Glenn, Ex Parte Dustin Wayne ( 2015 )

PD-0350-15, PD-0351-15, PD-0352-15 & PD-0353-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 5/4/2015 2:33:03 PM
Accepted 5/4/2015 4:44:09 PM
PETITION FOR DISCRETIONARY REVIEW ABEL ACOSTA
CLERK
OF
NOS. 01-13-00640-CR;
01-13-00641-CR;
01-14-00042-CR;
01-14-00195-CR
IN THE COURT OF CRIMINAL APPEALS
DUSTIN WAYNE GLENN
Appellant
v.
THE STATE OF TEXAS
Appellee
On Appeal from Cause Numbers 12CR2237 & 12CR2238
From the 405th District Court of Galveston County, Texas
And Cause Numbers CV-70368 & CV-70369
From County Court at Law No. 3 of Galveston County, Texas
PETITION FOR DISCRETIONARY REVIEW
MAY 4, 2015
DAVID SUHLER
P.O. Box 540744
Houston, Texas 77254-0744
May 4, 2015 (713) 522-1220
drsuhler@davidsuhler.xohost.com
Bar Card No. 19465900
Attorney for Appellant
IDENTITY OF PARTIES AND COUNSEL
APPELLANT Mr. Dustin Wayne Glenn
PROSECUTOR AT MOTION Taniya Henderson
TO ADJUDICATE AND 600 59th Street
MOTION FOR NEW TRIAL Galveston, TX 77551
HEARING
DEFENSE COUNSEL FOR Fred Garrett
MISDEMEANOR CHARGES 1908 Rosharon Rd. #605
Alvin, Texas 77511
DEFENSE COUNSEL AT MOTION Tommy James Stickler
TO ADJUDICATE HEARING 235 W. Sealy St.
Alvin, Texas 77511
DEFENSE COUNSEL AT MOTION David Suhler
FOR NEW TRIAL HEARING AND P.O. Box 540744
ON APPEAL Houston, Texas 77254
PRESIDING JUDGE Honorable Michelle Slaughter
405th Judicial District
Galveston County, Texas
PRESIDING JUDGE Honorable Kerri Foley
County Court at Law No. 3
Galveston County, Texas
2
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .................................................................................. 2
TABLE OF CONTENTS ............................................................................................................. 3
INDEX OF AUTHORITIES ........................................................................................................ 4
STATEMENT REGARDING ORAL ARGUMENT ...................................................................... 6
STATEMENT OF THE CASE ..................................................................................................... 6
STATEMENT OF PROCEDURAL HISTORY .............................................................................. 6
GROUNDS FOR REVIEW.......................................................................................................... 7
STATEMENT OF FACTS............................................................................................................ 8
SUMMARY OF THE ARGUMENT ............................................................................................ 10
ARGUMENT ............................................................................................................................ 12
GROUND ONE ................................................................................................. 12
IF THE REASON FOR PLEADING GUILTY WAS COUNSEL’S WRONG ADVICE, IS
CONFIDENCE IN THE OUTCOME UNDERMINED? ........................................... 12
GROUND TWO ................................................................................................ 14
IS ERROR PRESERVED FOR THE LACK OF A PUNISHMENT HEARING WHEN
MITIGATION EVIDENCE IS PRESENTED AT THE MOTION FOR NEW TRIAL
HEARING? ....................................................................................................... 14
GROUND THREE ............................................................................................ 17
HAS THE FIRST COURT OF APPEALS DENIED THE RIGHT FOR IMPARTIAL
APPELLATE REVIEW BY CLAIMING PREJUDICE CANNOT BE SHOWN WHEN THE
SAME JUDGE THAT ISSUED A SENTENCE RULES ON THE MOTION FOR NEW
TRIAL? ............................................................................................................ 17
PRAYER FOR RELIEF ............................................................................................................. 20
APPENDICES .......................................................................................................................... 21
3
INDEX OF AUTHORITIES
Cases
Andrews v. State, 159 S.W.3d 98 (Tex.Crim.App. 2005) .................................................... 12
Arriaga v. State, 335 S.W.3d 331 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) . 18
Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002) .................................................. 18
Ex Parte Glenn, No. 01-14-00042, 01-14-00195 (Tex.App.—Houston [1st Dist.] 2015)
....................................................................................................................................... 10, 12
Glenn v. State, No. 01-13-00640-CR, 01-13-00641-CR (Tex.App.—Houston [1st Dist.]
2015) ............................................................................................................................passim
Goody v. State, 433 S.W.3d 74 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d)... 17, 18
Hardeman v. State, 981 S.W.2d 773 (Tex. App.—Houston [14th Dist.] 1998, pet.
granted) .............................................................................................................................. 16
Issa v. State, 826 S.W.2d 159 (Tex.Crim.App. 1992) ................................................... 10, 14
Lopez v. State, --- S.W.3d ---- (Tex.App.—Houston [1st Dist.] 2015)........... 10, 12, 13, 19
Lopez v. State, 96 S.W.3d 406 (Tex. App.—Austin 2002, pet. ref’d) ............................... 16
Potts v. State, No. 14-10-01172-CR, 2012 WL 1380230 (Tex. App.—Houston [14th
Dist.] Apr. 19, 2012, no pet.)........................................................................................... 18
Salinas v. State, 980 S.W.2d 520 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) .. 15
Shanklin v. State, 190 S.W.3d 154 (Tex. App.—Houston [1st Dist.] 2005, pet. dism’d)
............................................................................................................................................. 18
4
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984) .............................10, 12, 13
Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527 (2003)...................................................... 19
Statutes
Tex. Cod. Crim. Proc. Sec. 44.02.................................................................................. 11, 17
Other Authorities
Mental Illness, Your Client and the Criminal Law: A Handbook for Attorneys Who Represent
Persons With Mental Illness, Texas Appleseed, et. al., 3rd Ed. (October 2005).............. 19
N.P. v. Georgia, No. 2014-CV-241025, Statement of Interest of the United States (Mar.
13, 2015)............................................................................................................................. 13
Southern Center for Human Rights, Department of Justice Files Statement of Interest In
Cordele Right to Counsel Case, March 13, 2015, https://www.schr.org/DOJ............... 13
5
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not requested.
STATEMENT OF THE CASE
Appellant, Mr. Dustin Glenn, gave a nolo contendere plea to two
misdemeanors while on probation. (M.A.J. State’s Exhibits 3 & 4; M.N.T. R.R. at 17;
C.R. 12CR2237 & 12CR2238 at 8). For the misdemeanors, he received a sentence of
fifteen days in county jail and received credit for the twenty-five days he had already
served. (M.A.J. State’s Exhibits 3 & 4). At that time, Mr. Glenn was serving a five year
term of community supervision for two Aggravated Assault offenses. (M.N.T. R.R. at
17; C.R. 12CR2237 & 12CR2238 at 8). The State filed motions to adjudicate in the
405th District Court that same afternoon. At his motion to adjudicate hearing, Mr.
Glenn pleaded “not true” to each violation. (M.A.J. R.R. at 7-13). Without a separate
punishment hearing, the court found that Mr. Glenn had violated each of the
allegations in the motions to adjudicate and then sentenced Mr. Glenn to twelve years
in prison. (M.A.J. C.R. 12CR2237 at 30, 12CR2238 at 34). Mr. Glenn filed a motion
for new trial, which was denied at a hearing. (M.A.J. C.R. 12CR2237 at 44, 48;
12CR2238 at 48).
