                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-16-00135-CR


EX PARTE TERENCE DANTA
LAVINE


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       FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY
                TRIAL COURT NO. CR-2011-08330-A

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                         MEMORANDUM OPINION1

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                                 I. INTRODUCTION

      Appellant Terence Danta Lavine appeals the trial court’s denial of his post-

conviction application for writ of habeas corpus. We will affirm.

                                 II. BACKGROUND

      A jury convicted Lavine of misdemeanor assault-family violence involving

his girlfriend and assessed his punishment at 365 days’ confinement. Lavine v.

State, No. 02-12-00452-CR, 2014 WL 345684, at *1 (Tex. App.—Fort Worth

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       See Tex. R. App. P. 47.4.
Jan. 30, 2014, no. pet.) (mem. op., not designated for publication).           Lavine

appealed to this court, asserting that the trial court abused its discretion by

allowing the State to introduce three photographs depicting a broken clock that

police found in the couple’s kitchen and by allowing a probation officer to testify

that Lavine, due to anger issues, was not a suitable candidate for probation when

no evidence was introduced regarding the officer’s training, qualifications, or

experience to give an expert opinion. Id. In affirming the trial court’s judgment,

this court held that Lavine had failed to preserve either of these issues for our

review. Id.

      Lavine later filed two pro se, 11.09, post-conviction applications for writ of

habeas corpus in the trial court. See Tex. Code Crim. Proc. Ann. art. 11.09

(West 2015) (providing a person confined on a misdemeanor charge may apply

for a writ of habeas corpus). In his first writ, Lavine argued that he received

ineffective assistance of counsel at trial. Specifically, Lavine argued that his trial

counsel failed to file any pretrial motions or challenges to the charging

instrument; that counsel failed to object to the above-mentioned officer’s

testimony; that counsel failed to object to the admittance of the photographs of

the broken clock; and that counsel violated the Texas Disciplinary Rules of

Professional Conduct. The trial court denied Lavine’s application.

      In its order denying the first application, the trial court concluded that

Lavine had failed to allege any specific defects in the charging instrument that

should have been raised by counsel; that Lavine had failed to allege any basis


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for any pretrial motions or applicable defenses; that Lavine had failed to allege

any basis that counsel’s performance was deficient by not objecting to the

officer’s testimony or the admittance of the complained-of photographs; and that

Lavine had not specified how counsel allegedly violated the disciplinary rules.

      The trial court further concluded that in addition to the photographs and the

complained-of testimony, the contents of which evinced that Lavine has anger

issues, “much more compelling evidence was admitted to support the State’s

theory that [Lavine] had an anger problem.” Specifically, the trial court cited to

record evidence that the complainant in this case testified that she feared for her

life because of Lavine’s words and actions; that Lavine had previously slapped,

pushed, and punched her prior to the instant offense; and that Lavine had

threatened to have her killed.

      Later, Lavine filed his second 11.09 application for writ of habeas corpus,

the denial of which Lavine now appeals. In his second writ, Lavine again argued

that he received ineffective assistance of counsel. He also argued that the State

had violated Brady v. Maryland by not disclosing to him “evidence of [his]

successful completion” of the Batterer’s Intervention and Prevention Program.

373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97 (1963).            Regarding his ineffective

assistance of counsel claim, Lavine’s arguments are nearly identical to those

found in his first application except that instead of specifically arguing that his trial

counsel had failed to object to the admittance of the three pictures of the broken

clock, Lavine argued generally that “photographs should have been objected


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to . . . through pre-trial motions.” The record indicates that the State introduced

twenty-two photographs—some of which depict the condition of the couple’s

apartment taken when police investigated this offense, and other photographs of

the complainant taken shortly after she went to the police regarding this offense.

      In its denial of Lavine’s second application, the trial court found that much

of Lavine’s second application included “several grounds that were addressed in

his previous 11.09 application.” Additionally, the trial court found that Lavine

would have been aware that he had completed the Batterer’s Intervention and

Prevention Program, and the trial court concluded that Lavine’s completion of the

program would not fall under the requirements of Brady. The trial court also

found that Lavine had not specified which photographs that Lavine was

complaining of and thus concluded that Lavine’s ground regarding “photographs”

be denied because “his vague claim does not satisfy his burden of proof.” See

Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002) (“To prevail

upon a post-conviction writ of habeas corpus, applicant bears the burden of

proving, by a preponderance of the evidence, the facts that would entitle him to

relief.”). Moreover, the trial court concluded that “[b]ecause of the amount of

compelling evidence pointing to [Lavine’s] guilt, [Lavine] was not prejudiced by

any alleged error by his counsel.” This appeal followed.

                            III. STANDARD OF REVIEW

      We generally review a trial court’s decision on a post-conviction application

for habeas corpus under an abuse-of-discretion standard. See Ex parte Garcia,


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353 S.W.3d 785, 787 (Tex. Crim. App. 2011).           An applicant seeking post-

conviction habeas corpus relief bears the burden of establishing by a

preponderance of the evidence that the facts entitle him to relief.        Ex parte

Richardson, 70 S.W.3d at 870. We consider the evidence presented in the light

most favorable to the habeas court’s ruling. Kniatt v. State, 206 S.W.3d 657, 664

(Tex. Crim. App.), cert denied, 549 U.S. 1052 (2006). This deferential review

applies even when the trial court’s findings are implied rather than explicit and

based on affidavits rather than live testimony. Ex parte Wheeler, 203 S.W.3d

317, 325–26 (Tex. Crim. App. 2006). We afford almost total deference to a trial

court’s findings in habeas proceedings, particularly when those findings are

based upon an evaluation of credibility and demeanor. Ex parte Amezquita, 223

S.W.3d 363, 367 (Tex. Crim. App. 2006).

