Opinion issued July 10, 2014




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-13-00379-CR
                            ———————————
                      ROBERT JOSEPH LEVY, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                   On Appeal from the 182nd District Court
                           Harris County, Texas
                       Trial Court Case No. 1344743


                          MEMORANDUM OPINION

      A jury convicted appellant Robert Joseph Levy of robbery. See TEX. PENAL

CODE ANN. § 29.02 (West 2011). The trial court found it true that Levy had been

twice convicted of burglary, and it sentenced him to thirty-five years in prison. See

id. § 12.42(b). Levy now appeals, arguing that his counsel was ineffective at his
punishment hearing. He claims that the lawyer failed to adequately investigate his

history of mental illness or offer it as mitigation evidence at the punishment

hearing. However, because Levy has failed to overcome the strong presumption

that his counsel exercised reasonable professional judgment for reasons of sound

trial strategy, we affirm.

                                   Background

      Levy robbed a stranger at a Houston motel. After knocking at the door of the

complainant’s room, Levy found the door unlocked and slightly ajar, and he

entered uninvited. He told the complainant he would rob him, pushed him down

onto the bed, and beat him with his fists. He demanded money and absconded with

the complainant’s cash, mobile phone, and car keys.

      A grand jury indicted Levy for robbery. Before trial, Levy filed a motion

asking that Harris County Forensic Psychiatric Services evaluate his sanity and

competence to stand trial. A licensed psychologist, Ramon Laval, Ph.D.,

performed the assessments. He interviewed Levy and reviewed both his jail

medical chart and criminal record. Dr. Laval submitted two reports addressing

sanity at the time of the offense and competence to stand trial. Although the reports

concluded that Levy had been sane and that was he fit for trial, they nonetheless

also indicated that he suffered from mental illness. Under the heading “Clinical

Observations and Findings,” Dr. Laval wrote in each report:



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A thirty-four year-old African-American male, Mr. Robert Levy
presented to this evaluation as cooperative and responsive to
questions. He was calm and alert, and oriented with respect to place,
time, person and situation. His affect was constricted in range, and his
mood was dysphoric. Regarding his current emotional state, Mr. Levy
remarked, “I’m depressed.” He denied suicidal thoughts. He denied
aggressive impulses explaining “I’m not like that, not violent.”
Regarding hallucinations, he indicated that he hears “crazy stuff.”
Asked to elaborate, he responded, “All kinds of crazy stuff but I try to
block them out.” He reported that he sometimes sees “my friend; he
died in my lap in ’97, a gunshot wound. That’s why I said I would
never take anything from nobody. I’ve always helped people, even
when I was on drugs.” He did not disclose, and there was no evidence
of paranoid thoughts or delusional ideas in his presentation. His
speech was clear and coherent, and of normal volume, tone and rate of
speed. His thought processes were logical, organized and goal-
directed. He presented as cognitively intact, seemed not to be
responding to or preoccupied with internal stimuli, and there was no
evidence of impairment in his attention concentration or memory
functions.

....

Regarding mental health issues, Mr. Levy indicated that he started
receiving psychiatric treatment at the age of eighteen. He denied
psychiatric hospitalizations. He noted that the last time he had taken
psychotropic medication was sometime last year. He stated that he is
currently taking Trazodone. Regarding substance abuse, he denied the
use of alcohol but admitted to a history of marijuana, PCP, and crack
cocaine abuse. Mr. Levy’s Harris County Jail medical chart
documents that he underwent an initial psychiatric assessment on
April 22, 2012. It is noted that he had a previous diagnosis of Major
Depressive Disorder which has been “on full remission” prior to this
incarceration. He was noted to be alert and oriented with respect to
place, time and person. He was somber, withdrawn, depressed with a
dysphoric and constricted affect. His thought processes were goal
directed and he denied psychotic symptomatology. He admitted to a
history of PCP, cannabis, and cocaine abuse. He was diagnosed with
Depressive Disorder Not Otherwise Specified and Polysubstance



                                   3
      Dependence. According to records, he is only taking Trazodone for
      depression and to help him sleep.

Under the heading of “Diagnosis,” Dr. Laval wrote: “The results of this evaluation

are consistent with a diagnostic impression of Polysubstance Dependence and

Depressive Disorder Not Otherwise Specified with psychotic symptoms of

questionable validity.”