STATEMENT OF PROCEDURAL HISTORY
Mr. Glenn pled nolo contendere to the two misdemeanor charges on January
24, 2013. (M.A.J. State’s Exhibits 3 & 4). On July 24, 2013, Mr. Glenn filed Writs of
6
Habeas Corpus for the misdemeanor charges, which were denied. (See Findings and
Order Cause No. CV-70368, CV-70369). On January 8, 2014, Mr. Glenn filed a notice
of appeal to the first court of appeals for the denial of these writs. Briefs were filed
and an opinion was handed down on February 26, 2015. (See Appendix A). No
motion for rehearing was filed.
For the felony charges, Mr. Glenn timely filed his notice of appeal on July 2,
2013. (M.A.J. C.R. 12CR2237 at 38, 12CR2238 at 42). Briefs were filed and an opinion
was handed down on February 26, 2015. (See Appendix B). No motion for rehearing
was filed. Mr. Glenn now files this petition for discretionary review.
GROUNDS FOR REVIEW
GROUND ONE
IF THE REASON FOR PLEADING GUILTY WAS COUNSEL’S WRONG
ADVICE, IS CONFIDENCE IN THE OUTCOME UNDERMINED?
GROUND TWO
ISERROR PRESERVED FOR THE LACK OF A PUNISHMENT HEARING
WHEN MITIGATION EVIDENCE IS PRESENTED AT THE MOTION FOR
NEW TRIAL HEARING?
GROUND THREE
HAS THE FIRST COURT OF APPEALS DENIED THE RIGHT FOR
IMPARTIAL APPELLATE REVIEW BY CLAIMING PREJUDICE CANNOT BE
SHOWN WHEN THE SAME JUDGE THAT ISSUED A SENTENCE RULES ON
THE MOTION FOR NEW TRIAL?
7
STATEMENT OF FACTS
Mr. Glenn has a long history of mental health issues. (See R.R. Exhibits to the
Motion for New Trial – defendant medical records). Mr. Glenn’s jail docket counsel
saw him for a brief period before facilitating a guilty plea on the first appearance.
(M.N.T. R.R. at 17). Trial counsel told Mr. Glenn he could go home that night even
though he was on felony probation. (M.N.T. R.R. at 18-20, 63-64, M.A.J. R.R. at 58).
Mr. Glenn stated the reason he pled guilty to the misdemeanor charges against him
was because he was told he could go home if he pled guilty. (M.N.T. R.R. at 63). He
had innocence claims to the misdemeanor charges. (M.N.T. R.R. at 61-63). The
trespassing charge was given to him while at his sister’s house, where he was living at
that time, had always been allowed there, and known his whole life. (M.N.T. R.R. at
62). His belongings were there and he received mail there. (M.N.T. R.R. at 63). The
resisting arrest charge was given because officers had to wake him up as he was
asleep. (M.N.T. R.R. at 62).
When Mr. Glenn was adjudicated guilty of his felony charges, he was not given
a separate punishment hearing after the finding of guilt. (M.A.J. R.R. at 83-87). He
made the trial court aware of the specific punishment mitigation evidence he would
have presented at the motion for new trial hearing. (Exhibits to the M.N.T. R.R. Vol.
1-3). He attempted to admit evidence at his adjudication hearing, but was denied the
opportunity to do so. (M.A.J. R.R. at 83-87) (Mr. Glenn’s mother was disallowed from
testifying to extensive mental health issues). He attempted to admit evidence of
8
medical records at the motion for new trial hearing, but was denied in part to do so.
(M.N.T. R.R. at 12-15).
Mr. Glenn was limited in his presentation of his long history of mental health
issues to only his own testimony at the motion for new trial hearing. His testimony
included evidence of his mother using crack while pregnant with him. (M.N.T. R.R. at
67). He attended alternative learning school. (M.N.T. R.R. at 60). He has been
diagnosed with at least ADHD, bipolar, dyslexia, depression, and oppositional
disruptive disorder. (M.N.T. R.R. at 65-66). He has been hospitalized in a mental
institution. (M.N.T. R.R. at 67). Even in the motion for new trial hearing, Mr. Glenn
blurted out irrelevant statements. 1 (M.N.T. R.R. at 59). The court denied much of his
punishment mitigation evidence on multiple occasions in his proceedings. (M.A.J.
R.R. at 83-87; M.N.T. R.R. at 12-15).
1
Stating “I just found out it was my mom’s birthday last week” with no question or
comments related to that statement.
9
SUMMARY OF THE ARGUMENT
The first court of appeals ruled that prejudice did not exist because appellant
issued no evidence that showed he would have insisted on going to trial but for his
counsel’s wrong advice. Ex Parte Glenn, No. 01-14-00042, 01-14-00195, 7-8
(Tex.App.—Houston [1st Dist.] 2015). This is the wrong standard to apply for the
prejudice prong of the Strickland test, and the first court of appeals is issuing
conflicting opinions regarding this standard. See Lopez v. State, --- S.W.3d ----
(Tex.App.—Houston [1st Dist.] 2015); Ex Parte Glenn, No. 01-14-00042, 01-14-00195
(Tex.App.—Houston [1st Dist.] 2015). Further, Mr. Glenn did show evidence that he
would not have pled guilty. (M.N.T. R.R. at 18-20, 63-64, M.A.J. R.R. at 58).
This court should recognize that Mr. Glenn did present evidence that his plea
was based on wrong advice, showing prejudice. This court should also clarify the
conflicting standards used by the first court of appeals.
Mr. Glenn had specific punishment mitigation evidence that he wanted to
present to the court, and rightfully articulated that specific evidence at his motion for
new trial hearing. (Exhibits to the M.N.T. R.R. Vol. 1-3). Evidence presented at the
hearing, as well as a defendant’s paper motions should be used to determine
preservation of error. Mr. Glenn was never given the opportunity to present his
evidence and was entitled to have a separate punishment hearing. Issa v. State, 826
S.W.2d 159, 161 (Tex.Crim.App. 1992). He was denied his right to that hearing.
(M.A.J. R.R. at 83-87). The cases used by the first court of appeals in their opinion are
10
not controlling in this case. This court should remand this case for adequate appellate
review on whether Mr. Glenn was entitled to a punishment hearing, as error was
preserved.
Defendants are entitled to a fair and impartial appellate review of their claims.
See Tex. Cod. Crim. Proc. Sec. 44.02. The first court of appeals decision in this case
states that anytime the same judge presides over sentencing and over a motion for
new trial, prejudice cannot be shown for the grounds in the motion for new trial.
Glenn v. State, No. 01-13-00640-CR, 01-13-00641-CR, 11-12 (Tex.App.—Houston [1st
Dist.] 2015). This eliminates any chance for reasonable appellate review of these
claims. This court should remand this case to afford Mr. Glenn appellate review of his
ineffective assistance of counsel claims regarding his mental health evidence issues.
11
ARGUMENT
GROUND ONE
IF THE REASON FOR PLEADING GUILTY WAS COUNSEL’S WRONG
ADVICE, IS CONFIDENCE IN THE OUTCOME UNDERMINED?
Mr. Glenn established prejudice in his misdemeanor case by stating the reason
he pled guilty was his counsel’s advice that he could go home if he pled guilty. The
prejudice prong of ineffective assistance of counsel claims is established if the
probability that the outcome would have been different is “sufficient to undermine
confidence in the outcome” of the proceeding. Strickland v. Washington, 466 U.S. 668,
694, 104 S. Ct. 2052, 2068 (1984); Andrews v. State, 159 S.W.3d 98, 102 (Tex.Crim.App.
2005); Lopez v. State, --- S.W.3d ----, 7 (Tex.App.—Houston [1st Dist.] 2015).
In its opinion affirming the denial of Mr. Glenn’s writs of habeas corpus for his
misdemeanor charges, the first court of appeals determined that the prejudice prong
in the Strickland test was not met because “appellant has presented no evidence that ...
