Opinion
No. 04-04-00127-CR
Delivered and Filed: February 16, 2005. DO NOT PUBLISH.
Appeal from the 144th Judicial District Court, Bexar County, Texas, Trial Court No. 2001-CR-3726-PI, Honorable Mark Luitjen, Judge Presiding. Affirmed.
Sitting: Catherine STONE, Justice, Paul W. GREEN, Justice, (not participating) Karen ANGELINI, Justice.
MEMORANDUM OPINION
Sean Lebo was convicted of recklessly causing injury to an elderly person, a third degree felony. He appealed, and we affirmed the judgment of the trial court in Lebo v. State, 100 S.W.3d 417, 418-19 (Tex.App.-San Antonio 2002, pet. ref'd) (Marion, J.). Lebo then filed a post-conviction petition for writ of habeas corpus in the trial court. The trial court granted the writ but denied relief. Lebo then filed a notice of appeal in this court. On May 26, 2004, noting that we do not have jurisdiction over post-conviction writs of habeas corpus in felony cases under article 11.07 of the Texas Code of Criminal Procedure, we dismissed this appeal for lack of jurisdiction. Lebo then filed a motion for rehearing, arguing that we do have jurisdiction over this appeal because the trial court suspended his ten year sentence and placed him on community supervision for ten years. We agree. Article 11.072 of the Texas Code of Criminal Procedure gives us jurisdiction over appeals of denials of habeas corpus relief in cases in which community supervision has been ordered. Tex. Code Crim. Proc. Ann. art. 11.072 (Vernon Supp. 2004-05); see also Beauchamp v. State, No. 254-03, 2004 WL 3093227, at *4 (Tex.Crim.App. Sep. 22, 2004) (holding that court of criminal appeals does not have jurisdiction under article 11.07 because article 11.07 applies "after final conviction in any felony case" and a habeas corpus applicant whose community supervision has not been revoked has not suffered a final felony conviction). As such, we do have jurisdiction over Lebo's appeal. We grant Lebo's motion for rehearing, withdraw our opinion of May 26, 2004, vacate our order of dismissal of May 26, 2004, and reinstate this appeal on the docket of our court. We now address the merits of Lebo's appeal.
Pursuant to Texas Rule of Appellate Procedure 49.2, we ordered the State to file a response to Lebo's motion for rehearing. In its response, the State agrees that we have jurisdiction over Lebo's appeal.
Background
In our opinion of December 31, 2002 upholding Lebo's conviction and sentence on direct appeal, we explained the circumstances surrounding Lebo's conviction:[Sean Lebo] owns property adjacent to property owned by Irma McNeil. One morning, McNeil noticed her bull had wandered onto [Lebo]'s property, and she called [Lebo] for permission to retrieve the bull from his land. Because the bull had been on his land for several weeks, [Lebo] told McNeil she would have to prove the bull belonged to her. McNeil called the complainant, Walter Luensmann, from whom she had purchased the bull, and asked him if he would identify the bull as hers. Luensmann is seventy-years-old. McNeil, Luensmann, and McNeil's daughter, Glenda McNeil, entered onto [Lebo]'s property without first receiving [Lebo]'s permission. After Luensmann identified the bull as belonging to McNeil, Luensmann opened two gates on [Lebo]'s property for the purpose of taking the bull back to McNeil's property. When the bull came out of the pasture, Luensmann began to close one of the gates. At this point, [Lebo] came out of his house.The McNeils and Luensmann testified that [Lebo] took a "flying tackle" at Luensmann, knocked him to the ground, and landed on top of him. [Lebo] testified that Luensmann stood at the center of the gate opening, and he pushed Luensmann with his shoulder in an effort to keep the gate open so that his cattle could be moved behind the fence. [Lebo] said Luensmann fell to the ground after being pushed. As a result of his fall, Luensmann suffered scratches and bruises on his face, a tooth was knocked out, and his shoulder was injured. Later, surgery was required to repair a torn muscle in his shoulder. Lebo v. State, 100 S.W.3d 417, 418-19 (Tex.App.-San Antonio 2002, pet. ref'd) (Marion, J.). The trial court, in denying Lebo's relief on his writ of habeas corpus, made the following findings of fact based on the evidence before it:
1. [Lebo] was indicted for injury to an elderly individual, under Texas Penal Code § 22.04, having caused "serious bodily injury."
