Levy, Joseph, PD-0460-15

Background

Joseph Levy was convicted by a jury of one count of indecency with a child and two counts of aggravated sexual assault (victim: his daughter, under 14); sentences: 6, 30, and 35 years, to run consecutively.
Initial charges included indecency and continuous sexual abuse; shortly before trial the State amended the indictment to drop continuous sexual abuse and to allege two specific counts of aggravated sexual assault (with dates within the originally alleged date range).
Allegations arose from multiple incidents between mid-2011 and December 2011 involving massages, digital and oral contact, and sex toys; a SANE exam and forensic testing were performed and items were seized from Levy’s home.
Levy was acquitted previously on related allegations in a separate Dallas County bench trial; that history factored into defense strategy at the Denton County trial.
After conviction, Levy appealed arguing (1) ineffective assistance of trial counsel (several sub-claims including plea negotiation, failure to investigate/present witnesses, and consenting to the indictment amendment) and (2) trial court error in admitting the SANE report/statements and substituting a copy for the original.

Issues

Issue	Levy's Argument	State's Argument	Held
Trial counsel agreed to amendment of indictment shortly before trial	Counsel failed to consult and the amendment prejudiced Levy (created exposure to two life sentences)	Counsel explained amendment was strategic: lowered minimums, preserved parole possibility, and narrowed/clarified specific acts the State had to prove	No deficient performance; amendment was strategic and not more prejudicial
Counsel failed to investigate / present defense witnesses or call Levy to testify	Counsel did little investigation, presented no defense witnesses, advised Levy not to testify	Counsel reviewed prior case files, interviewed witnesses, and reasonably decided such testimony would be harmful or marginal; focused defense on impeaching victim credibility	No deficient performance; strategy reasonable and no showing of likely different outcome
Counsel failed to rebut SANE testimony/statistics	SANE misstated or misstated study statistics; counsel should have rebutted expert testimony	SANE relied on literature; Kellogg study not in record and rebuttal evidence not shown	No deficiency shown; appellant failed to prove SANE testimony false or that rebuttal would have changed result
Admission of SANE report and substitution of copy	Report and parts of SANE testimony were inadmissible hearsay and medical-exception inapplicable; substitution violated best-evidence/due process	Many statements were admitted through SANE’s summary testimony; appellant failed to object at each offering; substituted copy matched original and was harmless	No reversible error; most statements were also testified to directly by child, and error (if any) was harmless; substitution proper

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective-assistance test)
Wiggins v. Smith, 539 U.S. 510 (counsel must investigate; reasonableness judged under circumstances)
Thomas v. State, 444 S.W.3d 4 (on-or-about language allows proof of different date within statute of limitations)
Lopez v. State, 343 S.W.3d 137 (Tex. Crim. App.) (right to effective assistance requires more than lawyer presence)
Ex parte Welborn, 785 S.W.2d 391 (counsel duty to interview potential witnesses)
Ex parte Martinez, 195 S.W.3d 713 (assessing reasonableness of counsel’s investigation)
Ex parte Burns, 601 S.W.2d 370 (strategic choices by counsel are given deference)
Taylor v. State, 268 S.W.3d 571 (harmlessness where same facts come in through non-hearsay testimony)