Ex Parte Terence Danta Lavine

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00135-CR
EX PARTE TERENCE DANTA
LAVINE
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FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY
TRIAL COURT NO. CR-2011-08330-A
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Terence Danta Lavine appeals the trial court’s denial of his post-
conviction application for writ of habeas corpus. We will affirm.
II. BACKGROUND
A jury convicted Lavine of misdemeanor assault-family violence involving
his girlfriend and assessed his punishment at 365 days’ confinement. Lavine v.
State, No. 02-12-00452-CR, 2014 WL 345684, at *1 (Tex. App.—Fort Worth
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See Tex. R. App. P. 47.4.
Jan. 30, 2014, no. pet.) (mem. op., not designated for publication). Lavine
appealed to this court, asserting that the trial court abused its discretion by
allowing the State to introduce three photographs depicting a broken clock that
police found in the couple’s kitchen and by allowing a probation officer to testify
that Lavine, due to anger issues, was not a suitable candidate for probation when
no evidence was introduced regarding the officer’s training, qualifications, or
experience to give an expert opinion. Id. In affirming the trial court’s judgment,
this court held that Lavine had failed to preserve either of these issues for our
review. Id.
Lavine later filed two pro se, 11.09, post-conviction applications for writ of
habeas corpus in the trial court. See Tex. Code Crim. Proc. Ann. art. 11.09
(West 2015) (providing a person confined on a misdemeanor charge may apply
for a writ of habeas corpus). In his first writ, Lavine argued that he received
ineffective assistance of counsel at trial. Specifically, Lavine argued that his trial
counsel failed to file any pretrial motions or challenges to the charging
instrument; that counsel failed to object to the above-mentioned officer’s
testimony; that counsel failed to object to the admittance of the photographs of
the broken clock; and that counsel violated the Texas Disciplinary Rules of
Professional Conduct. The trial court denied Lavine’s application.
In its order denying the first application, the trial court concluded that
Lavine had failed to allege any specific defects in the charging instrument that
should have been raised by counsel; that Lavine had failed to allege any basis
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for any pretrial motions or applicable defenses; that Lavine had failed to allege
any basis that counsel’s performance was deficient by not objecting to the
officer’s testimony or the admittance of the complained-of photographs; and that
Lavine had not specified how counsel allegedly violated the disciplinary rules.
The trial court further concluded that in addition to the photographs and the
complained-of testimony, the contents of which evinced that Lavine has anger
issues, “much more compelling evidence was admitted to support the State’s
theory that [Lavine] had an anger problem.” Specifically, the trial court cited to
record evidence that the complainant in this case testified that she feared for her
life because of Lavine’s words and actions; that Lavine had previously slapped,
pushed, and punched her prior to the instant offense; and that Lavine had
threatened to have her killed.
Later, Lavine filed his second 11.09 application for writ of habeas corpus,
the denial of which Lavine now appeals. In his second writ, Lavine again argued
that he received ineffective assistance of counsel. He also argued that the State
had violated Brady v. Maryland by not disclosing to him “evidence of [his]
successful completion” of the Batterer’s Intervention and Prevention Program.
373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97 (1963). Regarding his ineffective
assistance of counsel claim, Lavine’s arguments are nearly identical to those
found in his first application except that instead of specifically arguing that his trial
counsel had failed to object to the admittance of the three pictures of the broken
clock, Lavine argued generally that “photographs should have been objected
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to . . . through pre-trial motions.” The record indicates that the State introduced
twenty-two photographs—some of which depict the condition of the couple’s
apartment taken when police investigated this offense, and other photographs of
the complainant taken shortly after she went to the police regarding this offense.
In its denial of Lavine’s second application, the trial court found that much
of Lavine’s second application included “several grounds that were addressed in
his previous 11.09 application.” Additionally, the trial court found that Lavine
would have been aware that he had completed the Batterer’s Intervention and
Prevention Program, and the trial court concluded that Lavine’s completion of the
program would not fall under the requirements of Brady. The trial court also
found that Lavine had not specified which photographs that Lavine was
complaining of and thus concluded that Lavine’s ground regarding “photographs”
be denied because “his vague claim does not satisfy his burden of proof.” See
Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002) (“To prevail
upon a post-conviction writ of habeas corpus, applicant bears the burden of
proving, by a preponderance of the evidence, the facts that would entitle him to
relief.”). Moreover, the trial court concluded that “[b]ecause of the amount of
compelling evidence pointing to [Lavine’s] guilt, [Lavine] was not prejudiced by
any alleged error by his counsel.” This appeal followed.
III. STANDARD OF REVIEW
We generally review a trial court’s decision on a post-conviction application
for habeas corpus under an abuse-of-discretion standard. See Ex parte Garcia,
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353 S.W.3d 785, 787 (Tex. Crim. App. 2011). An applicant seeking post-
conviction habeas corpus relief bears the burden of establishing by a
preponderance of the evidence that the facts entitle him to relief. Ex parte
Richardson, 70 S.W.3d at 870. We consider the evidence presented in the light
most favorable to the habeas court’s ruling. Kniatt v. State, 206 S.W.3d 657, 664
(Tex. Crim. App.), cert denied, 549 U.S. 1052 (2006). This deferential review
applies even when the trial court’s findings are implied rather than explicit and
based on affidavits rather than live testimony. Ex parte Wheeler, 203 S.W.3d
317, 325–26 (Tex. Crim. App. 2006). We afford almost total deference to a trial
court’s findings in habeas proceedings, particularly when those findings are
based upon an evaluation of credibility and demeanor. Ex parte Amezquita, 223
S.W.3d 363, 367 (Tex. Crim. App. 2006).
