Kevin Leon Lucien v. State ( 2020 )

IN THE
TENTH COURT OF APPEALS
No. 10-18-00241-CR
KEVIN LEON LUCIEN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 361st District Court
Brazos County, Texas
Trial Court No. 16-02396-CRF-361
MEMORANDUM OPINION
Kevin Lucien appeals from a conviction for injury to a child with serious bodily
injury. TEX. PENAL CODE ANN. § 22.04(a)(1), (e). In his sole issue, Lucien complains that
he received ineffective assistance of counsel due to his counsel's failure to object to the
introduction of medical records which constituted hearsay and contained improper
evidence of extraneous bad acts committed against the victim's twin brother and mother
as well as evidence of a CPS proceeding. Because we find no reversible error, we affirm
the judgment of the trial court.
INEFFECTIVE ASSISTANCE OF COUNSEL
In order to prevail on a claim of ineffective assistance of counsel, an appellant must
satisfy a two-prong test. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). First, the
appellant must show that counsel was so deficient as to deprive appellant of his Sixth
Amendment right to counsel. Strickland, 466 U.S. at 687. Second, the appellant must
show that the deficient representation was prejudicial and resulted in an unfair trial. Id.
To satisfy the first prong, the appellant must show that his counsel's representation was
objectively unreasonable. Id.; Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).
To satisfy the second prong, the appellant must show that there is "a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different." Thompson, 9 S.W.3d at 812. A reasonable probability exists
if it is enough to undermine the adversarial process and thus the outcome of the trial. See
Strickland, 466 U.S. at 694; Mallett v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001).
A failure to make a showing under either prong of Strickland defeats a claim for
ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003).
Thus, we need not examine both prongs if one cannot be met. Strickland, 466 U.S. at 697.
The appellate court looks to the totality of the representation and the particular
Lucien v. State Page 2
circumstances of each case in evaluating the effectiveness of counsel. Thompson, 9 S.W.3d
at 813. The appellant bears the burden of proving by a preponderance of the evidence
that counsel was ineffective, and an allegation of ineffectiveness must be firmly founded
in the record. Thompson, 9 S.W.3d at 813.
Lucien argues that his counsel's failure to object to an exhibit containing medical
records that was admitted without objection constituted ineffective assistance because
the records contained hearsay and inadmissible evidence of the following extraneous bad
acts allegedly committed by him: (1) harm to the victim's twin including pinch marks,
bruising, scalp swelling, and a skull fracture; (2) multiple references to domestic violence
committed against the victim's mother and elder sibling and marijuana use; and (3)
references to the placement of the children with CPS in foster care. Nothing in the records
shows that the jury ever saw the records at the time they were admitted into evidence or
at any time after their admission.
The victim, a three month old infant who was born prematurely at 33 weeks, was
admitted to the hospital with what was ultimately found to be skull fractures on both
sides of the head, brain bleeding, broken ribs, a lacerated liver, retinal hemorrhages of
the right eye, pre-retinal hemorrhages of the left eye which required surgery to prevent
loss of vision, bruising on the nose, petechial bruising on one side of the neck, and an old
arm fracture. Lucien admitted to being the victim's sole caregiver and attempted to give
various explanations for the injuries which were not consistent with the severity of the
Lucien v. State Page 3
child's injuries. Because there is no evidence that the jury ever saw the records and there
was overwhelming evidence of his guilt, Lucien has not shown how there is "a reasonable
probability that, but for counsel's alleged unprofessional errors, the result of the
proceeding would have been different" as required to prevail under the second prong of
Strickland. See Thompson, 9 S.W.3d at 812. Likewise, our review of the entire record does
not show that the outcome of the proceeding would have been different had the records
not been admitted into evidence. Because Lucien has not met the second prong of
Strickland, we overrule Lucien's sole issue.
CONCLUSION
Having found no reversible error, we affirm the judgment of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
Affirmed
Opinion delivered and filed March 11, 2020
Do not publish
[CRPM]
Lucien v. State Page 4