[he] would have insisted on proceeding to trial in both misdemeanor cases.” Ex Parte
Glenn, No. 01-14-00042, 01-14-00195, 7-8 (Tex.App.—Houston [1st Dist.] 2015).
However, Mr. Glenn did present evidence that he would have requested trial. He
stated the reason he pled guilty was because his counsel told him he could go home,
indicating if he was not told that, he would not have pled guilty. (M.N.T. R.R. at 18-
20, 63-64, M.A.J. R.R. at 58). His statements are evidence that he would not have pled
12
guilty that day and in all likelihood, would have insisted on a trial to prove his
innocence.
The first court of appeals decision in this case seems to apply a different
standard than the decision in Lopez, which was issued on the same day as this case.
(See Appendix C). This court should provide the appellate court guidance in its
application of this test.
Further, the first prong of the Strickland test was met in this case. In Galveston
County, the jail docket has defense counsel encourage pleas on the first setting.
(M.N.T. R.R. at 17). Mr. Glenn had innocence claims and a history of mental health
issues. (M.N.T. R.R. at 61-63, 65-69). The jail docket representation of the mentally
challenged in Galveston County is similar to the juvenile representation in the Cordele
Judicial Circuit, where the Dept. of Justice issued a statement of interest regarding fair
representation. N.P. v. Georgia, No. 2014-CV-241025, Statement of Interest of the
United States (Mar. 13, 2015). “There is no way that any lawyer, even an experienced
juvenile lawyer, could meet with a child, interview the child, investigate the case,
determine the legal and factual issue, assess the case and provide a child with
informed, professional advice about how to resolve the case in 15 minutes”. Southern
Center for Human Rights, Department of Justice Files Statement of Interest In Cordele Right to
Counsel Case, March 13, 2015, https://www.schr.org/DOJ. The mentally challenged in
Galveston receive, at best, token representation, but in reality, they simply are not
represented.
13
This court should find that the prejudice test was met because but for his trial
counsel’s wrong advice, Mr. Glenn would not have pled guilty. This court should
remand this case for a finding that counsel was ineffective.
GROUND TWO
ISERROR PRESERVED FOR THE LACK OF A PUNISHMENT HEARING
WHEN MITIGATION EVIDENCE IS PRESENTED AT THE MOTION FOR
NEW TRIAL HEARING?
Mr. Glenn presented punishment mitigation evidence through his mother’s
testimony and hundreds of pages of mental health medical history, thereby preserving
error for appellate review.
“Today we hold that when a trial court finds that an accused has
committed a violation as alleged by the State and adjudicates a previously
deferred finding of guilt, the court must then conduct a second phase to
determine punishment.... Thus, based upon the statute, the defendant
is entitled to a punishment hearing after the adjudication of guilt, ...” Issa
v. State, 826 S.W.2d 159, 161 (Tex.Crim.App. 1992).
The first court of appeals ruled Mr. Glenn did not preserve error because
“appellant, in the motions [for new trial], did not apprise the trial court of any
additional evidence that appellant would have offered.” Glenn v. State, No. 01-13-
00640-CR, 01-13-00641-CR, 18 (Tex.App.—Houston [1st Dist.] 2015). However, Mr.
Glenn did inform the trial court of the evidence it would have presented. Earlier in its
own opinion, the first court of appeals even admitted this evidence was presented at
the motion for new trial hearing. “At the hearings on appellant’s motions for new
14
trial, he offered into evidence hundreds of pages of his medical records.” Glenn, No.
01-13-00640-CR, 01-13-00641-CR at 11.
It seems the court of appeals is indicating that since the paper motion for new
trial did not state the specific evidence the defense would present, then error was not
preserved. However, the trial court was made aware of the evidence at the hearing.
(Exhibits to the M.N.T. R.R. Vol. 1-3). In its own opinion, the first court of appeals
contradicts itself by failing to recognize the specific evidence to be presented for
punishment mitigation, which should have been heard at a separate punishment
hearing. Since the trial court was aware of the specific evidence to be presented at the
time of the hearing on the motion for new trial, Mr. Glenn preserved error for this
issue. Therefore, this court should remand this case for a proper appellate analysis of
this issue as error was preserved.
The cases cited by the first court of appeals for this issue do not actually
support their claims. The first case ruled error was not preserved because the
defendant was allowed a full hearing related to punishment before the adjudication of
his guilt and he never articulated additional evidence, at a hearing or otherwise. Salinas
v. State, 980 S.W.2d 520, 521 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d). The
next case involved a defendant who was given a full opportunity to present
punishment mitigation evidence: first, at the adjudication hearing, and then through a
motion for new trial hearing. The defendant in this case never articulated additional
evidence, either. Lopez v. State, 96 S.W.3d 406, 415-16 (Tex. App.—Austin 2002, pet.
15
ref’d). In the third cited case, again, the defendant was given a full opportunity to
present punishment mitigation evidence before sentencing, and never articulated any
additional evidence. Hardeman v. State, 981 S.W.2d 773, 775 (Tex. App.—Houston
[14th Dist.] 1998, pet. granted).2
Unlike these cases, Mr. Glenn did articulate the additional punishment
mitigation evidence he desired to present at the motion for new trial hearing, but was
denied the opportunity to do so. (M.N.T. R.R. at 12-15) (medical records summary
denied). Further, he was never afforded an opportunity to offer this punishment
mitigation evidence earlier in any proceedings and was denied the right to present
other such evidence. (M.A.J. R.R. at 83-87) (Mr. Glenn’s mother was disallowed from
testifying to extensive mental health issues). Finally, all three of the cited cases are
from other court of appeals and are not binding law on this court or on the first court
of appeals.
2
The opinion in Hardeman tries to quote the standard from Issa as “[f]ollowing a
finding of guilt in a motion to adjudicate, the defendant is entitled to offer evidence in
mitigation of punishment if such evidence has not already been elicited during the proceedings.
See Issa v. State, 826 S.W.2d 159, 161 (Tex.Crim.App.1992) (emphasis added).”
Hardeman v. State, 981 S.W.2d at 775. Multiple problems exist here. First, the
emphasized words were never in the ruling of Issa. Hardeman misstates the Issa
standard completely. Even if these words were in the ruling, however, the standard
from Issa would still not be that a separate punishment hearing shall be afforded to
the defendant only if NO punishment evidence is presented. The standard is if the
specific evidence articulated to be presented was afforded an opportunity to be
presented. The words ‘if such evidence’ used by the court in Hardeman would refer to
specific evidence a defendant is trying to present. In this case, such evidence is the
extensive mental health medical history records and further testimony of the
defendant’s mother, which were articulated to the court as desired to be presented,
but were denied and never given an opportunity to be presented.
16
This court should find that error was preserved and remand this case to allow
Mr. Glenn his rightful separate punishment hearing.
GROUND THREE
HAS THE FIRST COURT OF APPEALS DENIED THE RIGHT FOR
IMPARTIAL APPELLATE REVIEW BY CLAIMING PREJUDICE CANNOT BE
SHOWN WHEN THE SAME JUDGE THAT ISSUED A SENTENCE RULES ON
THE MOTION FOR NEW TRIAL?
The first court of appeals has ruled in multiple cases that if the same trial judge
presided over both the sentence or adjudication of guilt and the motion for new trial,
prejudice cannot be established. Glenn, No. 01-13-00640-CR, 01-13-00641-CR at 11-
12; Goody v. State, 433 S.W.3d 74, 81 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d).
In doing so, defendants’ right for reasonable and impartial appellate review is denied.
See Tex. Cod. Crim. Proc. Sec. 44.02.