2. The Court has reviewed [Lebo]'s application as well as its attachments.
3. [Lebo] has provided doctor's records, which [Lebo] contends support his argument that the State relied on falsified evidence and misconstrued [Luensmann]'s injuries. [Lebo]'s contention is that, but for the testimony that [Luensmann] suffered a torn rotator cuff, the jury could not have found that [Lebo] caused [Luensmann] serious bodily injury. After reviewing the records, however, the Court can only conclude the following:
a. [Luensmann], a 70 year-old man complained of left shoulder pain immediately after being knocked to the ground by [Lebo]. (Appendix F).
b. [Luensmann] contended that he did not have previous existing problems with his shoulder. (Appendix F).
c. [Luensmann] continued having difficulties with his left shoulder. His treating physician attempted to alleviate his pain with injections to the site. Two injections failed to completely alleviate [Luensmann]'s pain. (Appendix F, Doctor's note dated August 15, 2001).
d. [Luensmann]'s physician believed his symptoms, as presented, were consistent with a torn rotator cuff. The physician believed this so strongly, in fact, that he scheduled a surgery to repair the torn rotator cuff. (Appendix F).
e. [Luensmann] received an MRI imaging scan of the affected shoulder. The MRI report notes that "changes consistent with full-thickness tear . . ." (Appendix E).
f. The surgical report notes that the rotator cuff itself appeared to be intact, with an area in the "supraspinatus tendon which represented the area of the tear. It had scarred over, therefore, [the surgical team] left it." The "preop diagnosis" was the same. (Appendix B).
g. [Lebo]'s contention is that, since [Luensmann]'s rotator cuff was not actually torn, the State falsified the evidence, and had the jury not been subjected to the false evidence, it could not have returned a verdict of guilty. The Court cannot come to the same conclusion. Assuming, arguendo, that [Lebo] is correct in that the rotator cuff was not actually torn (it appears that the medical records suggest both that it was and that it was not), the evidence, as presented by [Lebo], still establishes that [Luensmann] was injured to the extent that [Luensmann] required surgery to repair his injuries. [Luensmann]'s treating physician believed his symptoms were consistent with a torn rotator cuff to the extent that he scheduled [Luensmann], who had recently been through a triple-bypass heart surgery, for surgery to correct the torn rotator cuff. It may very well be that [Luensmann] was suffering from another degenerative condition, such as arthritis, which was causing his shoulder pain, but the evidence establishes that he did not complain of shoulder pain until after [Lebo] knocked him to the ground.The trial court then stated the following in a footnote:
The Court notes that even if [Luensmann]'s pain stemmed from a pre-existing condition that was exacerbated by [Lebo] knocking down [Luensmann], such is the risk one undertakes when one knocks a 70-year-old man to the ground. This may very well be why our state has chosen to criminalize, with particular severity, acts of violence against the elderly.With respect to Lebo's contention that the State engaged in prosecutorial misconduct, the trial court made the following conclusion of law:
[Lebo]'s contention that the State engaged in prosecutorial misconduct by using false evidence it knew would deceive the jury is without merit. Even assuming, arguendo, that the State acted improperly and that the evidence regarding [Luensmann]'s rotator cuff should not have been before the jury, as fact finder, the jury would have still had ample evidence before it to support a guilty verdict. Applicant does not contest that he knocked [Luensmann] on the ground, or that [Luensmann] was an elderly individual. [Luensmann]'s argument centers around causation: whether [Lebo]'s shove actually caused [Luensmann]'s injuries. [Lebo] cannot get over the hurdle of Texas Penal Code § 6.04(a): A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient. Regardless of whether [Luensmann] actually sustained a torn rotator cuff or not, the evidence is legally sufficient to show that [Lebo]'s actions caused [Luensmann] to suffer should[er] pain that was not present before [Lebo] knocked him to the ground, to the point that [Luensmann] underwent surgery to correct the problem. At the least, [Lebo]'s actions were a concurrent cause of [Luensmann]'s suffering serious bodily injury, and are thereby punishable under our State's laws.There is no reporter's record of the hearing on Lebo's petition for writ of habeas corpus.
