Ex Parte Dustin Wayne Glenn ( 2015 )

Opinion issued February 26, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00042-CR
NO. 01-14-00195-CR
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EX PARTE DUSTIN WAYNE GLENN
On Appeal from the County Court at Law No. 3
Galveston County, Texas
Trial Court Case Nos. CV-70368, CV-70369
MEMORANDUM OPINION
Appellant, Dustin Wayne Glenn, challenges the trial court’s orders denying
his applications for writs of habeas corpus.1 In his sole issue, appellant contends
1
See TEX. CODE CRIM. PROC. ANN. art. 11.09 (Vernon 2005) (providing person
confined or restrained from conviction of misdemeanor offense may apply for writ
that the trial court erred in denying him relief from two judgments of conviction
for the misdemeanor offenses of criminal trespass 2 and resisting arrest 3 on his
asserted ground that he had received ineffective assistance of counsel in both cases.
We affirm.
Background
On October 22, 2012, after appellant pleaded guilty to two separate felony
offenses of aggravated assault with a deadly weapon,4 the 405th District Court of
Galveston County deferred adjudication of his guilt and placed him on community
supervision for five years.
On January 24, 2013, appellant, while on community supervision, pleaded
nolo contendere in the trial court to the misdemeanor offenses of criminal trespass
and resisting arrest. In his plea papers, appellant acknowledged that his counsel,
appointed to defend him in the trial court, had “fully discussed” his cases with him.
Also, appellant understood that because he was on community supervision, “[his]
plea[s] of guilty or nolo contendere [could] result in the revocation of [his]
of habeas corpus); see also State v. Collazo, 264 S.W.3d 121, 126 (Tex. App.—
Houston [1st Dist.] 2007, pet. ref’d) (same).
2
See TEX. PENAL CODE ANN. § 30.05 (Vernon Supp. 2014); appellate cause
number 01-14-00195-CR; trial court cause number CV-70369.
3
See TEX. PENAL CODE ANN. § 38.03(a) (Vernon 2011); appellate cause number
01-14-00042-CR; trial court cause number CV-70368.
4
See TEX. PENAL CODE ANN. § 22.02 (Vernon 2011); appellate cause numbers 01-
13-00640-CR & 01-13-00641-CR; trial court cause numbers 12CR2237 and
12CR2238.
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community supervision or parole resulting in [his] further confinement.”
Appellant’s counsel also signed the plea papers, affirming that he had “fully
explained all of the matters contained in [the papers] to appellant.”
Prior to accepting appellant’s pleas, the trial court admonished appellant of
the consequences of his pleas. It then accepted appellant’s pleas, found him guilty
of each offense, and sentenced him to confinement for fifteen days in each case,
with the sentences to run concurrently.
Appellant subsequently filed his post-conviction applications for writs of
habeas corpus, arguing that he entered his pleas involuntarily because he “did not
receive accurate advice [regarding] the effect of [his pleas]” on his community
supervision. According to appellant, his counsel in the trial court, “knowing that
[appellant] was on felony probation, advised [him] that [he] could get out of jail
[following his pleas] and confer personally with [his] felony probation officer in
order to minimize the effect of his conviction[s] [for criminal trespass and resisting
arrest] on [his] probation.” However, appellant was not released from confinement
after pleading guilty, and the State moved to adjudicate his guilt on the two felony
offenses of aggravated assault with a deadly weapon. As grounds for adjudication,
the State alleged, among other grounds, that appellant’s commission of the
offenses of criminal trespass and resisting arrest violated the conditions of his
community supervision. The 405th District Court adjudicated appellant’s guilt and
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sentenced him to confinement for twelve years for each offense of aggravated
assault with a deadly weapon, with the sentences to run concurrently.
In his unsworn declaration, attached to his applications for writs of habeas
corpus, appellant explained:
I first met [my counsel in the trial court] when I was brought in for the
misdemeanor jail docket for resisting arrest and criminal trespassing
charges. I had never met him before. . . . [Counsel] spent twenty to
thirty minutes with me. He asked me for an explanation for the[]
charges and I told him that I was not guilty. I was not trespassing at
my sister’s place of residence because I had been living there for at
least three weeks when the police came. I told. . . . [counsel] that all
my property was at my sister’s and I received my mail: bills and bank
statements, there. . . . I explained to . . . [counsel] that I was
intoxicated the night that the police came for me, I had fallen asleep
and I woke up being roughly handcuffed by the police. I explained to
. . . [counsel] that I did not fight or resist the police, but merely asked
for an explanation of what was going on and why I was being
arrested.
. . . [Counsel] explained to me that, if I plead guilty to the
misdemeanor offenses, I could get out of jail, . . . go see my probation
officer and explain to [him] what had happened to me. . . . [counsel]
knew I was on felony probation because I told him about it and he told
me that he had my paperwork with him. I relied on . . . [counsel]
telling me that I would get out of jail if I plead guilty, but, if I didn’t
plead guilty, then I would be in jail for a long time. . . .
But I did not get out of jail that day . . . . Later that day, . . . [t]he
sergeant told me that “they” had violated my probation that same day
and put a $120,000 bond on me. . . .
A week or two later, I received a copy of the motion to get me off
probation. . . . I learned that two of the things that “they” were
violating me for were the misdemeanor charges that I told . . .
[counsel] that I did not do.