IV. DISCUSSION
A. Lavine’s Brady Claim
In part of his application, Lavine argued that the State violated Brady rules
by not disclosing to him “evidence of [his] successful completion” of the Batterer’s
Intervention and Prevention Program. Lavine provided no evidence of this bare
assertion. In its response, however, the State provided record evidence to the
trial court that it was Lavine’s counsel who informed the State that Lavine had
completed the program.
For purpose of a Brady claim, a habeas applicant must initially show that
the State failed to disclose evidence which had been known to the prosecution
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but unknown to the defense. Ex parte Miles, 359 S.W.3d 647, 665 (Tex. Crim.
App. 2012) (citing United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 2397
(1976)).
Viewing the record evidence in the light most favorable to the trial court’s
ruling, we hold that Lavine failed to establish by a preponderance of the evidence
that the State was aware of Lavine’s completion of the Batterer’s Intervention and
Prevention Program but that he was not. See Ex parte Miles, 359 S.W.3d at 665.
Thus, the trial court did not abuse its discretion by denying Lavine’s application
regarding his Brady claim.
B. Assistance of Counsel
To establish ineffective assistance of counsel, Lavine must show by a
preponderance of the evidence that his counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009).
In evaluating the effectiveness of counsel under the first prong, we look to
the totality of the representation and the particular circumstances of each case.
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Review of
counsel’s representation is highly deferential, and the reviewing court indulges a
strong presumption that counsel’s conduct fell within a wide range of reasonable
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representation. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);
Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).
The second prong of Strickland requires a showing that counsel’s errors
were so serious that they deprived the defendant of a fair trial. 466 U.S. at 687,
104 S. Ct. at 2064. In other words, an appellant must show there is 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.
Failure to make the required showing of either deficient performance or
sufficient prejudice defeats the claim of ineffectiveness. Id. at 700, 104 S. Ct. at
2071.
Here, as the trial court found and concluded, the majority of Lavine’s
claims in his applications that he received ineffective assistance at trial are bare
assertions without any evidence or explanation as to how or why these
assertions rendered his trial counsel ineffective, including his unsupported claims
that his trial counsel violated the disciplinary rules, failed to attack the charging
instrument, or failed to file any pretrial motions. Ex parte Richardson, 70 S.W.3d
at 870; see Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983) (“Absent
evidence in the record, a court cannot consider a habeas petitioner’s bald
assertions on a critical issue in his pro se petition . . . to be of probative
evidentiary value.”). We therefore conclude that the trial court did not abuse its
discretion by denying Lavine’s application based on these claims.
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The only claims that Lavine makes that have any reference to the record
evidence would be his claims that certain testimony should have been objected
to and that “photographs” should not have been admitted without objection. But
as the trial court concluded, even assuming these alleged errors constituted
ineffective assistance of counsel, Lavine has failed to demonstrate how, but for
these alleged deficiencies in counsel’s performance, the outcome of his jury trial
would have been different. Davis, 278 S.W.3d at 352.
Indeed, as the trial court concluded, the jury heard other, much more
compelling evidence than the complained-of evidence. Specifically, the
complainant testified that during the last months that she was in a relationship
with Lavine, he would become physically violent and that she feared for her life
and wanted to end the relationship. The complainant also testified that before
the instant offense, Lavine had previously slapped her, pushed her, and punched
her. The record evidence also indicates that once while complainant was away
from the apartment, Lavine left threatening voice messages.
The complainant also testified that Lavine was angry with her when she
returned to the apartment on the night of the instant offense and that Lavine
followed her into the restroom and accused her of cheating on him. Lavine then
slapped her in the face and told her to tell him what she had been doing while
away. When the complainant retreated to her bedroom, Lavine then pushed her
onto the bed, got on top of her, and put his hands around her throat while he
asked her questions about where and with whom she had been. According to
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complainant’s testimony, Lavine then told her that she did not know who she was
“messing with” and that he would kill her and no one would ever know.
Later, Lavine forced his way inside the apartment after being locked out
and the complaint ran outside to seek assistance, but Lavine grabbed her, with
one hand under her arm and another grabbing her hair, and pulled her back
upstairs and into the apartment. Lavine then forced the victim into the bedroom
and told her that he was not going to go to sleep and that if she did anything
“slick,” he would have someone kill her.
Viewing this evidence in the light most favorable to the trial court’s ruling
that Lavine failed to demonstrate by a preponderance of the evidence how, but
for counsel’s alleged unprofessional errors in not objecting to the complained-of
evidence, there is a reasonable probability that the result of his trial would have
been different, we conclude that the trial court did not abuse its discretion by
denying Lavine’s application. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068;
Ex parte Garcia, 353 S.W.3d at 787.
V. CONCLUSION
We affirm the trial court’s denial of Lavine’s post-conviction application for
writ of habeas corpus.
/s/ Bill Meier
BILL MEIER
JUSTICE
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PANEL: WALKER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 16, 2016
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