Defendants have a right to appeal their convictions. Tex. Cod. Crim. Proc. Sec.
44.02. In this case, the first court of appeals reasoning allows trial judges to cut off the
appellate review process for any ineffective assistance of counsel claims in a motion
for new trial. If a trial judge does not want their opinion reviewed, they can just be
sure to preside over both sentencing and the motions for new trial. It will be shown
that their opinion on punishment will not be affected by the new evidence in a
motion for new trial. This way, any time a defendant challenges the denial of
ineffective assistance of counsel claims, the appellate court will be forced to not
review for lack of prejudice.
17
The fourteenth court of appeals has also followed this reasoning. Potts v. State,
No. 14-10-01172-CR, 2012 WL 1380230, at *1 (Tex. App.—Houston [14th Dist.]
Apr. 19, 2012, no pet.) (mem. op., not designated for publication); Arriaga v. State, 335
S.W.3d 331, 337 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).
This reasoning should not stand, and this court needs to address this issue. The
ruling that prejudice cannot be shown merely because the same judge presided over
both proceedings is wrong. This court should provide Houston defendants with their
rights to proper analysis of ineffective assistance of counsel claims and remand this
case back to the first court of appeals to complete its appellate review.
This line of reasoning can also prevent legitimate ineffective assistance of
counsel claims being analyzed, as in this case. Mr. Glenn received ineffective
assistance of counsel at his motion to adjudicate guilt hearing because his mental
health history evidence was not presented. “[A] failure to uncover and present
mitigating evidence cannot be justified when counsel has not conducted a thorough
investigation of the defendant’s background. Shanklin v. State, 190 S.W.3d 154, 164
(Tex. App.—Houston [1st Dist.] 2005, pet. dism’d); see also Goody, 433 9 S.W.3d at 81
(“Counsel’s representation is ineffective . . . if counsel failed to conduct an adequate
investigation.”).” Glenn, No. 01-13-00640-CR, 01-13-00641-CR at 8-9.
Mitigation evidence is especially important when the defendant is mentally
challenged. “As the United States Supreme Court stated in Atkins v. Virginia, 536 U.S.
304, 320-21, 122 S. Ct. 2242, 2252 (2002), severely mentally deficient defendants ‘may
18
be less able to give meaningful assistance to their counsel and are typically poor
witnesses, and their demeanor may create an unwarranted impression of lack of
remorse for their crimes.’” Lopez v. State, --- S.W.3d ----, 14-15 (Tex.App.—Houston
[1st Dist.] 2015). Mental health issues should make counsel aware that further
investigation was needed to uncover mitigating evidence. Wiggins v. Smith, 539 U.S.
510, 527–28, 123 S. Ct. 2527, 2541–42 (2003). Mr. Glenn’s counsel owed him his right
to effective counsel of the mentally challenged, and at the least, he deserves appellate
review of his claim.
The presumption that a judge would possibly not consider mental health
mitigation evidence in his punishment sentence is poor policy as well.
Incarceration is particularly harmful to people with mental illness: Jails
can be very damaging to the stability, mental health, and physical health
of individuals with mental illness. Numerous studies show that placing
mentally ill persons in single cells, isolation, or “lock down” can worsen
their schizophrenia, depression, and anxiety. Mentally ill and mentally
retarded adults are also more likely than others to be victimized by other
inmates or jail staff. They are at high risk for suicide. They generally get
inadequate, if any, medication and treatment while in jail. Mental Illness,
Your Client and the Criminal Law: A Handbook for Attorneys Who Represent
Persons With Mental Illness, Texas Appleseed, et. al., 3rd Ed. (October
2005).
By applying the reasoning that prejudice does not exist if the same judge
presides over sentencing and motion for new trial, the first court of appeals has
denied defendants the right for appellate review. This court should remand this case
to correct this reasoning.
19
PRAYER FOR RELIEF
For the foregoing reasons, we respectfully request this court to remand this
case back to the first court of appeals to recognize evidence of prejudice for Mr.
Glenn’s misdemeanor pleas. Further, we respectfully request this court to remand this
case with instructions that error was preserved for Mr. Glenn’s lack of a punishment
hearing. Further, we respectfully request this court to remand this case with
instructions that prejudice can be found even if the same judge presides over
punishment and a motion for new trial hearing, as currently, the appellate court is
denying impartial appellate review.
Respectfully submitted,
David Suhler_______________
DAVID SUHLER
Attorney for Appellant
State Bar No. 19465900
P.O. Box 540744
Houston, Texas 77254-0744
713-522-1220
CERTIFICATE OF SERVICE AND COMPLIANCE
I hereby certify that a copy of Appellant’s Brief was electronically emailed to
the Appellate Division of the Galveston County District Attorney’s office on the 4th
day of May, 2015. This petition for discretionary review complies with Texas Rule of
Appellate Procedure 9.4(i)(3) and contains 4,231 words.
David Suhler___________________
20
APPENDICES
21
APPENDIX A
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
———————————
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.
2
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
3
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.
4
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).
5
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
6
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
7
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
8
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).
9
APPENDIX B
Opinion issued February 26, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00640-CR
NO. 01-13-00641-CR
———————————
DUSTIN WAYNE GLENN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Case Nos. 12CR2237, 12CR2238
MEMORANDUM OPINION
After appellant, Dustin Wayne Glenn, with agreed punishment
recommendations from the State, pleaded guilty to two separate offenses of
aggravated assault with a deadly weapon, 1 the trial court deferred adjudication of
his guilt and placed him on community supervision for five years. The State,
alleging several violations of the conditions of his community supervision,
subsequently moved to adjudicate appellant’s guilt on both offenses. After a
hearing, the trial court found appellant guilty and assessed his punishment at
confinement for twelve years for each offense, with the sentences to run
concurrently. In five issues, appellant contends that he received ineffective
assistance of counsel and the trial court erred in excluding relevant punishment
evidence and not conducting a separate punishment hearing after the adjudication
of his guilt.
We affirm.
Background
In its motions to adjudicate appellant’s guilt, in regard to the first offense, 2
the State alleged that he violated the conditions of his community supervision by
committing the misdemeanor offenses of criminal trespass and resisting arrest,
failing to perform community service, failing to enroll in a domestic violence
and/or anger control program, failing to reimburse Galveston County for the
attorney’s fees of his court appointed counsel, and failing to pay a community
1
See TEX. PENAL CODE ANN. § 22.02 (Vernon 2011).
2
Appellate cause number 01-13-00640-CR; trial court cause number 12CR2237.
2
supervision fee, a Crime Stoppers Program payment, and his court costs. In its
motion to adjudicate appellant’s guilt, in regard to the second offense, 3 the State
alleged that he violated the conditions of his community supervision by
committing the above offenses, failing to perform community service, failing to
enroll in a domestic violence and/or anger control program, and failing to pay a
Crime Stoppers Program payment and his court costs. Appellant pleaded “not
true” to all of the allegations in both of the State’s motions.
At the hearing on the State’s motions, Jeff Fox, appellant’s community
supervision officer, testified that he reviewed the conditions of appellant’s
community supervision in the instant causes with appellant. And appellant signed
two forms and orally affirmed that he understood the conditions of his community
supervision. On January 24, 2013, appellant pleaded no contest to the
misdemeanor offenses of criminal trespass and resisting arrest, thereby violating
the conditions of his community supervision not to commit any new offenses.
Appellant also failed to pay a $60.00 per month community supervision fee, his
Crime Stoppers Program payments, and his court costs. He also failed to
reimburse Galveston County for the attorney’s fees of his court appointed counsel.
And appellant did not perform his community service or enroll in a domestic
violence and/or anger control program.
3
Appellate cause number 01-13-00641-CR; trial court cause number 12CR2238.