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The trial court denied appellant’s applications.
Standard of Review
An applicant for a writ of habeas corpus bears the burden of proving his
allegations by a preponderance of the evidence. Ex parte Richardson, 70 S.W.3d
865, 870 (Tex. Crim. App. 2002). We view the evidence in the light most
favorable to the trial court’s ruling, and we afford almost total deference to the
court’s determination of historical facts that are supported by the record, especially
when the fact findings are based on an evaluation of credibility and demeanor. Ex
parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006); Ex parte Peterson,
117 S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled in part on other grounds
by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). We afford the same
amount of deference to the trial court’s rulings on “application of law to fact
questions” that involve an evaluation of credibility and demeanor. Ex parte
Peterson, 117 S.W.3d at 819. In such instances, we use an abuse of discretion
standard. See Ex parte Garcia, 353 S.W.3d 785, 787 (Tex. Crim. App. 2011).
However, if resolution of those ultimate questions turns on an application of legal
standards, we review those determinations de novo. Ex parte Peterson, 117
S.W.3d at 819. We will affirm the trial court’s decision if it is correct on any
theory of law applicable to the case. Ex parte Primrose, 950 S.W.2d 775, 778
(Tex. App.—Fort Worth 1997, pet. ref’d).
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Ineffective Assistance of Counsel
In his sole issue, appellant argues that he entered his pleas of nolo
contendere in both misdemeanor cases involuntarily because he received
ineffective assistance of counsel.
To be valid, a plea must be entered voluntarily, knowingly, and intelligently.
TEX. CODE CRIM. PROC. ANN. art. 26.13(b) (Vernon Supp. 2014); Fuller v. State,
253 S.W.3d 220, 229 (Tex. Crim. App. 2008); Ex parte Karlson, 282 S.W.3d 118,
128–29 (Tex. App.—Fort Worth 2009, pet. ref’d). A plea is not voluntarily and
knowingly entered if it is made as a result of ineffective assistance of counsel.
Ulloa v. State, 370 S.W.3d 766, 771 (Tex. App.—Houston [14th Dist.] 2011, pet.
ref’d).
We apply the two-pronged test of Strickland v. Washington to challenges to
pleas premised on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52,
58, 106 S. Ct. 366, 370 (1985) (citing Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052 (1984)). Under Strickland, in order to establish ineffective assistance
of counsel, a defendant must show (1) his trial counsel’s performance fell below an
objective standard of reasonableness and (2) there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different. Strickland, 466 U.S. at 687–88, 694, 104 S. Ct. at 2064, 2068; see
also Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Any
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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. In reviewing counsel’s performance, we look to the totality of the
representation to determine the effectiveness of counsel, indulging a strong
presumption that counsel’s performance falls within the wide range of reasonable
professional assistance or trial strategy. See Robertson v. State, 187 S.W.3d 475,
482–83 (Tex. Crim. App. 2006). The “failure to satisfy one prong of the
Strickland test negates a court’s need to consider the other prong.” Williams v.
State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).
In the context of pleas, the focus of the prejudice inquiry is “on whether
counsel’s constitutionally ineffective performance affected the outcome of the plea
process.” Hill, 474 U.S. at 59, 106 S. Ct. at 370. Therefore, in order to satisfy
Strickland’s prejudice prong, when a defendant has pleaded guilty or nolo
contendere, he “must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial.” Hill, 474 U.S. at 59, 106 S. Ct. at 370 (emphasis added); Ex parte
Moody, 991 S.W.2d 856, 858 (Tex. Crim. App. 1999).
Here, although appellant asserts in his unsworn declaration that he “relied
on” counsel’s advice, appellant has presented no evidence that, but for his
counsel’s deficient performance, he would not have pleaded nolo contendere and
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would have insisted on proceeding to trial in both misdemeanor cases. Notably,
appellant did not include in his unsworn declaration such an assertion. Moreover,
appellant did not allege in his applications for writs of habeas corpus that he would
have proceeded to trial.
Without evidence in the record that appellant would have insisted on
proceeding to trial, he cannot establish the second prong of the Strickland test. See
Johnson v. State, 169 S.W.3d 223, 232 (Tex. Crim. App. 2005) (“‘If the defendant
cannot demonstrate that but for his counsel’s deficient performance, he would have
[availed himself of trial], counsel’s deficient performance has not deprived him of
anything, and he is not entitled to relief.’”) (quoting Roe v. Flores-Ortega, 528
U.S. 470, 484, 120 S. Ct. 1029, 1038 (2000)); see, e.g., Kliebert v. State, Nos. 01-
12-00757-CR, 01-12-00758-CR, 01-12-00759-CR, 01-12-00760-CR, 2013 WL
3811491, at *3 (Tex. App.—Houston [1st Dist.] July 18, 2013, pet. ref’d) (mem.
op., not designated for publication) (holding defendant failed to establish prejudice
where he “presented no evidence, either by testimony or affidavit, that, but for
counsel’s alleged deficiency, he would not have pleaded guilty”). Accordingly, we
hold that the trial court did not abuse its discretion in denying appellant habeas
relief.
We overrule appellant’s sole issue.
Conclusion
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We affirm the trial court’s orders denying appellant habeas corpus relief.
Terry Jennings
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Keyes.
Do not publish. TEX. R. APP. P. 47.2(b).
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