Lovings, Carl Dion ( 2016 )

PD-0395-16
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 5/30/2016 11:17:45 AM
Accepted 6/1/2016 3:24:14 PM
ABEL ACOSTA
PD 0395-16 CLERK
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
_______________________________________________
CARL DION LOVINGS,
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
_______________________________________________
On Petition for Discretionary Review from the
Fourteenth Court of Appeals in No. 14-15-00167-CR
affirming the conviction in cause number 1419029
From the 177th District Court of Harris County, Texas
_______________________________________________
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
_______________________________________________
ORAL ARGUMENT REQUESTED ALEXANDER BUNIN
Chief Public Defender
Harris County, Texas
JANI MASELLI WOOD
Assistant Public Defender
Harris County, Texas
TBN. 00791195
1201 Franklin Street, 13th Floor
Houston, Texas 77002
Phone: (713) 368-0016
Fax: (713) 368-9278
June 1, 2016
Counsel for Appellant
May 29, 2016
IDENTITY OF PARTIES AND COUNSEL
Appellant: Carl Dion Lovings
TDCJ-ID# 01984211
Michael Unit
2664 FM 2054
Tennessee Colony, TX 75886
Trial Prosecutor: Cheryl Ann Williamson
Nick Socias
Appellate Prosecutor Carly Dessauer
Assistant District Attorneys
Harris County, Texas
1201 Franklin, 6th Floor
Houston, Texas 77002
Defense Counsel at Trial: Gary Polland
2211 Norfolk Street, Suite 920
Houston, TX 77098
Presiding Judge: Hon.Ryan Patrick
177th District Court
Harris County, Texas
1201 Franklin, 19th floor
Houston, Texas 77002
Defense Counsel on Appeal: Jani Maselli Wood
Assistant Public Defender
Harris County, Texas
1201 Franklin, 13th Floor
Houston, Texas 77002
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Table of Contents
Identity of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Ground for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Reason for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Credibility of the complainant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Discussion of “medical records” during closing argument by the State:.. . 10
Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Ground One: This was a one witness trial. The only evidence to
support the conviction was offered through inadmissible hearsay and an
inadmissible credibility determination from the police officer. Without
that evidence, there was no other evidence to convict. The trial attorney
improperly objected to the credibility determination and wholly failed
to object to the “medical” evidence offered. Did the Court of Appeals
err in determining Mr. Lovings received effective assistance of counsel?
.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
The Court of Appeals agrees the evidence was inadmissible.. . . . . . . . . . . 13
The Court of Appeals misapplied precedent from this Court.. . . . . . . . . . 13
The credibility determination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Mr. Lovings was egregiously harmed by this testimony.. . . . . . . . . . . . . . . 17
-3-
The Court of Appeals erred in determining Mr. Lovings was effectively
represented - there can be no confidence in this verdict.. . . . . . . . . . . . . . 18
Prayer for Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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INDEX OF AUTHORITIES
PAGE
Cases:
Andrews v. State,
159 S.W.3d 98, 102 (Tex. Crim. App. 2005) . . . . . . . . . . . . . . . . . . . . . 13, 14
Ayala v. State,
352 S.W.2d 955 (Tex. Crim. App. 1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Cannon v. State,
668 S.W.2d 401 (Tex.Crim.App.1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Fuller v. State,
224 S.W.2d 823 (Tex. App. – Texarkana 2007, no pet.) . . . . . . . . . . . . . . . 17
Lovings v. State,
14-15-00167-CR, 2016 WL 1237875
(Tex. App.—Houston [14th Dist.] Mar. 29, 2016, no. pet. h.). . . . . . . passim
Reynolds v. State,
227 S.W.3d 355 (Tex. App – Texarkana 2007, no pet.) . . . . . . . . . . . . . . . 17
Schutz v. State,
63 S.W.3d 442 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17
Thompson v. State,
9 S.W.3d 808 (Tex. Crim. App. 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Yount v. State,
872 S.W.2d 706 (Tex. Crim. App. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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Rules and Statutes
TEX. R. EVID. 608(A)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
TEX. R. APP. P. 66.3(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
-6-
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is requested. While this Court has routinely held that ineffective
assistance of counsel is an issue better suited to habeas, nonetheless, this Court has
never held that it cannot be considered on direct review. Furthermore, this Court has
held that in the face of absolutely no strategy at all, a claim of ineffective assistance
of counsel will be sustained. This is such a case.
STATEMENT OF THE CASE
This is an appeal from the offense of aggravated assault/family member. (C.R.
at 158). Mr. Lovings pleaded not guilty and a jury convicted him. (C.R. at 156). The
court sentenced Mr. Lovings to 33 years confinement in the Institutional Division of
the Texas Department of Criminal Justice. (C.R. at 158). Timely notice of appeal was
filed. (C.R. at 162).
