Arthur Kelvin Lovell v. State ( 2007 )

Opinion to: SJR TGT SN TJ EVK ERA GCH LCH JB

Opinion issued January 4, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00152-CR

ARTHUR KELVIN LOVELL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Cause No. 1004084

MEMORANDUM OPINION

Appellant Arthur Kelvin Lovell pleaded guilty to the second-degree felony offense of burglary of a habitation with intent to commit theft without an agreed punishment recommendation from the State.  Tex. Pen. Code Ann. § 30.02(a)(1), (c)(2)  (Vernon 2003).  After the preparation of a pre-sentence investigation report and an evidentiary hearing, the trial court assessed punishment at eight years’ confinement. In four issues, Lovell contends he received ineffective assistance of counsel during his sentencing hearing because counsel (1) failed to file a written motion for continuance to obtain an additional mental health evaluation, (2) failed to move to withdraw Lovell’s guilty plea, (3) opened the door to inadmissible victim impact testimony, and (4) made an inadequate and affirmatively prejudicial closing argument requesting prison time instead of community supervision.  We conclude that Lovell has failed to demonstrate that he received ineffective assistance of counsel at his sentencing hearing.  We therefore affirm.

Background

          In October 2004, Lovell broke into the home of his neighbor, Mitchell Fontenot.  Fontenot lives with his wife, Kimberly, and their two children, Maya and Cyrus.  During the break-in, Lovell broke several windows and splashed bleach throughout the house.  Lovell also stole an assortment of undergarments and clothing belonging to Kimberly, Maya, and Cyrus. 

Ineffective Assistance of Counsel

Standard of Review

To show ineffective assistance of counsel, a defendant must demonstrate both (1) that his counsel’s performance fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.  Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App. 2005).  A reasonable probability is a probability sufficient to undermine confidence in the outcome.  Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).  A defendant has the burden to establish both of these prongs by a preponderance of the evidence, and a failure to make either showing defeats his ineffectiveness claim.  Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).  We presume that counsel’s conduct falls within the wide range of reasonable professional assistance, and we will find counsel’s performance deficient only if the conduct is so outrageous that no competent attorney would have engaged in it.  Andrews, 159 S.W.3d at 101.  We cannot speculate beyond the record provided, so any allegation of ineffectiveness must be firmly founded in the record, and the record affirmatively must demonstrate the alleged ineffectiveness.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  The Strickland test applies to the punishment phase of a non-capital trial, as well as guilt-innocence.  Hernandez v. State, 988 S.W.2d 770, 772–74 (Tex. Crim. App. 1999).

In most cases, an undeveloped record on direct appeal is insufficient to satisfy the dual prongs of Strickland because the reasonableness of counsel’s decisions often involves facts not appearing in the appellate record.  Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).  It is therefore critical that the defendant obtain the necessary record in the trial court to rebut the Strickland presumption that counsel’s conduct was strategic.  Thompson, 9 S.W.3d at 814; McCullough v. State, 116 S.W.3d 86, 92 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).  This kind of record is best developed in a hearing on a motion for new trial, or by application for a writ of habeas corpus.  See Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); McCullough, 116 S.W.3d at 92.  Without evidence of the strategy and methods involved concerning counsel’s actions at trial, an appellate court should presume a sound trial strategy.  See Thompson, 9 S.W.3d at 814.  If no reasonable trial strategy could justify trial counsel’s conduct, counsel’s performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects trial counsel’s subjective reasons for acting as he did.  Andrews, 159 S.W.3d at 102.  

Motion for Continuance

          In his first issue, Lovell contends his trial counsel was ineffective in failing to file a written motion for continuance to obtain an additional mental health evaluation.  At the beginning of the sentencing hearing, Lovell’s counsel made an oral motion for continuance to obtain an additional mental health evaluation. Counsel alleged that before the hearing, he had difficulty communicating with Lovell, and that Lovell was acting in a disorderly manner in his holding cell.  The trial court denied the motion, noting that Lovell already had three previous mental health evaluations, each finding him competent to stand trial and legally sane.  The most recent evaluation occurred on November 22, 2005, a few months before the February 16, 2006 sentencing hearing. 