3
Appellant testified that although he pleaded nolo contendere in the county
court to the misdemeanor offenses of criminal trespass and resisting arrest, he did
so only because his counsel told him that if he did so, he could “get out,” “go
home,” and “talk to his probation officer.” Appellant explained that he did not
attend or enroll in a domestic violence and/or anger control program because he
did not have a car and “didn’t know where to go.” He also did not complete any
community service hours, although he was aware that he was required to complete
sixteen hours per month. Appellant also conceded that he did not pay his Crime
Stoppers Program payments, his monthly community supervision fee, and his court
costs. And he did not reimburse Galveston County for the attorney’s fees of his
appointed counsel. And he admitted that he could have used money that he spent
on cigarettes to pay his fees. Moreover, he knew that it was his responsibility to
comply with the conditions of his community supervision.
Appellant explained, however, that his ability to read and write is lower than
a “second grade level,” he suffers from depression, and, as a child, he had mental
health issues, including “ADHD, bipolar [disorder], [and] dyslexi[a].” Doctors
prescribed medication for these conditions, and he was “on 17 different
medications before [he] was 12 years old.” And appellant, at the time of the
hearing, was on medication for depression, which made him feel “a lot happier”
and like he does not “want to hurt [himself].”
4
Appellant’s mother, Margaret Watson, testified that he had mental health
issues while “growing up,” is “bipolar,” and was committed to “the psychiatric
ward” for five days following his commission of the instant offenses. And she
noted that when appellant is on his medication, he is “a happy person”; but when
he is not, “[i]t’s like the devil’s taken over.”
After the hearing, the trial court found all of the allegations in the State’s
motion to adjudicate to be true, found appellant guilty of the instant offenses, and
assessed his punishment at confinement for twelve years for each offense, with the
sentences to run concurrently.
Appellant subsequently filed motions for new trial, arguing that he was “not
allowed to present evidence on the important status of [his] abnormal, deteriorated
and deteriorating mental status,” he was “entitled to a punishment hearing after the
adjudication of guilt,” and he received ineffective assistance of counsel. After a
hearing, the trial court denied appellant’s motions.
Ineffective Assistance of Counsel
In his fifth issue, appellant argues that his counsel, appointed to represent
him at his adjudication hearing, provided ineffective assistance because counsel
“failed to adequately investigate [his] mental health history.”
Because appellant presented his ineffective assistance of counsel claim to
the trial court in motions for new trial and received a hearing on his motions, we
5
address his issue as a challenge to the trial court’s denial of his motions, and we
review the trial court’s denial for an abuse of discretion. Biagas v. State, 177
S.W.3d 161, 170 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). We view the
evidence in the light most favorable to the trial court’s rulings and uphold the trial
court’s ruling if they were within the zone of reasonable disagreement. Wead v.
State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). We do not substitute our
judgment for that of the trial court, but rather we decide whether the trial court’s
decisions were arbitrary or unreasonable. Webb v. State, 232 S.W.3d 109, 112
(Tex. Crim. App. 2007); Biagas, 177 S.W.3d at 170. If there are two permissible
views of the evidence, the trial court’s choice between them cannot be held to be
clearly erroneous. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). A
trial court abuses its discretion in denying a motion for new trial only when no
reasonable view of the record could support the trial court’s ruling. Webb, 232
S.W.3d at 112.
We note that trial courts are in the best position to “evaluate the credibility”
of witnesses and to resolve conflicts in evidence. See Kober v. State, 988 S.W.2d
230, 233 (Tex. Crim. App. 1999). And a trial court may choose to believe or
disbelieve all or any part of the witnesses’ testimony. See id. When, as here, a
trial court makes no findings of fact regarding the denial of a motion for new trial,
we should “impute implicit factual findings that support the trial judge’s ultimate
6
ruling on that motion when such implicit factual findings are both reasonable and
supported in the record.” Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App.
2005); Escobar v. State, 227 S.W.3d 123, 127 (Tex. App.—Houston [1st Dist.]
2006, pet. ref’d).
To prove his claim of ineffective assistance of counsel, appellant must show
that (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 v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068
(1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. 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). Appellant has the burden of establishing both prongs by a preponderance of
the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). And
his “failure to satisfy one prong of the Strickland test negates” our “need to
7
consider the other prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim.
App. 2009).
In considering whether trial counsel conducted an adequate investigation for
potential mitigating evidence, we focus on whether the investigation supporting
counsel’s decision not to introduce mitigating evidence was reasonable. Wiggins v.
Smith, 539 U.S. 510, 523, 123 S. Ct. 2527, 2536 (2003); Goody v. State, 433
S.W.3d 74, 80 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). “While
‘Strickland does not require counsel to investigate every conceivable line of
mitigating evidence,’ ‘counsel can . . . make a reasonable decision to forego
presentation of mitigating evidence [only] after evaluating available testimony and
determining that it would not be helpful.’” Goody, 433 S.W.3d at 80–81 (quoting
Wiggins, 539 U.S. at 533, 123 S. Ct. at 2537). An attorney’s decision not to
investigate or to limit the scope of the investigation is given a “heavy measure of
deference” and assessed in light of all circumstances to determine whether
reasonable professional judgment would support the decision. Strickland, 466 U.S.
at 691, 104 S. Ct. at 2066. However, a failure to uncover and present mitigating
evidence cannot be justified when counsel has not conducted a thorough
investigation of the defendant’s background. Shanklin v. State, 190 S.W.3d 154,
164 (Tex. App.—Houston [1st Dist.] 2005, pet. dism’d); see also Goody, 433
8
S.W.3d at 81 (“Counsel’s representation is ineffective . . . if counsel failed to
conduct an adequate investigation.”).
In addition to establishing a deficiency in counsel’s performance, appellant
must show that a reasonable probability exists that a fact-finder’s assessment of his
punishment would have been less severe in the absence of counsel’s deficient
performance. Bazan v. State, 403 S.W.3d 8, 13 (Tex. App.—Houston [1st Dist.]
2012, no pet.); Rivera v. State, 123 S.W.3d 21, 32 (Tex. App.—Houston [1st Dist.]
2003, pet. ref’d). Our prejudice analysis turns on whether counsel’s deficiency
made any difference to the outcome of the case. Riley, 378 S.W.3d at 458. It is
not enough to show that trial counsel’s errors had some “conceivable” effect on the
outcome of the punishment assessed; the likelihood of a different result must be
“substantial.” Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 787, 792 (2011);
see also Goody, 433 S.W.3d at 81. An appellate court will not reverse a conviction
for ineffective assistance of counsel at the punishment phase of trial unless the
defendant shows prejudice as a result of deficient attorney performance. Wiggins,
539 U.S. at 534, 123 S. Ct. at 2542; Rivera, 123 S.W.3d at 32. In reviewing
whether an appellant has satisfied this showing, we accord “almost total deference
to a trial court’s findings of historical facts as well as mixed questions of law and
fact that turn on an evaluation of credibility and demeanor.” Riley, 378 S.W.3d at
458. Further, when the trial judge presiding over a motion for new trial is the same
9
judge that presided over the trial, we presume that the judge knew how evidence
admitted at the hearing on the motion for new trial could have affected the judge’s
ruling on punishment. Smith v. State, 286 S.W.3d 333, 344–45 (Tex. Crim. App.
2009); Goody, 433 S.W.3d at 81. Because application of this second prong of the
Strickland analysis is dispositive of appellant’s fifth issue, we begin here.
Appellant argues that counsel’s failure to request appellant’s medical records
“for use in the punishment phase” of the adjudication hearings prejudiced him
because “a reasonable probability exists that the court would have . . . issued a
lighter sentence.” He asserts that his medical records “demonstrate” that [his]
“mother may have abused substances while she was pregnant with [him]” and,
even if not, she and [his] father “abused substances during his childhood.”