STATEMENT OF THE PROCEDURAL HISTORY
In an unpublished opinion, the Fourteenth Court of Appeals affirmed Mr.
Loving’s conviction. Lovings v. State, 14-15-00167-CR, 2016 WL 1237875, at *1 (Tex.
App.—Houston [14th Dist.] Mar. 29, 2016, no. pet. h.). No motion for rehearing
was filed. After an extension of time, this petition is timely if filed on or before May
30, 2016.
-7-
GROUND FOR REVIEW
Ground One: This was a one witness trial. The only evidence to
support the conviction was offered through inadmissible hearsay and an
inadmissible credibility determination from the police officer. Without
that evidence, there was no other evidence to convict. The trial attorney
improperly objected to the credibility determination and wholly failed
to object to the “medical” evidence offered. Did the Court of Appeals
err in determining Mr. Lovings received effective assistance of counsel?
REASON FOR REVIEW
The Fourteenth Court of Appeals has decided an important question of
state or federal law in a way that conflicts with the applicable decisions
of the Court of Criminal Appeals. TEX. R. APP. P. 66.3(c).
-8-
STATEMENT OF FACTS RELATIVE TO GROUND RAISED
The State presented one witness - Houston Police Officer Mark Contreras. (3
R.R. at 7). He received a call and responded to a disturbance. (3 R.R. at 11). When
he arrived at the Latanya Peterson’s (the complainant) house, she was upset and
frazzled, and asking for help. (3 R.R. at 11). She told the officer her husband had
beaten her. (3 R.R. at 13-14, 27). She was bleeding from a couple different spots on
her body and had a cut finger and one above her eye. (3 R.R. at 15). Officer
Contreras found a pool of blood and a baseball bat. (3 R.R. at 15). She appeared to
be in pain and was transported to the hospital. (3 R.R. at 16).
The defense made no objection to the medical records. (3 R.R. at 31, SX-13).
The State also admitted the 9-1-1 call. (3 R.R. at 37). Although in the 9-1-1 call, the
complainant mentioned a knife, but none was ever found. (3 R.R. at 37). Officer
Contreras did concede that he did not know what the complainant looked like before
the incident. (3 R.R. at 39-40).
Credibility of the complainant
In the first instance where no ruling was received, Officer Contreras was asked:
Q (State) “Is it a part of your job or your duties to determine credibility of
witnesses?
A: Yes, ma’am, it is.
Q: Why is that?
-9-
A: You never want to file a charge against someone if they’re being accused of the
crime if you don’t believe that the person or persons that are witness against
them are telling the truth.
Ms. Williamson (this is probably in error and meant Defense Counsel) Judge,
I object to that. That invades the province of the fact finder as to credibility
of witnesses.
The Court: Let’s move on.
(3 R.R. at 10-11).
Later in his testimony, Officer Contreras was asked:
Q: Did you find Latanya Peterson to be credible that night?
A: I did.
(3 R.R. at 18).
During closing argument, the State argued without objection:
I don’t care what he has to say or think about why she didn’t walk
through those doors today because the evidence brought to you is from
that stand. It’s what that officer said she told him that night. It’s the
officer saying he found her credible.
(3 R.R. at 57).
Discussion of “medical records” during closing argument by the State:
These are the medical records. Now you can look at this in more detail.
... Something you haven’t read yet, feel free to, it’s in evidence.
****
Patient states, “Today I came home from church a little after 2:00. I was
check[ing] my Facebook to see if my husband was still my friend on his
page. “I see this hoe of a wife of mine, bitches and hoes, Bitch you ain’t
-10-
shit.’ All kinds of names. I told him if he don’t want me, just leave. He
said he wouldn’t leave until he got the papers, divorce papers.
He came back to the room where I was watching television. I
told him he couldn’t watch TV and to go to his aunt’s house. He said,
“Bitch, I ain’t going to leave until you give me the papers. I got up to
walk out of the room. He pushed me so hard that he pushed me to the
wall across the room. I said, “I don’t want to fight.’ I went to the
closet. He pulled my hair off. It was glued to my head. The first time
he hit me, points to left forehead, he called his mom and put it on the
speaker phone and said he was going to the penitentiary because I’m
going to kill this bitch. He punched me in the closet. I fell on my
knees. He put me on the floor. He was on my back. He grabbed my
neck. ‘Bitch, I’ll break your fucking neck.’
(C.R. at 57-58).
On direct appeal, Mr. Lovings argued the bolded statements from the State’s
closing argument were inadmissible hearsay:
Patient states, “Today I came home from church a little after 2:00.
I was check my Facebook to see if my husband was still my friend
on his page. “I see this hoe of a wife of mine, bitches and hoes,
Bitch you ain’t shit.’ All kinds of names. I told him if he don’t
want me, just leave. He said he wouldn’t leave until he got the
papers, divorce papers.
He came back to the room where I was watching television.