Standard of Review
In reviewing a trial court's decision to grant or deny relief on a writ of habeas corpus, almost total deference is afforded the trial court's determination of the historical facts supported by the record. Ex parte Martin, 6 S.W.3d 524, 526 (Tex.Crim.App. 1999). The same amount of deference is afforded to the trial court on rulings that apply the law to the facts if the resolution of those ultimate questions is dependent upon an evaluation of credibility and demeanor. See id. However, an abuse of discretion review is not appropriate in the context of the application of law to facts when the trial court's decision does not turn on the credibility or demeanor of witnesses. Id. When the trial court "is not in an appreciably better position than the reviewing court to make that determination, a de novo review by the appellate court is appropriate." Id. (citation omitted). The burden of persuasion in a post-conviction writ of habeas corpus is on the applicant to prove his factual allegations by a preponderance of the evidence. Ex parte Thomas, 906 S.W.2d 22, 24 (Tex.Crim.App. 1995). We defer to the trial court's factual findings underlying his recommendation when they are supported by the record. Ex parte Briseno, 135 S.W.3d 1, 12 (Tex.Crim.App. 2004). Thus, we afford almost total deference to a trial court's determination of the historical facts supported by the record, especially when those fact findings are based on an evaluation of credibility and demeanor. Id. at 12-13. However, if the trial court's ruling is not supported by the record, we may reject the findings. Id. at 13. On appeal, Lebo argues that the trial court abused its discretion in denying the writ of habeas corpus. Lebo's arguments on appeal encompass two issues: prosecutorial misconduct and ineffective assistance of counsel.Prosecutorial Misconduct
With regard to prosecutorial misconduct, Lebo argues that the State withheld exculpatory evidence and that the State knowingly used false evidence. According to Lebo, although the trial court had granted Lebo's Brady motion, the State failed to produce medical records from the Northeast Orthopedics Clinic. Lebo argues that while the State argued to the jury that Luensmann suffered an acute tear in his rotator cuff, the medical records from Northeast Orthopedics Clinic show the following: (1) "that bone-spurs on his left shoulder joint were more than likely causing the scarring that the prosecutor would refer to at trial as an acute muscle tear," (2) "[w]hen Luensmann had surgery on his shoulder six months after the incident, no muscle tear was found or repaired," and (3) the "only thing done during surgery was [to remove] the bone-spurs that were causing the alleged muscle tearing, or scarring, or degeneration of Luensmann's muscle." Ordinarily, the writ of habeas corpus may not be used to litigate matters that could have been raised at trial and on direct appeal. Ex parte Boyd, 58 S.W.3d 134, 136 (Tex.Crim.App. 2001); Ex parte Bagley, 509 S.W.2d 332, 334 (Tex.Crim.App. 1974); see also Ex parte Nelson, 137 S.W.3d 666, 667 (Tex.Crim.App. 2004) ("We have said countless times that habeas corpus cannot be used as a substitute for appeal, and that it may not be used to bring claims that could have been brought on appeal."). However, an applicant's failure to raise a claim at trial may be excused if the basis of the claim was not reasonably available at the time of trial. Ex parte Boyd, 58 S.W.3d at 136. Here, when the State tendered the medical records of which Lebo complains, defense counsel was given time to review the records. Defense counsel then stated that it had no objection to the medical records being admitted in evidence. Moreover, on direct appeal, Lebo did not raise this issue of alleged prosecutorial misconduct. In reviewing the trial record, we hold that Lebo had adequate opportunity to raise this complaint at trial and again on appeal and wholly failed to do so. As such Lebo cannot raise it here for the first time. See Ex parte Boyd, 58 S.W.3d at 136; Ex parte Bagley, 509 S.W.2d at 334. Lebo also complains that the State knowingly elicited false testimony from Dr. Neal. According to Lebo, even though the prosecutor knew that Luensmann did not suffer from an acute muscle tear, she, nonetheless, elicited testimony from Dr. Neal that Luensmann did have an acute muscle tear. Lebo failed to raise this issue at trial or on direct appeal. As before, in reviewing the trial record, we hold that Lebo had adequate opportunity to raise this complaint at trial and again on appeal and wholly failed to do so. As such, Lebo cannot raise it here for the first time. See Ex parte Boyd, 58 S.W.3d at 136; Ex parte Bagley, 509 S.W.2d at 334.Ineffective Assistance
Lebo argues that he received ineffective assistance of counsel at trial. Specifically, he alleges that his lawyer was not prepared at trial, did not conduct a pre-trial investigation into the State's case, and did not review Luensmann's medical records. Additionally, because Lebo believes that the failure of the State to produce Luensmann's medical records before trial violated Brady, he complains of his counsel's failure to object to the admission of these records. According to Lebo, his counsel should have asked for a mistrial or a substantial delay. Lebo also criticizes his counsel for allowing the State to elicit allegedly "false" testimony and for failing to correct this "misleading" testimony elicited by the State. To obtain habeas corpus relief for ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 687 (1984), the applicant must show that his counsel's performance was deficient and that a probability exists, sufficient to undermine our confidence in the result, that the outcome would have been different but for his counsel's deficient performance. Ex parte White, No. 74757, 2004 WL 2179272, at *1 (Tex.Crim.App. Sep. 29, 2004). Under this well-established standard, "[a]ny allegation of ineffectiveness must be firmly founded in the record." Ex parte Nailor, 149 S.W.3d 125, 130 (Tex.Crim.App. 2004) (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999)) (alteration in original). First, a defendant must show, by a preponderance of the evidence, that counsel's performance was constitutionally deficient. Id. (citing Strickland, 466 U.S. at 687). Second, the defendant must show that this deficient performance prejudiced his defense. Id. (citing Strickland, 466 U.S. at 687). Under this two-pronged analytical framework, a defendant must overcome the "strong presumption that counsel's performance fell within the wide range of reasonable professional assistance." Id. (quoting Thompson, 9 S.W.3d at 813). Moreover, "[a]ppellate review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance." Id. (quoting Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002)) (alteration in original). As noted, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. Under normal circumstances, the record on direct appeal 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. Rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation. Id.; Thompson, 9 S.W.3d at 813. In the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel. Bone, 77 S.W.3d at 833. In such situations, the issues are better presented within the framework of a post-conviction writ of habeas corpus. See Thompson, 9 S.W.3d at 813. Here, however, Lebo did not develop such a record during his habeas corpus proceeding. He did not attach an affidavit from trial counsel to his petition. Nor is there a reporter's record of the habeas proceeding developing such evidence. Thus, Lebo's accusations that his trial counsel was not prepared at trial, did not conduct a pre-trial investigation into the State's case, and did not review Luensmann's medical records are not firmly founded in the record. Moreover, the record does show that Lebo's counsel did have an opportunity at trial to review Luensmann's medical records. The record does not reflect counsel's reasons for failing to object to the medical records, for failing to request a mistrial or continuance, or for failing to object to Dr. Neal's testimony. Therefore, Lebo's complaints directed at his trial counsel involve actions that may or may not be grounded in sound trial strategy. The record does not reflect his attorney's reasons for doing or failing to do the things of which appellant complains. Lebo argues that his counsel was ineffective for the following reasons:There was no legitimate reason for defense counsel to not summons a doctor, or to not object to medical records being presented for the first time at trial, after he had filed a pretrial motion to prevent just that from happening. There was no legitimate reason for defense counsel to not have gained a meaningful understanding of [Luensmann]'s medical records. If the jury had known that [Luensmann]'s surgery and subsequent physical therapy had nothing to do with a muscle tear, it would have clearly affected their decision. If the jury had known that [Luensmann] had bone spurs on his shoulder joint, and that they were more than likely causing the exact tearing or scarring that the prosecution was referring to as an acute muscle tear, it would have clearly affected their decision. And, finally, if the jury had known that the impairment suffered at the time of trial was because of an invasive bone operation, and not an acute muscle tear, it would have clearly affected their decision.Not one of Lebo's allegations is firmly founded in the record; they are based on pure speculation. See Thompson, 9 S.W.3d at 813. We must, therefore, presume that counsel's decision was reasonable trial strategy. See Mallett v. State, 65 S.W.3d 59, 67 (Tex.Crim.App. 2001). Lebo also argues that his counsel was ineffective for failing to object to the jury charge. Lebo raised this issue on direct appeal, and it was rejected by us in Lebo v. State, 100 S.W.3d 417, 422 (Tex.App.-San Antonio 2002, pet. ref'd). Generally, claims raised and rejected on direct appeal are not cognizable on habeas corpus. Ex parte Nailor, 149 S.W.3d 125, 131 (Tex.Crim.App. 2004). However, a claim for ineffective assistance of counsel may be cognizable, even if it was raised and rejected on direct appeal, if the record on direct appeal was inadequate to develop an ineffective assistance claim. Id.; see Ex parte Torres, 943 S.W.2d 469, 475 (Tex.Crim.App. 1997) ("[T]his doctrine should not be applied where direct appeal cannot be expected to provide an adequate record to evaluate the claim in question, and the claim might be substantiated through additional evidence gathering in a habeas corpus proceeding."). Here, however, Lebo did not gather additional evidence through the habeas corpus proceeding. Thus, his claim is not cognizable. Finally, Lebo argues that his appellate counsel was ineffective. Specifically, Lebo emphasizes that although the motion for new trial argued that trial counsel was ineffective with regard to Luensmann's medical records, appellate counsel failed to bring the issue on appeal. And, according to Lebo, "[o]n top of not raising an issue that would have undoubtedly resulted in a reversal under the Texas Rules of Appellate Procedure, appellate counsel allowed the State to argue the false evidence to the appellate court on appeal." Lebo's allegations of ineffectiveness, however, are not firmly founded in the record. The record does not affirmatively demonstrate the alleged ineffectiveness. Because the record is devoid of any evidence that rebuts the presumption of effective assistance, we cannot speculate as to why appellate counsel failed to bring these issues on appeal and must presume that counsel's decision was reasonable appellate strategy. See Mallett, 65 S.W.3d at 67.