Appellant further asserts that his “history of hospitalization for mental health issues
strongly demonstrates that his condition requires consistent attention to the mental
health problems he was born with.” Thus, if his counsel “had offered these
medical records” at the adjudication hearings, “the court would have had
information beyond the testimony of [appellant] about his mental health issues as a
child,” and the records “would have provided support” for [his] argument that
“mental health hospitalization or a lesser sentence was the proper and just result for
punishment.”
10
We note that the same judge who presided over appellant’s adjudication
hearings also presided over appellant’s motions for new trial. At the hearings on
appellant’s motions for new trial, he offered into evidence hundreds of pages of his
medical records. He asserts that his counsel should have discovered and presented
the documents to the trial court at his adjudication hearings.
Here, “[w]e presume from the trial court’s denial of [appellant’s] motion[s]
[for new trial] that the [medical records], even if discovered [by counsel and
presented at the adjudication hearing], would not have affected [the trial court’s]
decision on sentencing.” Goody, 433 S.W.3d at 81; see also Smith, 286 S.W.3d at
345 (“[W]e presume that [the trial court] knew . . . what the appellant’s testimony
. . . would be, and that, even assuming any such testimony to be accurate and
reliable, knew that it would not have influenced his” punishment determination);
Potts v. State, No. 14-10-01172-CR, 2012 WL 1380230, at *1 (Tex. App.—
Houston [14th Dist.] Apr. 19, 2012, no pet.) (mem. op., not designated for
publication) (holding defendant did not establish prejudice where same judge who
sentenced defendant also considered motion for new trial and determined
additional testimony would not have influenced punishment assessment); Arriaga
v. State, 335 S.W.3d 331, 337 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d)
(concluding defendant did not establish prejudice where trial court could have
11
concluded new testimony alleged in motion for new trial would not have
influenced its punishment assessment).
In other words, by denying appellant’s motions for new trial, “the trial court
rejected the idea that the punishment that it assessed would have been mitigated
by” appellant’s medical records. Goody, 433 S.W.3d at 81; see also Smith, 286
S.W.3d at 344 (“Only the trial judge in this case could have known what factors he
took into consideration in assessing the original punishment, and only he would
know how the defendant’s testimony, if allowed, might have affected that
assessment.”); Potts, 2012 WL 1380230, at *1 (“It was well within the trial judge’s
discretion to determine that [character witness testimony] would not have
influenced the judge’s ‘ultimate normative judgment’ in assessing punishment . . .
the trial judge simply determined the proffered testimony would not have affected
his judgment.”).
Accordingly, we hold that appellant has not established that he was
prejudiced by his counsel’s failure to discover and present his medical records to
the trial court during his adjudication hearings and the trial court did not abuse its
discretion in denying appellant’s motions for new trial. See Goody, 433 S.W.3d at
81.
We overrule appellant’s fifth issue.
12
Exclusion of Evidence
In his first issue, appellant argues that the trial court violated his due process
right to a “full opportunity to present punishment evidence” during the
adjudication hearings because “it excluded relevant childhood mental health
evidence.”
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Green v. State, 934 S.W.2d 92, 101–02 (Tex. Crim. App. 1996).
Where the trial court’s evidentiary ruling is within the “zone of reasonable
disagreement,” there is no abuse of discretion, and the reviewing court must
uphold the trial court’s ruling. Id. We will not disturb a trial court’s evidentiary
ruling if it is correct on any theory of law applicable to that ruling. De La Paz v.
State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
In regard to punishment evidence, a defendant may offer anything that “the
court deems relevant to sentencing.” TEX. CODE CRIM. PROC. ANN. art. 37.07,
§ 3(a)(1) (Vernon Supp. 2014); see also Rogers v. State, 991 S.W.2d 263, 265
(Tex. Crim. App. 1999); Henderson v. State, 29 S.W.3d 616, 626 (Tex. App.—
Houston [1st Dist.] 2000, pet. ref’d). Relevant evidence in this context is any
evidence that assists the fact-finder in determining the appropriate sentence to give
to a particular defendant in the circumstances presented, possibly including “the
prior criminal record of the defendant, his general reputation, his character, an
13
opinion regarding his character, [and] the circumstances of the offense for which
he is being tried.” TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1); Rogers, 991
S.W.2d at 265; see also Garcia v. State, 239 S.W.3d 862, 865 (Tex. App.—
Houston [1st Dist.] 2007, pet. ref’d) (“Relevance in [the punishment] context is
more a matter of policy than an application of Rule of Evidence 401; it
fundamentally consists of what would be helpful to the jury in determining
appropriate punishment.”).
Although article 37.07 allows a fact-finder to consider a wide range of
evidence in determining the appropriate punishment for a defendant, such evidence
must still satisfy Texas Rule of Evidence 403. See Ellison v. State, 201 S.W.3d
714, 718 (Tex. Crim. App. 2006) (noting article 37.07 allows “a jury to consider a
wide range of evidence in determining” punishment); Lamb v. State, 186 S.W.3d
136, 143 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (“Although a trial court
possesses wide latitude in determining the admissibility of evidence presented at
the punishment phase of trial, admitted evidence must satisfy Rule 403.”);
Henderson, 29 S.W.3d at 626 n.11 (admissibility of relevant punishment evidence
subject to rule 403). In other words, “relevant evidence [that is] otherwise
admissible under [a]rticle 37.07 is inadmissible if it fails to comport with Rule
403.” Lamb, 186 S.W.3d at 144. Rule 403 provides that “evidence may be
14
excluded if its probative value is substantially outweighed by . . . considerations of
undue delay, or needless presentation of cumulative evidence.”
Appellant argues that the trial court erred in excluding his “mother’s
testimony on his mental health history” because his “mental health history,
including his childhood mental health issues, was relevant to the judge’s
punishment decision.”
The State objected to Watson’s testimony about appellant’s mental health
during childhood as not relevant, and the trial court sustained the objection.
Appellant’s counsel then argued that such information “would be relevant to the
Court in determining punishment,” to which the court responded that it had “made
[its] ruling.” Subsequently, appellant’s counsel made the following offer of proof.
I would anticipate that this witness can provide testimony that can
provide mitigating circumstances for [the trial court] in determining
[appellant’s] future punishment. . . . I would think that the Court
would want that sort of information and it would be helpful to the
Court in determining his future punishment.
We note that appellant, himself, testified at the adjudication hearings as to
his mental health issues “when [he] was a kid,” and he explained that he suffered
from “ADHD, bipolar [disorder], and dyslexi[a].” He took “17 different
medications” before the age of twelve, but stopped taking them because he “almost
died” when his “heart almost exploded.” Appellant also stated that he currently
15
suffers from depression for which he takes medication. And when he is on
medication, he feels “a lot happier” and “do[esn’t] want to hurt [himself].”
Further, although Watson was not allowed to go into specifics about
appellant’s mental health issues as a child, she did testify that appellant had
suffered from mental health issues while he was “growing up.” And Watson noted
that appellant is “bipolar” and had been committed to “the psychiatric ward” for
five days following the aggravated assaults. Moreover, she explained that while
appellant is on medication, “[h]e’s a happy person, smiles, upbeat, cheerful, just
friendly, loving person, loves everybody, will do everything in the world for you.”
And she noted that when appellant is not on medications, “[i]t’s like the devil’s
taken over.”
