Ex parte Lahood

• Decision Date: 26 June 2013
• Docket Number: Nos. AP–76,873,AP–76,874.,s. AP–76,873
• Citation: 401 S.W.3d 45
• Parties: Ex Parte Michael George LaHOOD, Applicant.
• Court: Texas Court of Criminal Appeals

401 S.W.3d 45

Ex Parte Michael George LaHOOD, Applicant.

Nos. AP–76,873, AP–76,874.

Court of Criminal Appeals of Texas.

June 26, 2013.

Anthony Martin Smith, Attorney At Law, San Antonio, TX, for Appellant.

Alycia B. Harvey, Assistant District Attorney, Houston, TX, Lisa C. McMinn, State's Attorney, Austin, for the State.

OPINION

HERVEY, J., delivered the opinion of the Court in which PRICE, WOMACK, JOHNSON, KEASLER, COCHRAN, and ALCALA, JJ., joined.

Applicant, Michael LaHood, was convicted of aggravated kidnapping and aggravated sexual assault. On direct appeal, the Fourteenth District Court of Appeals affirmed his convictions in a published opinion. LaHood v. State, 171 S.W.3d 613 (Tex.App.-Houston [14th Dist.] 2005, pets. ref'd). We subsequently refused his petitions for discretionary review. Applicant now files these applications for a writ of habeas corpus alleging, in part, that he received ineffective assistance of counsel because his trial counsel failed to investigate his mental-health history, and if she had, there was a reasonable probability that the outcome of his proceeding would have been different. The trial court entered findings of fact and conclusions of law recommending that we deny relief. We will deny relief.

I. PROCEDURAL HISTORY

Applicant committed aggravated kidnapping and aggravated sexual assault on or about September 3, 2003. He was found guilty of both charges by a jury. His punishment was assessed at thirty years' imprisonment in each case to run concurrently. On direct appeal, the Fourteenth District Court of Appeals affirmed the judgment of the trial court. LaHood, 171 S.W.3d at 625.

On May 7, 2007, Applicant filed the instant applications for a writ of habeas corpus, in which he claimed that his trial counsel was ineffective.¹ The State filed its answer and argued that, to resolve Applicant's claims, more information was needed from Applicant's trial counsel regarding her “pre-trial investigative efforts, strategic decisions, and confidential communications with Applicant.” The habeas court agreed and entered an order designating the issues and directing Applicant's trial counsel, Leah Borg, to file the proposed affidavit. Ms. Borg filed her first affidavit on October 17, 2007.² Applicant then filed an affidavit by J. Ray Hays, Ph.D., J.D., a mental-health expert, to support Applicant's claim that his counsel should have been aware that he was incompetent to stand trial. In addition, Applicant's father, Colonel (Ret.) George A. LaHood, filed an affidavit disputing certain statements made by trial counsel in her initial affidavit. A few weeks later, Applicant filed an affidavit from mental-health expert Victor R. Scarano, M.D., J.D., which addressed trial counsel's affidavit and Applicant's competency. Trial counsel then filed her second amended affidavit (her third affidavit chronologically) to respond to claims raised by Applicant in his amended application. Finally, Applicant filed additional supporting affidavits from another criminal-defense attorney, the custodian of records for the Harris County District Clerk's Office, Applicant's former wife, Elizabeth Patterson, and the custodian of records for the Harris County Sheriff's Office.

On April 19, 2009, the habeas court recommended denying Applicant's claims for relief. However, we remanded the applications for additional fact-finding and to supplement the record. See Ex parte Lahood, Nos. WR–72,580 & WR–72,580–02, 2011 WL 2369392, at *1 (Tex.Crim.App. June 8, 2011) (per curiam) (not designated for publication). Specifically, we remanded for further fact-finding regarding whether Applicant was able to make an informed, knowing, and intelligent decision to testify and to supplement the record “with the notes trial counsel references in her affidavits that she states Applicant made during trial.” ³Id. If those notes could not be provided, the trial court was directed to make factual findings regarding the reasons why. Id. On remand, trial counsel filed a fourth affidavit responding to this Court's remand order, the State filed a brief, State's Supplemental Answer After Remand,⁴ and Applicant filed a brief objecting to the State's supplemental answer and a second affidavit, in which Dr. Scarano reviewed documentation made available to him after submission of his original affidavit. On November 17, 2011, after considering the additional information, the habeas court again recommended denying relief.

Based on the additional findings of fact and conclusions of law made by the trial court, we filed and set the applications and ordered the parties to brief the following three issues:

1. Whether trial counsel, under Strickland v. Washington, 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984), was deficient for not bringing to the trial court's attention, either before or during trial, evidence of Applicant's alleged incompetency to stand trial.

