                                                                           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




                                     -2-
                                                  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




                                                            -4-
                                   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




                                                 -5-
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




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    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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                                                                    -25-
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



End of Document                                              © 2016 Thomson Reuters. No claim to original U.S. Government Works.




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