Thus, the record reveals that appellant was able to present evidence about his
mental health issues, including issues during his childhood, at the adjudication
hearings. Although the trial court excluded Watson’s testimony regarding any
specifics of appellant’s mental health issues as a child, the admission of similar
evidence mitigates against any harm he might have suffered. See Mosley v. State,
983 S.W.2d 249, 258 (Tex. Crim. App. 1998) (concluding admission of evidence
similar to that excluded mitigated against possible harm). Accordingly, we hold
that the trial court did not violate appellant’s right to due process by excluding
Watson’s testimony about his childhood mental health issues.
16
We overrule appellant’s first issue.
Separate Punishment Hearing
In his second issue, appellant argues that the trial court violated his due
process right to a “full opportunity to present relevant punishment evidence”
because “it did not grant [him] a separate punishment hearing after adjudicating his
guilt.”
The Texas Code of Criminal Procedure provides that “[i]f community
supervision is revoked after a hearing . . . , the judge may proceed to dispose of the
case as if there had been no community supervision.” TEX. CODE CRIM. PROC.
ANN. art. 42.12, § 23(a) (Vernon Supp. 2014). Thus, when a trial court adjudicates
a defendant’s guilt after having deferred adjudication, the court must afford the
defendant an opportunity to present punishment evidence. See Issa v. State, 826
S.W.2d 159, 161 (Tex. Crim. App. 1992); see also TEX. CODE CRIM. PROC. ANN.
art. 42.12, § 5(b) (“After an adjudication of guilt, all proceedings, including
assessment of punishment, . . . continue as if the adjudication of guilt had not been
deferred.”).
Although a defendant is entitled to present punishment evidence at a hearing
following an adjudication of his guilt, it is a statutory right that can be waived. See
Vidaurri v. State, 49 S.W.3d 880, 886 (Tex. Crim. App. 2001); Lopez v. State, 96
S.W.3d 406, 414 (Tex. App.—Austin 2002, pet. ref’d); Foster v. State, 80 S.W.3d
17
639, 641 (Tex. App.—Houston [1st Dist.] 2002, no pet.). To preserve error, a
defendant is generally required to make a timely objection in the trial court. TEX.
R. APP. P. 33.1. And, in order to successfully complain on appeal about the denial
of the opportunity to present punishment evidence, a defendant must first make an
objection in the trial court or, if there is no opportunity to object, timely file a
motion for new trial. See Vidaurri, 49 S.W.3d at 886. If he files a motion for new
trial, he should indicate with some specificity in the motion the evidence that he
would have presented if the separate hearing had been provided. See Salinas v.
State, 980 S.W.2d 520, 521 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d).
Here, appellant asserts that although he “did not have an opportunity to
object to the trial court’s failure to grant a separate punishment hearing,” he
“preserve[d] error through timely raising the objection in [his] motion[s] for new
trial.” However, appellant, in his motions for new trial, only argued that the trial
court should have granted him new trials because it failed to give him a separate
punishment hearing after adjudicating his guilt. Notably, appellant, in the motions,
did not apprise the trial court of any additional evidence that appellant would have
offered. See Salinas, 980 S.W.2d at 521; see also Lopez, 96 S.W.3d at 415 n.3
(although defendant, in his motion for new trial, “did complain of a lack of a
separate punishment hearing,” he “did not specify” the evidence he “would have
presented”); Hardeman v. State, 981 S.W.2d 773, 775 (Tex. App.—Houston [14th
18
Dist.] 1998, pet. granted) (“[A]ppellant’s motion for new trial only complained that
the motion to adjudicate proceeding ‘was invalid’ because the trial court imposed
punishment ‘without conducting a separate hearing after the finding of guilt’. . . .
Without having apprised the trial court of what additional evidence would have
been offered, appellant has not preserved this complaint for appellate review.”),
aff’d, 1 S.W.3d 689 (Tex. Crim. App. 1999). Because appellant, in his motions for
new trial did not inform the trial court of the evidence that he would have
presented during separate punishment hearings, we hold that he has not preserved
this issue for our review. See TEX. R. APP. P. 33.1.
We overrule appellant’s second issue.
Ineffective Assistance of Counsel During Misdemeanor Proceedings
In his third issue, appellant argues that the trial court erred in denying his
motions for new trial because his counsel, appointed to defend him in the county
court at law in his misdemeanor criminal-trespass and resisting-arrest cases,
provided him with ineffective assistance, rendering his pleas in the cases
involuntary. Appellant asserts that “[t]he State should not have been able to
benefit from [his] misguided [pleas] to criminal trespass and resisting arrest” by
using those convictions as grounds to adjudicate his guilt in his aggravated assault
cases.” Appellant requests that we “reverse [his] misdemeanor convictions” and
remand the instant cases for new adjudication and punishment hearings.
19
In order for this Court to review appellant’s challenge to his convictions for
the misdemeanor offenses of criminal trespass and resisting arrest on direct appeal,
appellant was required to file notices of appeal of the convictions within thirty days
after the sentences were imposed on January 24, 2013. See TEX. R. APP. P.
26.2(a)(1). Appellant did not file any notice of appeal from his January 24, 2013
misdemeanor convictions. Without a timely notice of appeal, we are without
jurisdiction to address the merits of appellant’s argument that his misdemeanor
convictions should be reversed because he involuntarily entered his pleas due to
ineffective assistance of counsel. See Slaton v. State, 981 S.W.2d 208, 210 (Tex.
Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996).
Moreover, we note that the trial court also adjudicated appellant’s guilt in
the instant cases on other grounds. It expressly found that appellant had violated
the conditions of his community supervision by failing to perform community
service, failing to enroll in a domestic violence and/or anger control program,
failing to reimburse Galveston County for the attorney’s fees of his appointed
counsel, and failing to pay a community supervision fee, his Crime Stopper
Program payments, and his court costs. And, proof of a single violation of his
conditions of community supervision is sufficient to support the trial court’s
adjudication of his guilt. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim.
App. 1980); Canseco v. State, 199 S.W.3d 437, 439 (Tex. App.—Houston [1st
20
Dist.] 2006, pet. ref’d). Here, appellant has not challenged any of the other
grounds supporting the trial court’s adjudication of his guilt of the instant offense.
We overrule appellant’s third issue.
Conclusion
We affirm the judgment of the trial court in each cause. 4
Terry Jennings
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Keyes.
Do not publish. TEX. R. APP. P. 47.2(b).
4
In his fourth issue, appellant contends that the Galveston County Court at Law No.
3 erred in denying the petitions for writs of habeas corpus that he filed there,
challenging his convictions for the offenses of criminal trespass and resisting
arrest. Appellant has separately appealed the county court’s denials of his
applications for writs of habeas corpus, and we address appellant’s challenges in a
separate opinion. See Glenn v. State, 01-14-00042-CR & 01-14-00195-CR (Tex.
App.—Houston [1st Dist.] Feb. 26, 2015, no pet. h.) (mem. op.).
21
APPENDIX C
Opinion issued February 26, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-01079-CR
———————————
LENIN SALDADO LOPEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Case No. 1403196
OPINION
Lenin Saldado Lopez pleaded guilty to aggravated robbery without a
recommended sentence. Following a presentence investigation, the trial court
sentenced Lopez to 30 years’ confinement. Lopez filed a motion for new trial,
arguing that his trial attorney provided ineffective assistance of counsel. The
motion was denied.
In one issue, Lopez argues that his attorney provided ineffective assistance
during the punishment phase of his trial and the trial court, therefore, erred in
denying his motion for new trial. Specifically, Lopez alleges that his attorney
failed to investigate his background or gather and present mitigating evidence at
the sentencing hearing and, instead, left it to Lopez—who is alleged to be
“significantly developmentally disabled [with] various mental health problems”—
to prepare for the sentencing hearing unassisted.