I told him he couldn’t watch TV and to go to his aunt’s house. He
said, “Bitch, I ain’t going to leave until you give me the papers.
I got up to walk out of the room. He pushed me so hard that he
pushed me to the wall across the room. I said, “I don’t want to fight.’
I went to the closet. He pulled my hair off. It was glued to my head.
The first time he hit me, points to left forehead, he called his mom
and put it on the speaker phone and said he was going to the
penitentiary because I’m going to kill this bitch. He punched me
in the closet. I fell on my knees. He put me on the floor. He was on
my back. He grabbed my neck. ‘Bitch, I’ll break your fucking neck.’
-11-
(C.R. at 57-58).
ARGUMENT
Ground One: This was a one witness trial. The only evidence to
support the conviction was offered through inadmissible hearsay and an
inadmissible credibility determination from the police officer. Without
that evidence, there was no other evidence to convict. The trial attorney
improperly objected to the credibility determination and wholly failed
to object to the “medical” evidence offered. Did the Court of Appeals
err in determining Mr. Lovings received effective assistance of counsel?
The Court of Appeals held that Mr. Lovings’ representation was
constitutionally sufficient:
Appellant argues the bolded statements do not fall under the
medical-diagnosis-or-treatment hearsay exception because they were not
pertinent to Peterson's diagnosis or treatment. The Court of Criminal
Appeals reached the same conclusion under similar fact patterns. Taylor
v. State, 268 S.W.3d 571, 590–91 (Tex.Crim.App.2008) (victim's
statement to therapist identifying appellant as her rapist was not
pertinent to medical diagnosis or treatment); Hassell v. State, 607 S.W.2d
529, 531 (Tex.Crim.App. [Panel Op.] 1980) (child's statement to doctor
that her mother hit her with a broom was not pertinent to treatment of
her injuries). Accord Mbugua v. State, 312 S.W.3d 647, 670–71
(Tex.App.—Houston [1st Dist.] 2009, pet. ref d) (“While the fact that
appellant was cut was clearly pertinent to his treatment, the fact that he
was injured ‘while fighting’ and ‘following an altercation’ was not.”). In
his reply, appellant also argues the statements emanate from someone
“outside the business” and are inadmissible. Garcia v. State, 126 S.W.3d
921, 926–27 (Tex.Crim.App.2004).
Assuming the statements were inadmissible hearsay under either
theory, we nonetheless conclude appellant has not satisfied his burden
to show his lawyer's performance was deficient. The challenged conduct
is not “so outrageous that no competent attorney would have engaged
in it.” Goodspeed, 187 S.W.3d at 392; Garcia, 57 S.W.3d at 440. Thus, an
evidentiary record as to strategy is necessary:
-12-
We ordinarily need to hear from counsel whether there
was a legitimate trial strategy for a certain act or omission.
Frequently, we can conceive potential reasonable trial
strategies that counsel could have been pursuing. When
that is the case, we simply cannot conclude the counsel has
performed deficiently.
Andrews v. State, 159 S.W.3d 98, 103 (Tex.Crim.App.2005).
Lovings v. State, 14-15-00167-CR, 2016 WL 1237875, at *5 (Tex. App.—Houston [14th
Dist.] Mar. 29, 2016, no. pet. h.).
The Court of Appeals agrees the evidence was inadmissible.
The Court of Appeals determined that the inflammatory medical records, not
dealing with any sort of treatment evidence, were inadmissible. Id. But then the
Court of Appeals goes on to determine that the failure to object was not so
outrageously incompetent. Id. To support that holding, the Court of Appeals
recounts this Court’s decision in Andrews. Id.
The Court of Appeals misapplied precedent from this Court.
The Court of Appeals only stated part of the holding of Andrews. This Court
determined from an appellate record alone that a reviewing court can determine there
was no strategy for an attorney’s decision:
As a result, we have said that the record on direct appeal is in almost all
cases inadequate to show that counsel's conduct fell below an
objectively reasonable standard of performance and that the better
course is to pursue the claim in habeas proceedings. But, when no
reasonable trial strategy could justify the trial counsel's conduct,
-13-
counsel's performance falls below an objective standard of
reasonableness as a matter of law, regardless of whether the record
adequately reflects the trial counsel's subjective reasons for acting as she
did. (Footnotes omitted).
Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). This Court went on
further to explain the mandate of representation contemplated by the Sixth
Amendment:
To satisfy the second prong of the Strickland test, we do not require that
the appellant show that there would have been a different result if
counsel's performance had not been deficient. The defendant must
show only that “there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” (Footnotes omitted).
Andrews, 159 S.W.3d at 102. Due to the scant evidence for conviction, there is no
confidence in this verdict.
