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Lovings, Carl Dion

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,

THE STATE OF TEXAS, Appellee. _______________________________________________

On Petition for Discretionary Review from the Fourteenth Court of Appeals in No. 14-15-00167-CR affirming the conviction in cause number 1419029 From the 177th District Court of Harris County, Texas _______________________________________________

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW _______________________________________________

ORAL ARGUMENT REQUESTED ALEXANDER BUNIN Chief Public Defender Harris County, Texas

JANI MASELLI WOOD Assistant Public Defender Harris County, Texas TBN. 00791195 1201 Franklin Street, 13th Floor Houston, Texas 77002 Phone: (713) 368-0016 Fax: (713) 368-9278 June 1, 2016 Counsel for Appellant May 29, 2016

IDENTITY OF PARTIES AND COUNSEL

Appellant: Carl Dion Lovings TDCJ-ID# 01984211 Michael Unit 2664 FM 2054 Tennessee Colony, TX 75886

Trial Prosecutor: Cheryl Ann Williamson Nick Socias Appellate Prosecutor Carly Dessauer Assistant District Attorneys Harris County, Texas 1201 Franklin, 6th Floor Houston, Texas 77002

Defense Counsel at Trial: Gary Polland 2211 Norfolk Street, Suite 920 Houston, TX 77098

Presiding Judge: Hon.Ryan Patrick 177th District Court Harris County, Texas 1201 Franklin, 19th floor Houston, Texas 77002

Defense Counsel on Appeal: Jani Maselli Wood Assistant Public Defender Harris County, Texas 1201 Franklin, 13th Floor Houston, Texas 77002

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Table of Contents Identity of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Ground for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Reason for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Credibility of the complainant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Discussion of “medical records” during closing argument by the State:.. . 10

Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Ground One: This was a one witness trial. The only evidence to support the conviction was offered through inadmissible hearsay and an inadmissible credibility determination from the police officer. Without that evidence, there was no other evidence to convict. The trial attorney improperly objected to the credibility determination and wholly failed to object to the “medical” evidence offered. Did the Court of Appeals err in determining Mr. Lovings received effective assistance of counsel? .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

The Court of Appeals agrees the evidence was inadmissible.. . . . . . . . . . . 13 The Court of Appeals misapplied precedent from this Court.. . . . . . . . . . 13 The credibility determination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Mr. Lovings was egregiously harmed by this testimony.. . . . . . . . . . . . . . . 17

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The Court of Appeals erred in determining Mr. Lovings was effectively represented - there can be no confidence in this verdict.. . . . . . . . . . . . . . 18

Prayer for Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

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INDEX OF AUTHORITIES PAGE Cases:

Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005) . . . . . . . . . . . . . . . . . . . . . 13, 14

Ayala v. State, 352 S.W.2d 955 (Tex. Crim. App. 1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Cannon v. State, 668 S.W.2d 401 (Tex.Crim.App.1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Fuller v. State, 224 S.W.2d 823 (Tex. App. – Texarkana 2007, no pet.) . . . . . . . . . . . . . . . 17

Lovings v. State, 14-15-00167-CR, 2016 WL 1237875 (Tex. App.—Houston [14th Dist.] Mar. 29, 2016, no. pet. h.). . . . . . . passim

Reynolds v. State, 227 S.W.3d 355 (Tex. App – Texarkana 2007, no pet.) . . . . . . . . . . . . . . . 17

Schutz v. State, 63 S.W.3d 442 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Yount v. State, 872 S.W.2d 706 (Tex. Crim. App. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

-5-Rules and Statutes TEX. R. EVID. 608(A)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 TEX. R. APP. P. 66.3(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

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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.

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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).

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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?

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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

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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.’

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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:

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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,

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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.

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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:

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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.

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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.

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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.

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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

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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

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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

-23-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

-24-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

-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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counsel's performance was deficient. We overrule appellant's second issue.

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