      After the court received Dr. Laval’s reports, a trial was held. The jury found

Levy guilty of robbery. At the subsequent punishment hearing, Levy stipulated to

nine prior offenses, including two prior convictions for burglary of a habitation,

three convictions for unauthorized use of a motor vehicle, two convictions for

possession of a controlled substance, a conviction for indecent exposure, and a

conviction for theft. The defense rested without offering evidence.

      The State offered a short closing statement in which it directed the court’s

attention to “numerous prior felony convictions” and asserted that Levy “took

advantage of a vulnerable victim in vulnerable circumstances without any

provocation, without any justification.” The State requested a prison sentence

between thirty and forty years. In his closing statement, defense counsel began by

acknowledging that the “criminal history speaks for itself.” He then argued that

Levy nevertheless deserved the minimum twenty-five year sentence, since the

complainant “did not suffer any long-term injuries” and “[t]here was no

hospitalization or medical attention required at the scene.” At the close of the


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hearing, the judge imposed a sentence of thirty-five years in prison. Levy timely

filed notice of appeal.

                                      Analysis

      Levy argues that he received ineffective assistance of counsel at his

punishment hearing because his attorney failed to investigate his history of mental

illness and did not introduce evidence of that history at the hearing.

      Claims of ineffective assistance are evaluated with a two-part test:

(1) whether the attorney’s performance was deficient, i.e., did counsel make errors

so serious that he or she was not functioning as the “counsel” guaranteed by the

Sixth Amendment; and if so, (2) whether that deficient performance prejudiced the

party’s defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984).

      The adequacy of attorney performance is judged against what is reasonable

considering prevailing professional norms. Id. at 688, 104 S. Ct. at 2065. There is a

presumption that, considering the circumstances, a lawyer’s choices were

reasonably professional and motivated by sound trial strategy. Id. at 689, 104 S. Ct.

at 2065. In the face of this presumption, a criminal defendant has the burden of

showing by a preponderance of the evidence that his attorney failed to provide

reasonably effective assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim.

App. 2002).



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      To meet this burden, an ineffective-assistance claim “must be ‘firmly

founded in the record’ and ‘the record must affirmatively demonstrate’ the

meritorious nature of the claim.” Menefield v. State, 363 S.W.3d 591, 592 (Tex.

Crim. App. 2012). In this case, Levy did not present his claim of ineffective

assistance of counsel through a motion for new trial or other procedure allowing

for supplementation of the record in the trial court. When a defendant thus raises

his claim of ineffective assistance of counsel by direct appeal of his conviction, the

Court of Criminal Appeals has observed that “[u]nder normal circumstances, the

record . . . will not be sufficient to show that counsel’s representation was so

deficient and so lacking in tactical or strategic decisionmaking as to overcome the

presumption that counsel’s conduct was reasonable and professional.” Bone, 77

S.W.3d at 833. As the Court has explained, the “reasonableness of counsel’s

choices often involves facts that do not appear in the appellate record.” Rylander v.

State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).

      One reason the record on direct appeal is normally insufficient to show

deficient performance is that it lacks an explanation by trial counsel of the actions

challenged as ineffective. See id. at 111. In this regard, the Court of Criminal

Appeals has held that “trial counsel should ordinarily be afforded an opportunity to

explain his actions before being denounced as ineffective.” Id. If counsel is not

afforded this opportunity, then “an appellate court should not find deficient



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performance unless the challenged conduct was ‘so outrageous that no competent

attorney would have engaged in it.’” Goodspeed v. State, 187 S.W.3d 390, 392

(Tex. Crim. App. 2005).

      With respect to the second prong of Strickland, an error in professional

assistance is prejudicial to a criminal defendant if it had an effect on the judgment.

466 U.S. at 691, 104 S. Ct. at 2066. A defendant need not establish such an effect

by a preponderance of the evidence but need only show “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. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id. As the

Supreme Court explained, “The result of a proceeding can be rendered unreliable,

and hence the proceeding itself unfair, even if the errors of counsel cannot be

shown by a preponderance of the evidence to have determined the outcome.” Id.