Mr. Lovings bears the burden of proving by a preponderance of the evidence
that counsel was ineffective. Cannon v. State, 668 S.W.2d 401, 403
(Tex.Crim.App.1984). A single error can result in a finding of ineffective assistance
of counsel:
However, while this Court has been hesitant to “designate any error as
per se ineffective assistance of counsel as a matter of law,” it is possible
that a single egregious error of omission or commission by appellant's
counsel constitutes ineffective assistance. Jackson v. State, 766 S.W.2d
504, 508 (Tex.Crim.App.1985) (failure of trial counsel to advise
appellant that judge should assess punishment amounted to ineffective
assistance of counsel) (modified on other grounds on remand from U.S.
-14-
Supreme Court, Jackson v. State, 766 S.W.2d 518 (Tex.Crim.App.1988)).
See also Ex parte Felton, 815 S.W.2d at 735 (failure to challenge a void
prior conviction used to enhance punishment rendered counsel
ineffective). This position finds support in opinions of the United States
Supreme Court, which has also held that a single egregious error can
sufficiently demonstrate ineffective assistance of counsel. Murray v.
Carrier, 477 U.S. 478, 106 S. Ct. 2639, 2649, 91 L. Ed. 2d 397 (1986)...
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Mr. Lovings has
presented such an error.
The credibility determination
The Court of Appeals detailed the colloquy between the State and the sole
witness, Officer Contreras:
The following exchange occurred early in the testimony:
The State: Is it a part of your job to or your duties to determine credibility of
witnesses?
Contreras: Yes, ma'am, it is.
The State: Why is that?
Contreras: You never want to file a charge against someone if they're being
accused of the crime if you don't believe that the person or persons that are
witness against them are telling the truth.
Appellant's counsel: Judge, I object. That invades the province of the fact
finder as to the credibility of witnesses.
Court: Let's move on.
Later, the State asked Contreras about Peterson specifically:
-15-
The State: Did you find LaTanya Peterson to be credible that night?
Contreras: I did.
The State: I may have already asked this, but why? Why did you find her
credible that night?
Appellant's counsel: That's been asked and answered.
The Court: Sustained.
Lovings, 2016 WL 1237875, at *3.
The Court of Appeals determined that failing to get an adverse ruling (thereby
foreclosing appellate review) could have been a strategy:
Later, as quoted above, he objected to Contreras' testimony about why
he considers the credibility of a complainant generally. The trial court
said, “Let's move on.” Based on that instruction, appellant's lawyer
could reasonably have inferred the trial court would overrule an
objection to testimony about Peterson's credibility, and therefore may
have strategized not to object again.
Lovings, 2016 WL 1237875, at *3.
In Schutz v. State, 957 S.W.2d 52 (Tex. Crim. App. 1997), this Court considered
the scope of an expert’s testimony on the truthfulness of a child-witness. One salient
quote the Court chose to highlight was:
Asking a witness whether another witness is lying is certainly more
prejudicial than asking whether another witness is simply mistaken. In
both situations however, the questioning is designed to elicit testimony
in the form of one witness’ opinion as to the credibility or veracity of
another witness, a determination which lies solely within the province
of the jury.
-16-
Schutz, 957 S.W.2d at 67-68. The opinion of Officer Contreras was impermissible.
It is well-settled that a witness may not give an opinion concerning the truth or
falsity of another witness’s testimony. Ayala v. State, 352 S.W.2d 955, 956 (Tex. Crim.
App. 1962). “Nonexpert testimony may be offered to support the credibility of a
witness in the form of opinion or reputation, but ‘the evidence may refer only to
character for truthfulness or untruthfulness.’” Fuller v. State, 224 S.W.2d 823, 833 (Tex.
App. – Texarkana 2007, no pet.) citing TEX. R. EVID. 608(A)(1). The Courts have
uniformly held that this type of evidence is inadmissible “because it does more than
‘assist the trier of fact to understand the evidence or to determine a fact issue in the
case’; it decides an issue for the jury.’” (emphasis in the original) Reynolds v. State, 227
S.W.3d 355, 365-66 (Tex. App – Texarkana 2007, no pet.) citing Yount v. State, 872
S.W.2d 706, 709 (Tex. Crim. App. 1993).
Mr. Lovings was egregiously harmed by this testimony.
This conviction had scant evidence to support it. The complainant did not
testify, leaving the entire case to rest upon Officer Contreras. The State chose to
impermissibly bolster their case asking whether the complainant was credible.
-17-
The Court of Appeals erred in determining Mr. Lovings was effectively represented - there can be no
confidence in this verdict.
The State’s closing argument consisted of two themes. First, the officer found
the complainant credible - “It’s the officer saying he found her credible.” (3 R.R. at
57).
Second, inadmissible evidence from the medical records.
Patient states, “Today I came home from church a little after 2:00.
I was check my Facebook to see if my husband was still my friend
on his page. “I see this hoe of a wife of mine, bitches and hoes,
Bitch you ain’t shit.’ All kinds of names. I told him if he don’t
want me, just leave. He said he wouldn’t leave until he got the
papers, divorce papers.