2. Assuming trial counsel was deficient for failing to alert the trial court to the alleged incompetency, whether Applicant was harmed by counsel's actions under Strickland v. Washington, 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984), and how the determination of harm should be made considering this Court's holdings in Sisco v. State, 599 S.W.2d 607 (Tex.Crim.App.1980), Barber v. State, 737 S.W.2d 824 (Tex.Crim.App.1987), Williams v. State, 663 S.W.2d 832 (Tex.Crim.App.1984), and their progeny.

3. Assuming deficient performance and resulting harm are shown under Strickland v. Washington, 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984), whether the proper remedy is to order a retrospective competency inquiry or to grant a new trial. See, e.g., Barber v. State, 737 S.W.2d 824 (Tex.Crim.App.1987); Caballero v. State, 587 S.W.2d 741 (Tex.Crim.App.1979).

Ex parte Lahood, Nos. AP–76,873 & AP–76,874, 2012 WL 3996712 (Tex.Crim.App. Sept. 12, 2012) (per curiam) (not designated for publication).

II. INEFFECTIVE ASSISTANCE OF COUNSEL

A defendant has a Sixth Amendment right to effective assistance of counsel. U.S. Const. amend. VI; see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ineffective-assistance-of-counsel claims are cognizable on habeas review, and to determine whether to grant habeas relief for ineffective assistance of counsel, Texas courts apply the standard set forth in Strickland. See Ex parte Martinez, 330 S.W.3d 891, 900 (Tex.Crim.App.2011); Hernandez v. State, 726 S.W.2d 53, 55–56 (Tex.Crim.App.1986). The Strickland standard requires that an applicant establish two components by a preponderance of the evidence: (1) deficient performance of trial counsel and (2) harm resulting from that deficiency sufficient to undermine confidence in the outcome of the trial. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The proper standard of review for claims of ineffective assistance of counsel is whether, considering the totality of the representation, counsel's performance was ineffective. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999) (citing Ex parte Felton, 815 S.W.2d 733, 735 (Tex.Crim.App.1991)).

An attorney's performance is deficient when it falls “below an objective standard of reasonableness” under prevailing professional norms and according to the necessity of the case. Ex parte Moore, 395 S.W.3d 152, 156–57 (Tex.Crim.App.2013). We refer to standards published by the American Bar Association and other similar sources as guides to determine prevailing professional norms. Strickland, 466 U.S. at 688–89, 104 S.Ct. 2052 (citing ABA Standards for Criminal Justice (2d ed.1980)). However, publications of that sort are only guides because no set of detailed rules can completely dictate how best to represent a criminal defendant. See id. at 688–89, 104 S.Ct. 2052. We begin the analysis of counsel's performance with a strong presumption that her actions fell within the wide range of reasonable professional assistance. Id. at 689, 104 S.Ct. 2052;see Frangias v. State, 392 S.W.3d 642, 653 (Tex.Crim.App.2013).

One necessary facet of professional assistance is the investigation of the facts and law applicable to a case. Counsel has a duty in every case to make a reasonable investigation or a reasonable decision that an investigation is unnecessary. Strickland, 466 U.S. at 691, 104 S.Ct. 2052;see Ex parte Imoudu, 284 S.W.3d 866, 870 (Tex.Crim.App.2009). “When assessing the reasonableness of an attorney's investigation, a reviewing court must consider the quantum of evidence already known to counsel and whether the known evidence would lead a reasonable attorney to investigate further.” Ex parte Martinez, 195 S.W.3d 713, 721 (Tex.Crim.App.2006).

An attorney's deficient performance prejudices an accused when there is a reasonable probability that the outcome of the trial would have been different but for counsel's deficiency. Cox v. State, 389 S.W.3d 817, 819 (Tex.Crim.App.2012). We have defined a reasonable probability as “a probability sufficient to undermine confidence in the outcome.” Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

A. Trial counsel was deficient when she made an unreasonable decision not to investigate Applicant's mental-health history.

Applicant argues that his trial counsel observed evidence of his lack of mental health before trial, at his trial, and during the sentencing phase. He contends that his trial counsel's failure to follow up on the various indicia of his alleged incompetency fell below prevailing professional standards and, as a result, her performance was constitutionally deficient. We agree.

Relevant American Bar Association standards state that “[d]efense counsel should consider all procedural steps which in good faith may be taken, including, obtaining psychiatric examination of the accused when a need appears....” ABA Standards for Criminal Justice: Prosecution and Defense Function 4–3.6 (3d ed.1993). This standard, though not binding, appears to comport with the applicable...