                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-18-00241-CR

KEVIN LEON LUCIEN,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                          From the 361st District Court
                              Brazos County, Texas
                        Trial Court No. 16-02396-CRF-361


                          MEMORANDUM OPINION


      Kevin Lucien appeals from a conviction for injury to a child with serious bodily

injury. TEX. PENAL CODE ANN. § 22.04(a)(1), (e). In his sole issue, Lucien complains that

he received ineffective assistance of counsel due to his counsel's failure to object to the

introduction of medical records which constituted hearsay and contained improper

evidence of extraneous bad acts committed against the victim's twin brother and mother
as well as evidence of a CPS proceeding. Because we find no reversible error, we affirm

the judgment of the trial court.

INEFFECTIVE ASSISTANCE OF COUNSEL

        In order to prevail on a claim of ineffective assistance of counsel, an appellant must

satisfy a two-prong test. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). First, the

appellant must show that counsel was so deficient as to deprive appellant of his Sixth

Amendment right to counsel. Strickland, 466 U.S. at 687. Second, the appellant must

show that the deficient representation was prejudicial and resulted in an unfair trial. Id.

To satisfy the first prong, the appellant must show that his counsel's representation was

objectively unreasonable. Id.; Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).

To satisfy the second prong, the appellant must show that there is "a reasonable

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

would have been different." Thompson, 9 S.W.3d at 812. A reasonable probability exists

if it is enough to undermine the adversarial process and thus the outcome of the trial. See

Strickland, 466 U.S. at 694; Mallett v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001).

        A failure to make a showing under either prong of Strickland defeats a claim for

ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003).

Thus, we need not examine both prongs if one cannot be met. Strickland, 466 U.S. at 697.

        The appellate court looks to the totality of the representation and the particular


Lucien v. State                                                                         Page 2
circumstances of each case in evaluating the effectiveness of counsel. Thompson, 9 S.W.3d

at 813. The appellant bears the burden of proving by a preponderance of the evidence

that counsel was ineffective, and an allegation of ineffectiveness must be firmly founded

in the record. Thompson, 9 S.W.3d at 813.

         Lucien argues that his counsel's failure to object to an exhibit containing medical

records that was admitted without objection constituted ineffective assistance because

the records contained hearsay and inadmissible evidence of the following extraneous bad

acts allegedly committed by him: (1) harm to the victim's twin including pinch marks,

bruising, scalp swelling, and a skull fracture; (2) multiple references to domestic violence

committed against the victim's mother and elder sibling and marijuana use; and (3)

references to the placement of the children with CPS in foster care. Nothing in the records

shows that the jury ever saw the records at the time they were admitted into evidence or

at any time after their admission.

        The victim, a three month old infant who was born prematurely at 33 weeks, was

admitted to the hospital with what was ultimately found to be skull fractures on both

sides of the head, brain bleeding, broken ribs, a lacerated liver, retinal hemorrhages of

the right eye, pre-retinal hemorrhages of the left eye which required surgery to prevent

loss of vision, bruising on the nose, petechial bruising on one side of the neck, and an old

arm fracture. Lucien admitted to being the victim's sole caregiver and attempted to give

various explanations for the injuries which were not consistent with the severity of the


Lucien v. State                                                                       Page 3
child's injuries. Because there is no evidence that the jury ever saw the records and there

was overwhelming evidence of his guilt, Lucien has not shown how there is "a reasonable

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

proceeding would have been different" as required to prevail under the second prong of

Strickland. See Thompson, 9 S.W.3d at 812. Likewise, our review of the entire record does

not show that the outcome of the proceeding would have been different had the records

not been admitted into evidence. Because Lucien has not met the second prong of

Strickland, we overrule Lucien's sole issue.

CONCLUSION

        Having found no reversible error, we affirm the judgment of the trial court.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Affirmed
Opinion delivered and filed March 11, 2020
Do not publish
[CRPM]




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