                                  IV. DISCUSSION

      A.    Lavine’s Brady Claim

      In part of his application, Lavine argued that the State violated Brady rules

by not disclosing to him “evidence of [his] successful completion” of the Batterer’s

Intervention and Prevention Program. Lavine provided no evidence of this bare

assertion. In its response, however, the State provided record evidence to the

trial court that it was Lavine’s counsel who informed the State that Lavine had

completed the program.

      For purpose of a Brady claim, a habeas applicant must initially show that

the State failed to disclose evidence which had been known to the prosecution


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but unknown to the defense. Ex parte Miles, 359 S.W.3d 647, 665 (Tex. Crim.

App. 2012) (citing United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 2397

(1976)).

      Viewing the record evidence in the light most favorable to the trial court’s

ruling, we hold that Lavine failed to establish by a preponderance of the evidence

that the State was aware of Lavine’s completion of the Batterer’s Intervention and

Prevention Program but that he was not. See Ex parte Miles, 359 S.W.3d at 665.

Thus, the trial court did not abuse its discretion by denying Lavine’s application

regarding his Brady claim.

      B.    Assistance of Counsel

      To establish ineffective assistance of counsel, Lavine must show by a

preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have

been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009).

      In evaluating the effectiveness of counsel under the first prong, we look to

the totality of the representation and the particular circumstances of each case.

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).           Review of

counsel’s representation is highly deferential, and the reviewing court indulges a

strong presumption that counsel’s conduct fell within a wide range of reasonable




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representation. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);

Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).

        The second prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair trial. 466 U.S. at 687,

104 S. Ct. at 2064. In other words, an appellant must show there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Id. at 694, 104 S. Ct. at 2068.

        Failure to make the required showing of either deficient performance or

sufficient prejudice defeats the claim of ineffectiveness. Id. at 700, 104 S. Ct. at

2071.

        Here, as the trial court found and concluded, the majority of Lavine’s

claims in his applications that he received ineffective assistance at trial are bare

assertions without any evidence or explanation as to how or why these

assertions rendered his trial counsel ineffective, including his unsupported claims

that his trial counsel violated the disciplinary rules, failed to attack the charging

instrument, or failed to file any pretrial motions. Ex parte Richardson, 70 S.W.3d

at 870; see Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983) (“Absent

evidence in the record, a court cannot consider a habeas petitioner’s bald

assertions on a critical issue in his pro se petition . . . to be of probative

evidentiary value.”). We therefore conclude that the trial court did not abuse its

discretion by denying Lavine’s application based on these claims.




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      The only claims that Lavine makes that have any reference to the record

evidence would be his claims that certain testimony should have been objected

to and that “photographs” should not have been admitted without objection. But

as the trial court concluded, even assuming these alleged errors constituted

ineffective assistance of counsel, Lavine has failed to demonstrate how, but for

these alleged deficiencies in counsel’s performance, the outcome of his jury trial

would have been different. Davis, 278 S.W.3d at 352.

      Indeed, as the trial court concluded, the jury heard other, much more

compelling evidence than the complained-of evidence.            Specifically, the

complainant testified that during the last months that she was in a relationship

with Lavine, he would become physically violent and that she feared for her life

and wanted to end the relationship. The complainant also testified that before

the instant offense, Lavine had previously slapped her, pushed her, and punched

her. The record evidence also indicates that once while complainant was away

from the apartment, Lavine left threatening voice messages.

      The complainant also testified that Lavine was angry with her when she

returned to the apartment on the night of the instant offense and that Lavine

followed her into the restroom and accused her of cheating on him. Lavine then

slapped her in the face and told her to tell him what she had been doing while

away. When the complainant retreated to her bedroom, Lavine then pushed her

onto the bed, got on top of her, and put his hands around her throat while he

asked her questions about where and with whom she had been. According to


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complainant’s testimony, Lavine then told her that she did not know who she was

“messing with” and that he would kill her and no one would ever know.

      Later, Lavine forced his way inside the apartment after being locked out

and the complaint ran outside to seek assistance, but Lavine grabbed her, with

one hand under her arm and another grabbing her hair, and pulled her back

upstairs and into the apartment. Lavine then forced the victim into the bedroom

and told her that he was not going to go to sleep and that if she did anything

“slick,” he would have someone kill her.

      Viewing this evidence in the light most favorable to the trial court’s ruling

that Lavine failed to demonstrate by a preponderance of the evidence how, but

for counsel’s alleged unprofessional errors in not objecting to the complained-of

evidence, there is a reasonable probability that the result of his trial would have

been different, we conclude that the trial court did not abuse its discretion by

denying Lavine’s application. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068;

Ex parte Garcia, 353 S.W.3d at 787.

                                 V. CONCLUSION

      We affirm the trial court’s denial of Lavine’s post-conviction application for

writ of habeas corpus.




                                                   /s/ Bill Meier
                                                   BILL MEIER
                                                   JUSTICE


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PANEL: WALKER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 16, 2016




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