I.    Adequate investigation

      Levy argues that his trial counsel conducted an inadequate investigation of

his mental health. He contends that the reports of Dr. Laval should have alerted his

counsel to his history of mental health problems and generated further

investigation. He notes that the record does not contain an Ake motion for

appointment of an expert witness or a motion requesting expenses to appoint a

private investigator. See Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087 (1985)



                                          7
(holding that the State must assure an indigent defendant access to a competent

psychiatrist when the defendant’s sanity at the time of the alleged offense is a

significant factor at trial). He also emphasizes that counsel offered no evidence of

and made no reference to matters of mental health at the punishment hearing.

      Failure to conduct an adequate investigation may constitute ineffective

assistance of counsel. See Wiggins v. Smith, 539 U.S. 510, 521–23, 123 S. Ct.

2527, 2535–36 (2003). As the Supreme Court said in Strickland, “[C]ounsel has a

duty to make reasonable investigations or to make a reasonable decision that

makes particular investigations unnecessary. In any ineffectiveness case, a

particular decision not to investigate must be directly assessed for reasonableness

in all the circumstances, applying a heavy measure of deference to counsel’s

judgments.” 466 U.S. at 691, 104 S. Ct. at 2066.

      Levy relies on several cases in which courts held an attorney who failed to

investigate a client’s mental illness performed deficiently. In Conrad v. State, 77

S.W.3d 424 (Tex. App.—Fort Worth 2002, pet. ref’d), the appellant was convicted

and moved for a new trial. 77 S.W.3d at 425–26. At a hearing on the motion, he

called his trial counsel to testify. Id. On the stand, the attorney testified that he had

relied on the reports of two experts, appointed by the court at the request of the

state, who concluded that the appellant had been sane at the time of his alleged

offense and competent to stand trial. Id. at 426. Counsel admitted that he had



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neither discussed the reports with their authors nor performed an independent

investigation of the appellant’s mental health. Id. For example, he had not spoken

with physicians who treated the appellant at the hospital or reviewed the

appellant’s medical records. Id.

      Similarly, in Freeman v. State, 167 S.W.3d 114 (Tex. App.—Waco 2005, no

pet.), the appellant’s new attorney, appointed post-trial, filed a motion for new

trial. 167 S.W.3d at 118 n.2. Appellant’s trial counsel testified at the subsequent

hearing. Id. at 119. He “conceded that he did not investigate [the appellant’s]

mental health history, even though [he] knew [the appellant] had a history of

mental health issues.” Id. As the evidence adduced at the hearing showed, the

appellant had a long list of mental health problems that included out-patient

treatment and hospitalizations. Id. Faced with this evidence, the court of appeals

found that trial counsel had conducted an inadequate investigation. Id. at 119–20.

      The third case relied upon by Levy, Bouchillon v. Collins, 907 F.2d 589 (5th

Cir. 1990), reached the Fifth Circuit through a federal petition for habeas corpus.

907 F.2d at 591. The petitioner’s trial counsel testified at the federal habeas

hearing. As the Fifth Circuit described it, “Bouchillon’s trial counsel did not deny

that Bouchillon told him he had mental problems, had been institutionalized and

was on medication.” Id. at 596. Yet, “[h]e made no phone calls, did not request

Bouchillon’s medical records, did not talk to witnesses regarding Bouchillon’s



                                         9
mental problems—in short, he did no investigation of any kind because he said that

Bouchillon appeared rational.” Id. Given these omissions, the Fifth Circuit

concluded that counsel’s performance fell below reasonable professional standards.

Id. at 597.

      Each of these cases is distinguishable from the one before us. In all three

cases, the appellants supported their claims of ineffective assistance of counsel

with evidence adduced at hearings on motions for new trial or a petition for a writ

of habeas corpus. The evidence included testimony of trial counsel addressing

what was known about the appellant’s mental health and what steps were taken in

response that information. This is not true of the record before us, which is entirely

devoid of any explanation from Levy’s trial counsel.

