this evidence. See generally Norman v. State, 523 S.W.2d 669, 671 (Tex. Crim. App. 1975). (A motion in limine may not be enforced to exclude properly admissible evidence.). Under these circumstances, the failure to file a motion in limine to exclude admissible evidence is not ineffective assistance of counsel.

    LeBleu also contends trial counsel was ineffective because he submitted the police report for admission into evidence. The report contained a reference to the white bags LeBleu discarded from his pockets. This evidence had already been properly admitted through Officer Anderson's testimony. Furthermore, counsel's strategy in offering the report into evidence may have been to impeach Officer Lisenby by showing a discrepancy between his testimony and the report. The officer acknowledged the report may have been unclear and explained the alleged discrepancy. The jury was free to believe or not believe his explanation. Because we do not second-guess counsel's strategy in hindsight, we cannot say counsel was ineffective in offering the report into evidence. LeBleu also argues counsel was ineffective by waiting until voir dire to file a Rule 404(b) motion to exclude evidence. This allegation of ineffectiveness is not firmly established in the record.

    LeBleu testified at trial and described how the police allegedly beat, kicked, dragged, "maced," and injured him. The defendant's decision to testify allowed the State to rebut his claims. Once he testified about the beating, the State was able to elicit testimony from Anderson that LeBleu filed a complaint against the officers regarding their conduct that night, and the Internal Affairs Department of the Police Department concluded the complaint was unfounded. LeBleu argues trial counsel should have filed a motion in limine regarding the investigation's results. However, a motion in limine does not prohibit the admission of evidence; it merely requires the parties to come before the judge before mentioning the evidence. Geuder v. State, 115 S.W.3d 11, 14-15 (Tex. Crim. App. 2003). LeBleu was found guilty of assaulting a police officer and the jury assessed his punishment at three years out of a possible twenty. We fail to see how the decision to have LeBleu testify about an alleged beating and the State's rebuttal of that testimony affirmatively demonstrate ineffectiveness of counsel.

    LeBleu maintains his counsel failed to subpoena jail records that would have substantiated his claim of a police beating. However, on this record, we do not know what the jail records would have shown, whether trial counsel subpoenaed them, or whether the records would have benefitted LeBleu. See Wade v. State, 164 S.W.3d 788, 796 (Tex. App.--Houston [14th Dist.] 2005, no pet.) (no ineffective assistance in counsel's failure to call witnesses where no showing was made that witnesses were available to testify and that defendant would have benefitted from their testimony). LeBleu testified in detail to the alleged beating he received, and the trial judge admitted photographs LeBleu offered to substantiate his claim. The record does not firmly establish ineffective assistance for failure to subpoena records.

    LeBleu also argues counsel was ineffective for failing to object to the prosecutor's use of terms calling for "legal conclusions." In response to a question, Officer Anderson stated LeBleu assaulted him; at one point, trial counsel described the events as an "altercation" and a "fight." We presume counsel was effective unless the record firmly establishes ineffectiveness. This language does not establish ineffectiveness.

    LeBleu maintains his trial counsel did not prepare him for trial and argues counsel was ineffective because he allowed the State to refer to and use his exhibits (photographs of LeBleu and his injuries) before they were admitted into evidence. The record does not firmly establish either of these ineffectiveness claims. Trial counsel may have believed that the more the jury was exposed to the injuries claimed by LeBleu, the more likely the jury would believe his claim.

    We conclude the record does not establish that trial counsel's representation "fell below an objective standard of reasonableness" and that, but for the alleged errors, the result of the proceeding would have been different. We overrule LeBleu's sole issue and affirm the conviction.

    JUDGMENT AFFIRMED.

    ___________________________________

    DAVID GAULTNEY

    Justice



    Submitted on October 10, 2005

    Opinion Delivered February 1, 2006

    Do Not Publish



    Before McKeithen, C.J., Gaultney and Kreger, JJ.

    1. See Tex. Pen. Code Ann. § 22.01(a)(1), (b)(1)(Vernon Supp. 2005).

    2.

    As noted in Schaffer, a "police officer, however, should not be permitted to relate historical aspects of the case, replete with hearsay statements in the form of complaints and reports on grounds that she was entitled to tell the jury the information upon which she acted." Schaffer, 777 S.W.2d at 114-15 (footnote omitted).