He came back to the room where I was watching television.
I told him he couldn’t watch TV and to go to his aunt’s house. He
said, “Bitch, I ain’t going to leave until you give me the papers.
I got up to walk out of the room. He pushed me so hard that he
pushed me to the wall across the room. I said, “I don’t want to fight.’
I went to the closet. He pulled my hair off. It was glued to my head.
The first time he hit me, points to left forehead, he called his mom
and put it on the speaker phone and said he was going to the
penitentiary because I’m going to kill this bitch. He punched me
in the closet. I fell on my knees. He put me on the floor. He was on
my back. He grabbed my neck. ‘Bitch, I’ll break your fucking neck.’
(C.R. at 57-58).
Two egregious errors by defense counsel occurred - singularly each should
result in reversal. But in a case with such slim evidence, this is not a verdict worthy
of confidence. The Court of Appeals erred in so holding. This petition should be
granted.
-18-
PRAYER FOR RELIEF
For the reasons stated above, Mr. Lovings prays that this Court grant his
petition for discretionary review.
Respectfully submitted,
ALEXANDER BUNIN
Chief Public Defender
Harris County Texas
Jani Maselli Wood
_______________________________
JANI J. MASELLI WOOD
Assistant Public Defender
Harris County, Texas
Jani.Maselli@pdo.hctx.net
TBN. 00791195
1201 Franklin Street, 13th Floor
Houston, Texas 77002
Phone: (713) 368-0016
Fax: (713) 368-9278
Attorney for Appellant
Carl Dion Lovings
-19-
CERTIFICATE OF SERVICE
Pursuant to TEX. R. APP. PROC. 9.5, this certifies that on May 30, 2016, a copy
of the foregoing was emailed to Lisa McMinn, State Prosecuting Attorney, and the
Harris County District Attorney’s Office through texfile.com at the following address:
Carly Dessauer
Assistant District Attorney
1201 Franklin Street, 6th Floor
Houston, TX 77002
Dessauer_Carly@dao.hctx.net
Lisa McMinn
Lisa.McMinn@SPA.texas.gov
Jani Maselli Wood
_________________________________
JANI J. MASELLI WOOD
-20-
CERTIFICATE OF COMPLIANCE
Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this
petition complies with the type-volume limitations of TEX. R. APP. PROC. 9.4(I)(2)(D).
1. Exclusive of the portions exempted by TEX. R. APP. PROC. 9.4 (I)(1), this
petition contains 3022 words printed in a proportionally spaced typeface.
2. This petition is printed in a proportionally spaced, serif typeface using
Garamond 14 point font in text and Garamond 14 point font in footnotes produced
by Corel WordPerfect software.
3. Undersigned counsel understands that a material misrepresentation in
completing this certificate, or circumvention of the type-volume limits in Tex. R. App.
Proc. 9.4(j), may result in the Court’s striking this brief and imposing sanctions against
the person who signed it.
Jani Maselli Wood
____________________________
JANI J. MASELLI WOOD
-21-
Appendix A
Opinion Bowden v. State
Lovings v. State, Not Reported in S.W .3d (2016)
2016 WL 1237875
Only the Westlaw citation is currently available. Background
SEE TX R RAP RULE 47.2 FOR DESIGNATION AND On February 23, 2014, Officer Mark Contreras of the
SIGNING OF OPINIONS. Houston Police Department was dispatched to the home of
LaTanya Peterson, the complainant and appellant's wife.
DO NOT PUBLISH—TEX.R.APP. P. 47.2(B). Contreras testified that when he arrived at the house, Peterson
was “very upset, crying, [and] frazzled.” She immediately
Court of Appeals of Texas, said to him, “He beat me. He beat me. He hit me like a dog.
Houston (14th Dist.). I thought he was going to kill me.” “He” referred to appellant.
She was very upset and feared appellant might still be in the
area.
Carl Dion Lovings, Appellant
v.
The State of Texas, Appellee Peterson told Contreras she and appellant had been arguing
NO. 14-15-00167-CR when appellant slapped her and punched her in the face. She
retreated to the master bedroom and tried to close the door as
| appellant continued to assault her. Unable to close the door,
Memorandum Opinion filed March 29, 2016 she went into the closet. In response, appellant grabbed an
aluminum baseball bat and began striking her. She ran out of
On Appeal from the 177th District Court, Harris County, the closet, but that enabled appellant to, in Contreras' words,
Texas, Trial Court Cause No. 1419029 “land a few good blows with the baseball bat.” Peterson went
back into the closet because appellant could not hit her as
hard with the bat when she was in the closet. She tried to
block herself from the strikes to her head. Peterson said
Attorneys and Law Firms appellant had bitten her at some point.
Jani J. Maselli Wood, for Appellant.