“A motion for continuance not in writing and not sworn preserves nothing for review.”  Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999).  To establish ineffective assistance of counsel based on the failure to file a written and sworn motion for continuance, the appellant must demonstrate that the trial court would have erred in denying a sworn and written motion for continuance made during trial.  See Vaughn v. State, 888 S.W.2d 62, 74 (Tex. App.—Houston [1st Dist.] 1994), aff’d, 931 S.W.2d 564, 566–67 (Tex. Crim. App. 1996).  A trial court’s decision to grant or deny a motion for continuance is discretionary. Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995).  “To establish an abuse of discretion, there must be a showing that the defendant was actually prejudiced by the denial of his motion.”  Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996).  A trial court abuses its discretion where the denial of a continuance results in demonstrated and specific prejudice.  Id.; Heiselbetz, 906 S.W.2d at 511–12; Rosales v. State, 841 S.W.2d 368, 372–73 (Tex. Crim. App. 1992); see also Renteria v. State, No. AP-74829, 2006 WL 2860988, at *5 (Tex. Crim. App. Oct. 4, 2006) (holding that defendant must show specific prejudice to his defense to establish that trial court abused its discretion in refusing to grant continuance).

Lovell contends that he was prejudiced by the denial of the motion for continuance because he was not able to obtain an additional mental health evaluation.  Lovell, however, does not establish any specific prejudice to his cause arising from the trial court’s failure to grant his motion for continuance.  See Janecka, 937 S.W.2d at 468 (holding that assertion of inadequate time to prepare defense does not establish specific prejudice necessary to find abuse of discretion in denying motion for continuance); Heiselbetz, 906 S.W.2d at 512 (holding that bare assertion that counsel did not have enough time to interview potential witnesses does not alone establish prejudice).  The record reflects that Lovell received three mental health evaluations before the sentencing hearing.  In each evaluation, the psychologist found Lovell to be competent to stand trial and legally sane.  Furthermore, two psychologists who examined Lovell found that he could be feigning his symptoms.  On this record, we conclude that the trial court did not abuse its discretion in denying Lovell’s motion for continuance.  See Heiselbetz, 906 S.W.2d at 511 (granting or denying motion for continuance is within trial court’s sound discretion).  Lovell therefore fails to satisfy the second prong of the Strickland test because he cannot show that but for counsel’s unprofessional error, the result of the proceeding would have been different.  466 U.S. at 687–88, 694, 104 S. Ct. at 2064, 2068; Andrews, 159 S.W.3d at 101–02. 

Guilty Plea

          In his second issue, Lovell contends his trial counsel was ineffective in failing to move to withdraw his guilty plea.  During closing argument, defense counsel stated that Lovell has had psychiatric problems for the last fifteen years and cannot be held “responsib[le] for his actions the way a normal person can.” Lovell maintains that if counsel actually believed this, he should have moved to withdraw Lovell’s guilty plea and tried the case to a jury. 

The record demonstrates that the trial court properly admonished Lovell, establishing prima facie proof that he entered his plea knowingly and voluntarily. See Reissig v. State, 929 S.W.2d 109, 112 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d).  The record also contains no evidence of counsel’s reasons for not moving to withdraw the guilty plea and no evidence that Lovell lacked a rational understanding of the proceedings against him.  Lovell has therefore failed to rebut the Strickland presumption that counsel’s conduct was strategic.  See Thompson, 9 S.W.3d at 814; McCullough, 116 S.W.3d at 92–93.  Accordingly, Lovell has not satisfied the first prong of Strickland.  466 U.S. at 687–88, 104 S. Ct. at 2064–65.

Victim Impact Testimony

In his third issue, Lovell contends his trial counsel was ineffective in opening the door to inadmissible victim impact testimony during the sentencing hearing. During the hearing, the following exchange occurred:

[DEFENSE COUNSEL]: And so I guess I think the primary question [that] is going to come from this is where Arthur should go from here.  Whether it should be to prison, to a hospital, or to some other place.  And the fact is that as long as he’s not living right next to you with open access to your children—

[MR. FONTENOT]: Well, I’m concerned also about the community at large.

