Opinion issued July 10, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00379-CR
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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
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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)
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(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
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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
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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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