Blood was all over the closet floor. Contreras considered that
Devon Anderson, Carly Dessauer, for Appellee. relevant because it supported complainant's account of the
Panel consists of Justices Christopher, McCally, and Busby. assault. He observed many injuries on Peterson that also were
consistent with her account. She was bleeding from her lip
and the side of her head. Bruises were forming on her arms
and legs. She had cuts above her eye and on some of her
fingers. She had what looked like a bite mark or deep bruise
MEMORANDUM OPINION on her back.
Peterson was treated in a hospital after the assault. Sandra
Sanchez, R.N., examined her. Medical records from that
Tracy Christopher, Justice treatment were admitted into evidence. One page of the
medical records showed drawings of the front and back of a
*1 A jury found Carl Dion Lovings guilty of aggravated female human body. Sanchez drew marks on the figures to
assault of a family member. The offense was enhanced by two indicate the location of Peterson's injuries and annotated each
felony convictions. The trial court sentenced him to mark with information about the size, appearance, and nature
thirty-three years' imprisonment. In two issues, appellant of the injury. Peterson denied strangulation but said, “He
asserts he received ineffective assistance of counsel due to his grabbed my neck,” and demonstrated how he twisted her
lawyer's failure to object to (1) testimony regarding the head. Sanchez noted Peterson's bloody, red scleras and
complainant's credibility, and (2) the State's reading of difficulty breathing.
unredacted medical records during closing argument. We
affirm.
Eleven photographs of Peterson taken at the hospital were
admitted into evidence. Contreras confirmed the photos
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Lovings v. State, Not Reported in S.W .3d (2016)
accurately depicted the injuries he saw on her. He pointed out sufficient information to permit a reviewing court to fairly
a straight-line injury to Peterson's arm and said it was evaluate the merits of such a serious allegation. See Bone v.
consistent with being hit with a baseball bat. When shown a State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002). In many
picture of Peterson's finger in which her fingernail was tom, cases, the defendant is unable to meet the first prong of the
he said he considered that injury a defensive wound she Strickland test because the record on direct appeal is
suffered while using her hands to try to shield her head from underdeveloped and does not adequately reflect the alleged
appellant's blows with the baseball bat. failings of trial counsel. See Mata v. State, 226 S.W.3d 425,
430 (Tex.Crim.App.2007).
*2 The State rested its case after Contreras testified.
Appellant did not testily, call witnesses, or offer evidence. A sound trial strategy may be imperfectly executed, but the
Peterson did not attend the trial. right to effective assistance of counsel does not entitle a
defendant to errorless or perfect counsel. See Robertson v.
State, 187 S.W.3d 475, 483 (Tex.Crim.App.2006). Isolated
The jury found appellant guilty. At appellant's election, the instances in the record reflecting errors of omission or
trial court assessed punishment. Appellant timely appealed. commission do not render counsel's performance ineffective,
nor can ineffective assistance of counsel be established by
isolating one portion of counsel's performance for
examination. See Ex parte Welborn, 785 S.W.2d 391, 393
Analysis (Tex.Crim.App.1990). Moreover, it is not sufficient that the
defendant show, with the benefit of hindsight, that counsel's
actions or omissions during trial were merely of questionable
I. Legal standards for ineffective assistance of counsel competence. See Mata, 226 S.W.3d at 430. Rather, to
We review claims of ineffective assistance of counsel under establish counsel's acts or omissions were outside the range of
the standard set forth in Strickland v. Washington, 466 U.S. professionally competent assistance, the defendant must
688 (1984). Under Strickland, the defendant must prove (1) demonstrate counsel's errors were so serious that he was not
his trial counsel's representation was deficient, and (2) the functioning as counsel.See Patrick v. State, 906 S.W.2d 481,
deficient performance was so serious that it deprived him of 495 (Tex.Crim.App.1995).
a fair trial. Id. at 687. Counsel's representation is deficient if
it falls below an objective standard of reasonableness. Id. at
688. A deficient performance deprives the defendant of a fair II. Failure to Object to Testimony About Credibility
trial only if it prejudices the defense. Id. at 691–92. To show *3 In his first issue, appellant asserts his lawyer's failure to
prejudice, appellant must demonstrate there was a reasonable object to Contreras' testimony about Peterson's credibility was
probability that, but for counsel's unprofessional errors, the ineffective assistance of counsel.
result of the proceeding would have been different. Id. at 694.
Failure to make the required showing of either deficient
performance or sufficient prejudice defeats the claim of The following exchange occurred early in the testimony:
ineffectiveness. Id. at 697. This test is applied to claims
arising under both the United States and Texas Constitutions. The State: Is it a part of your job to or your duties to
Hernandez v. State, 726 S.W.2d 53, 56–57 determine credibility of witnesses?
(Tex.Crim.App.1986).
Contreras: Yes, ma'am, it is.