[DEFENSE COUNSEL]: Certainly.

[MR. FONTENOT]: You know, we happened to be the objects of his desire.

[DEFENSE COUNSEL]: But if he was in a hospital or if he was in prison, you’d actually prefer a hospital; is that correct?

[MR. FONTENOT]: I can’t say what I would prefer because as a father, I’ve had to deal with my anger towards Arthur.  And as a protector, my own sense of what I can do to protect my family.  So, if I were just purely taken [sic] the crime for what the crime was and from what it looked like was going to happen at some point, then I would say, yeah, Arthur needs to be locked away.  How long, I don’t know; but in conjunction with that, yeah, I would like to see Arthur get some help because Arthur needs help obviously.

Victim impact evidence is designed to show the victim’s uniqueness as an individual human being, and is a way to inform the sentencing authority about the specific harm caused by the crime in question.  Salazar v. State, 90 S.W.3d 330, 335 (Tex. Crim. App. 2002).  If the probative value of victim impact evidence outweighs the prejudicial effect, victim impact evidence is admissible in the punishment phase of non-capital offense trials.  Id. at 335 & n.5.  The victim impact evidence must also bear on the defendant’s personal responsibility and moral culpability.  Id. at 335; Williams v. State, 176 S.W.3d 476, 483 (Tex. App.—Houston [1st Dist.] 2004, no pet.).  “The wishes of the victim’s family members as to the defendant’s fate fall beyond the parameters of victim-impact evidence and are not admissible.”  Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003).

The record is silent as to why counsel sought to elicit statements from Fontenot regarding his opinion on Lovell’s punishment.  It appears as though defense counsel’s punishment strategy may have been to demonstrate that the witness had some sympathy for Lovell that could inspire a lower prison sentence, followed by a civil commitment. Regardless, Lovell has failed to rebut the Strickland presumption that counsel’s conduct was strategic.  See Thompson, 9 S.W.3d at 814; McCullough, 116 S.W.3d at 92–93; see also Tong v. State, 25 S.W.3d 707, 713–14 (Tex. Crim. App. 2000) (holding counsel’s failure to object to victim impact testimony did not constitute ineffective assistance of counsel when record was silent as to counsel’s strategy).  We overrule Lovell’s third issue because he has not satisfied the first prong of Strickland.  466 U.S. at 687–88, 104 S. Ct. at 2064–65.

Closing Argument

          In his fourth issue, Lovell contends his counsel was ineffective because counsel made an inadequate and affirmatively prejudicial closing argument requesting prison time instead of community supervision. During closing arguments, defense counsel made the following statement:

And I’d ask the Court to also take into consideration that [Lovell] has no prior felonies.  He has no prior felony convictions, which would make him probation eligible for that to be available to the Court in its wisdom.  But what we really want, Judge, is we want for him to get the minimum sentence of two years.  And then we want the State to take action and have him civilly committed, which they have the power to do.

Lovell maintains that he was eligible for community supervision, he filed a motion for community supervision, and it is defense counsel’s job to ask for community supervision rather than confinement.

The record is silent as to why counsel asked for confinement rather than community supervision.  Once again, it appears as though defense counsel’s punishment strategy may have been to obtain hospitalization for Lovell, instead of a lengthy prison term.[1]  Lovell has therefore failed to rebut the Strickland presumption that counsel’s conduct was strategic.  See Thompson, 9 S.W.3d at 814; McCullough, 116 S.W.3d at 92–93.  Accordingly, Lovell has not satisfied the first prong of Strickland.  466 U.S. at 687–88, 104 S. Ct. at 2064–65.

Conclusion

We hold that Lovell has failed to demonstrate that he received ineffective assistance of counsel at his sentencing hearing.  We therefore affirm the judgment of the trial court.

                                                          Jane Bland

                                                          Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

Do not publish.  Tex. R. App. P. 47.2(b).

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[1] The maximum sentence for a second-degree felony is twenty years’ confinement and a $10,000 fine. Tex. Pen. Code Ann. § 12.33 (Vernon 2003).