      Levy argues that the reports authored by Dr. Laval should have prompted his

trial counsel to conduct further investigations. But even if we assume that to be the

case, the record is silent as to what investigative steps counsel actually may have

taken and what conclusions he may have subsequently drawn. “We will not assume

that counsel did not investigate a defense when the record is merely silent as to the

depth of counsel’s investigation.” Brown v. State, 129 S.W.3d 762, 767 (Tex.

App.—Houston [1st Dist.] 2004, no pet.) (citing Hernandez v. State, 726 S.W.2d

53, 57 (Tex. Crim. App. 1986)). The absence from the record of a motion to

appoint an expert or private investigator and counsel’s failure to broach issues of



                                         10
mental health at the punishment hearing are not to the contrary. Counsel was not

given an opportunity to explain these omissions, and “[w]hen the record is silent as

to counsel’s trial strategy, an appellate court may not speculate about why counsel

acted as he did.” Id. (citing Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim.

App. 1994)).

         Absent an explanation from Levy’s trial counsel for not seeking appointment

of a psychological expert or investigator, we must only find deficient performance

if the challenged conduct was so outrageous that no competent attorney would

have done likewise. See Goodspeed, 187 S.W.3d at 392. Even assuming that any

competent attorney would have spoken with a psychological expert about the

reports, the absence of a motion to appoint an expert does not conclusively

establish that Levy’s counsel failed to consult with one.

II.      Presentation of mitigating evidence

         Levy also contends that his trial counsel should have offered evidence of his

mental health problems at his punishment hearing and that failure to do so was

ineffective assistance of counsel. In particular, he argues that his counsel should

have introduced Dr. Laval’s reports and invoked them in his argument to the trial

court.

         Apart from Dr. Laval’s reports, Levy does not identify what mental health

evidence his trial counsel could have offered but neglected to produce. Levy has



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the burden of establishing that his counsel’s performance was deficient by a

preponderance of the evidence, Bone, 77 S.W.3d at 833, and “‘the record must

affirmatively demonstrate’ the meritorious nature of the claim.” Menefield, 363

S.W.3d at 592. Aside from his reliance on Dr. Laval’s reports, Levy’s claim that

his counsel was ineffective in failing to offer mental health evidence does not meet

this standard. See Lee v. State, 186 S.W.3d 649, 659 (Tex. App.—Dallas 2006, pet.

ref’d) (holding that appellant did not demonstrate ineffective assistance of counsel

when his claim did “not identify the specific witnesses appellant could have called,

what their testimony would have been, and how that testimony would reasonably

have resulted in a different outcome.”).

      The record before us does not contain a statement by trial counsel explaining

the reasons for the actions he took, including the decision not to introduce or rely

upon Dr. Laval’s reports at the punishment hearing. Since the record is silent as to

counsel’s strategy, we will not find deficient performance unless the conduct Levy

now challenges was so outrageous that no competent attorney would have engaged

in it. See Goodspeed, 187 S.W.3d at 392; Brown, 129 S.W.3d at 767.

      Dr. Laval’s reports, quoted above, were not unambiguously helpful for the

defense: they recognized that Levy suffered from certain mental illnesses but they

also described him as “cognitively intact” and capable of “thought processes [that]

were logical, organized and goal-directed.” While the former aspect of the report



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could have been seen as mitigating Levy’s guilt, the latter aspect could have been

regarded as confirming his responsibility. Likewise, as the State argues in its brief,

the reports described a history of drug abuse that could have weighed negatively by

the trial court. Finally, the disorders diagnosed, “Depressive Disorder Not

Otherwise Specified and Polysubstance Dependence,” were not of such striking

severity or plainly exculpatory character that only an incompetent attorney would

fail to bring them to the court’s attention.

                                      Conclusion

      The record is silent as to trial counsel’s reasons for his professional

judgments that are now challenged as deficient performance. We overrule Levy’s

claims on direct appeal that his trial counsel furnished ineffective assistance by

failing to investigate his mental health and by failing to present evidence or

argument about his mental health at the punishment hearing. Accordingly, we

affirm the judgment of the trial court.




                                                Michael Massengale
                                                Justice

Panel consists of Chief Justice Radack, Justice Massengale, and Justice Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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