Our review of defense counsel's performance is highly
deferential, beginning with the strong presumption that The State: Why is that?
counsel's actions were reasonably professional and motivated
by sound trial strategy. See Jackson v. State, 877 S.W.2d 768,
771 (Tex.Crim.App.1994). When the record is silent as to Contreras: You never want to file a charge against someone
counsel's strategy, we will not conclude the defendant if they're being accused of the crime if you don't believe
received ineffective assistance unless the challenged conduct that the person or persons that are witness against them are
was “so outrageous that no competent attorney would have telling the truth.
engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392
(Tex.Crim.App.2005); Garcia v. State, 57 S.W.3d 436, 440
(Tex.Crim.App.2001). Rarely will the trial record contain
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Lovings v. State, Not Reported in S.W .3d (2016)
Appellant's counsel: Judge, I object. That invades the
province of the fact finder as to the credibility of witnesses. Appellant's lawyer lodged several objections in the early part
of Contreras' testimony, each of which the trial court
sustained. Later, as quoted above, he objected to Contreras'
Court: Let's move on. testimony about why he considers the credibility of a
complainant generally. The trial court said, “Let's move on.”
Based on that instruction, appellant's lawyer could reasonably
Later, the State asked Contreras about Peterson specifically: have inferred the trial court would overrule an objection to
testimony about Peterson's credibility, and therefore may have
The State: Did you find LaTanya Peterson to be credible strategized not to object again. Despite the reasonableness of
that night? that inference and strategy, counsel did object to the State's
asking Contreras about Peterson's credibility. He did not
Contreras: I did. object to the first question (“Did you find LaTanya Peterson
to be credible that night?”), but he objected to the
second—and final—question (“I may have already asked this,
The State: I may have already asked this, but why? Why but why? Why did you find her credible that night?”). The
did you find her credible that night? trial court sustained that objection. Through that objection,
appellant's counsel prevented the jury from hearing why
Contreras found Peterson credible.
Appellant's counsel: That's been asked and answered.
*4 Because appellant has not met his burden to establish
The Court: Sustained. deficient performance by his lawyer, we do not reach the
question of whether appellant has shown he was prejudiced.
See Strickland, 466 U.S. at 697. We overrule appellant's first
issue.
Appellant argues Contreras' testimony that Peterson was
credible was objectionable because it invaded the province of
the jury to determine credibility. He relies on Schutz v. State, III. Failure to Object to Medical Records
957 S.W.2d 52 (Tex.Crim.App.1997), in which the Court of Appellant's second issue concerns Peterson's medical records.
Criminal Appeals decided that certain expert testimony about The medical records were admitted into evidence without
the truth of the allegations made by a child complainant in a objection as business records. Appellant argues certain
sexual assault case was inadmissible. A question about a statements in the quoted records are inadmissible hearsay and
witness' truthfulness “ ‘is designed to elicit testimony in the asserts he was harmed by his lawyer's failure to seek redaction
form of one witness' opinion as to the credibility or veracity of those “incredibly damaging” statements, which the State
of another witness, a determination which lies solely within read during closing argument.
the province of the jury.’ ” Id. at 67–68 (quoting State v.
Walden, 69 Wash.App. 183, 847 P.2d 956, 959 (1993)).
Appellant also cites Yount v. State, 872 S.W.2d 706, 709 Hearsay is an out-of-court statement by a non-testifying
(Tex.Crim.App.1993), Ayala v. State, 352 S.W.2d 955, 956 declarant offered to prove the truth of the matter asserted. See
(Tex.Crim.App.1962), and Fuller v. State, 224 S.W.3d 823, Tex.R. Evid. 801(d); West v. State, 406 S.W.3d 748, 764
833 (Tex.App.—Texarkana 2007, no pet.). (Tex.App.—Houston [14th Dist.] 2013, pet. ref d). Hearsay
is inadmissible unless the statement falls under an exception.
See Tex.R. Evid. 802.
The record is silent on counsel's strategy regarding an
objection, so appellant must establish his lawyer's not
objecting to the testimony was “so outrageous that no One such exception is “[a] statement that (A) is made
competent attorney” would not have objected. Goodspeed, for—and is reasonably pertinent to—medical diagnosis or
187 S.W.3d at 392; see also Moran v. State, 350 S.W.3d 240, treatment; and (B) describes medical history; past or present
244 (Tex.App.—San Antonio 2011, no pet.) (rejecting symptoms or sensations; their inception; or their general
argument and authority implicitly supporting argument that cause.” Tex.R. Evid. 803(4). The medical treatment exception
allowing witness to opine on victim's credibility constitutes assumes the patient understands the importance of being
deficient performance in all circumstances). truthful with health-care providers so as to receive an accurate
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Lovings v. State, Not Reported in S.W .3d (2016)
diagnosis and treatment. Burns v. State, 122 S.W.3d 434, 438 hinges. I believe his mom was telling him to just leave
(Tex.App.—Houston [1st Dist.] 2003, pet. ref'd). because he just left and left his stuff there.
Another hearsay exception is business records. Business *5 Appellant argues the bolded statements do not fall under
records are those made and kept in the regular course of the medical-diagnosis-or-treatment hearsay exception because
business that concern and are made at or near the time of an they were not pertinent to Peterson's diagnosis or treatment.
act, condition, opinion, or diagnosis. See Tex.R. Evid. 803(6). The Court of Criminal Appeals reached the same conclusion
It is undisputed that Peterson's medical records are admissible under similar fact patterns. Taylor v. State, 268 S.W.3d 571,
as business records. 590–91 (Tex.Crim.App.2008) (victim's statement to therapist
identifying appellant as her rapist was not pertinent to medical
diagnosis or treatment); Hassell v. State, 607 S.W.2d 529,
However, a business record may contain hearsay statements, 531 (Tex.Crim.App. [Panel Op.] 1980) (child's statement to
known as “hearsay within hearsay.” The proponent of the doctor that her mother hit her with a broom was not pertinent
document must establish those hearsay statements are to treatment of her injuries). Accord Mbugua v. State, 312
independently admissible. See Tex.R. Evid. 805 (“Hearsay S.W.3d 647, 670–71 (Tex.App.—Houston [1st Dist.] 2009,
within hearsay is not excluded by the rule against hearsay if pet. ref d) (“While the fact that appellant was cut was clearly
each part of the combined statements conforms with an pertinent to his treatment, the fact that he was injured ‘while
exception to the rule.”); Sanchez v. State, 354 S.W.3d 476, fighting’ and ‘following an altercation’ was not.”). In his
485–86 (Tex.Crim.App.2011) (“When hearsay contains reply, appellant also argues the statements emanate from
hearsay, the Rules of Evidence require that each part of the someone “outside the business” and are inadmissible. Garcia
combined statements be within an exception to the hearsay v. State, 126 S.W.3d 921, 926–27 (Tex.Crim.App.2004).
rule.”).
Assuming the statements were inadmissible hearsay under
The State read Peterson's description of the assault, as written either theory, we nonetheless conclude appellant has not
by Sanchez. The statements appellant asserts are inadmissible satisfied his burden to show his lawyer's performance was
hearsay are in bold: deficient. The challenged conduct is not “so outrageous that
no competent attorney would have engaged in it.” Goodspeed,
Pt states, “today, I came home from church a little after 2:00. 187 S.W.3d at 392; Garcia, 57 S.W.3d at 440. Thus, an
I was checking Facebook to see if my husband was still my evidentiary record as to strategy is necessary:
friend and on his page, I see ‘this ho of a wife of mine, bitches
and ho's. Bitch you ain't shit.’ All kinds of names. I told him We ordinarily need to hear from counsel
if he don't want me just leave. He said he wouldn't leave until whether there was a legitimate trial strategy
he gets the papers, divorce papers. He came back to the room for a certain act or omission. Frequently, we
where I was watching television. I told him he couldn't watch can conceive potential reasonable trial
my TV and to go to his aunt's house. He said ‘bitch, I ain't strategies that counsel could have been
going to leave until you give me the papers.’ I got up to walk pursuing. When that is the case, we simply
out of the room. He pushed me so hard, he pushed me to the cannot conclude the counsel has performed
wall across the room. I said ‘I don't want to fight.’ I went to deficiently.
the closet. He pulled my hair off. It was glued to my head.
The first time he hit me here (points to left forehead). He Andrews v. State, 159 S.W.3d 98, 103
called his mom and put it on speaker phone and said he was (Tex.Crim.App.2005).
going to the penitentiary because ‘I'm going to kill this bitch.’
He pushed me in the closet. I fell on my knees. He put me on
the floor. He was on my back and he grabbed my neck.
‘Bitch, I'll break your fucking neck.’ He got a baseball bat Appellant did not file a motion for new trial, so there
and hit me. I ran to the bathroom and he hit me again. He bit was no hearing at which a record as to the lawyer's
me (points to back of right shoulder). I said ‘why are you strategy could be developed. Aldaba v. State, 382
hitting me?’ I got back in the closet because it was harder for S.W.3d 424, 431 (Tex.App.—Houston [14th Dist.]
him to swing the bat in the closet. He went to the other side of 2009, pet. ref'd). Without a record, an affidavit from
the bed. I ran to the bathroom to get out the window, but I counsel is almost vital to the success of a claim of
don't fit through the window. He knocked the door off the ineffective assistance. Id. No such affidavit is in the
record. We cannot conclude on this silent record that
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Lovings v. State, Not Reported in S.W .3d (2016)
counsel's performance was deficient. We overrule
appellant's second issue.
Conclusion
We affirm the judgment of the trial court.
All Citations
Not Reported in S.W.3d, 2016 WL 1237875
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