Because we conclude that the attorney was deficient and that Lopez
established prejudice as a result of the ineffective assistance, we reverse the trial
court’s order and remand for a new sentencing hearing.
Background
Lopez was indicted on the felony offense of aggravated robbery. He was
alleged to have injured an individual while he and another man robbed him at
gunpoint. When Lopez and the other man were arrested, they had two robbery
victims’ wallets and clothing items in their possession, as well as a large sum of
cash.
Lopez hired an attorney to represent him. During plea negotiations, the State
offered a plea deal that included a 15-year sentence, which was the minimum
2
applicable sentence. Lopez rejected the offer. On the day of trial, his attorney filed
a motion to withdraw. Counsel stated that “[g]ood cause exists for withdrawal
[because counsel] is unable to effectively communicate with Lenin Lopez so as to
be able to adequately represent” him and that Lopez “has failed to comply with the
terms of the employment agreement [because he] has failed and refused to pay for
legal services per the terms of his contract.”
Counsel simultaneously filed a motion for continuance, stating that he
needed to complete trial preparations, which had been delayed due to his handling
of another case. Counsel again stated that he had not been fully paid. The motion
for continuance also asserted that “the Court’s records indicate that the Defendant
has retained other counsel, so [the attorney moving for a continuance] has not
prepared for trial.” The motion does not identify where in the record there is an
indication of dual representation. Nor do we find one.
There are no orders in the record granting or denying these two motions.
Instead, the record reveals that—on the same day the motions were filed and Lopez
was scheduled for trial—he pleaded guilty without a sentencing recommendation.
The trial court accepted the guilty plea, ordered a presentence investigation (PSI),
and scheduled a sentencing hearing to occur two months later.
On the same day as the withdrawal motion and the guilty plea, Lopez’s
attorney sent him a letter telling him to accumulate mitigation evidence. He told
3
Lopez to collect “‘good guy’ letters” and to give them directly to the probation
department when he was interviewed as part of the presentence investigation; to
meet with counsel on the day of the sentencing hearing 15 minutes before it was
scheduled to begin; and to bring to the hearing people “to support you.” The letter
also asked that Lopez “get current” on his fee payments.
The only letter Lopez gave the PSI investigator was from his girlfriend. She
focused her comments on her belief that Lopez was innocent. Her letter did not
focus on the issue actually before the trial court, which was the appropriate
sentence to be imposed, given that Lopez had already admitted guilt.
Lopez’s counsel did not appear at the pre-scheduled sentencing hearing. The
hearing was reset for a couple of days later. Again, he did not appear. Without an
attorney there to counsel him, Lopez indicated to the court that he wanted to “back
out” of his plea. Lopez’s bond was immediately revoked, and he was taken into
custody to await sentencing. The trial court indicated that he viewed Lopez, at that
point, as a “flight risk.” Lopez remained in custody until the sentencing hearing
was eventually held. His plea was not changed.
At the sentencing hearing, trial counsel presented Lopez’s defense in a
single sentence:
Your Honor, my client has instructed me to advise the Court that
whatever sentence is given, he would want it to be the absolute
minimum because he believes he’s going to be a great role model for
4
both his son and his wife and the community at large. And other than
the statement from Mr. Lopez, that’s all I have.
Counsel informed the court, “Your Honor, there’s no evidence that’s being offered
today, no deletions, additions, objections, et cetera to the PSI.” Thus, no mitigation
evidence was presented to the court outside of what had been provided to the PSI
investigator.
At the hearing, the State directed the Court to a written statement from the
victim, describing the panic and fear he continues to feel as a result of Lopez
robbing and beating him with a gun. The victim requested that Lopez receive the
maximum available sentence so that he could not rob again or “kill innocent
people.”
Without either side offering any other aggravating or mitigating evidence,
the State requested a sentence between 30 and 35 years. The trial court sentenced
Lopez to 30 years. After sentencing, his trial counsel successfully withdrew his
representation.
Lopez was appointed new counsel, who filed a motion for new trial. Lopez
argued that his trial counsel had provided ineffective assistance of counsel, which
caused his guilty plea to be involuntarily made and his presentation of mitigating
evidence deficient. Specifically, he contended that his counsel failed to present
mitigating evidence of Lopez’s past mental-health issues.
5
Trial counsel did not testify at the new-trial hearing. Instead, his affidavit
was admitted into evidence. The affidavit stated that the attorney was unaware of
Lopez’s having any mental health issues.
Lopez presented additional mitigation evidence at the new-trial hearing. This
evidence included affidavits from two individuals who averred that Lopez’s trial
counsel never contacted them about testifying on his behalf at the sentencing
hearing, from his girlfriend who stated that trial counsel did not assist in
preparations for the sentencing hearing, and from his mother who stated that trial
counsel never returned her phone calls. Additionally, the trial court admitted into
evidence the letter from Lopez’s attorney telling him to gather mitigating evidence
and to submit it directly to the PSI investigator.
Lopez also presented the trial court with two written reports. The first was a
“synopsis of psychosocial interview” conducted by a psychosocial worker in the
Harris County Public Defender’s Office after he retained new counsel. The second
was an earlier “psychological screening” signed by a Harris County-affiliated
psychologist. Lopez argued that his trial counsel should have incorporated the
mental-health information into his mitigation defense at the sentencing hearing.
The trial court denied Lopez’s new-trial motion. On appeal, Lopez contends
that the trial court erred by denying his motion but, in doing so, he limits his
6
argument to the assertion that trial counsel was deficient during the punishment
phase of his trial.
Standards of Review
To prevail on a claim of ineffective assistance of counsel, the defendant
must show that (1) his counsel’s performance was deficient and (2) a reasonable
probability exists that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064 (1984); Andrews v. State, 159 S.W.3d 98, 101–02 (Tex.
Crim. App. 2005). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at
2068; Andrews, 159 S.W.3d at 102. The defendant has the burden to establish both
prongs by a preponderance of the evidence; failure to make either showing defeats
an ineffectiveness claim. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App.
2011); see Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).
Allegations of ineffective assistance of counsel must be firmly rooted in the
record. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Escobar v.
State, 227 S.W.3d 123, 127 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). We
do not limit our review to a single portion of the representation; instead, we look to
the totality of the representation to determine the effectiveness of counsel.
Strickland, 466 U.S. at 688–89, 695, 104 S. Ct. 2065, 2069; Thompson v. State, 9
7
S.W.3d 808, 813 (Tex. Crim. App. 1999); Bridge v. State, 726 S.W.2d 558, 571
(Tex. Crim. App. 1986). In viewing counsel’s performance, we indulge a strong
presumption that his performance falls within the wide range of reasonable
professional assistance or trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct.
2065; Thompson, 9 S.W.3d at 813. We will conclude that counsel was deficient
only if “the conduct was so outrageous that no competent attorney would have
engaged in it.” Andrews, 159 S.W.3d at 101. If the record is silent as to counsel’s
strategy, the presumption of effectiveness is sufficient to deny relief. See Rylander
v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003).
Given that Lopez raised his ineffective assistance claim in a motion for new
trial, we analyze the issue on appeal as a challenge to the trial court’s denial of his
new-trial motion and review it under an abuse-of-discretion standard. Charles v.
State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004); Starz v. State, 309 S.W.3d
110, 118 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). Thus, we reverse only
if the trial court’s decision to deny the motion for new trial was arbitrary or
unreasonable, viewing the evidence in the light most favorable to the trial court’s
ruling. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012); Starz, 309
S.W.3d at 118. A decision is arbitrary or unreasonable if no reasonable view of the
record could support the trial court’s ruling. Webb v. State, 232 S.W.3d 109, 112
(Tex. Crim. App. 2007); Charles, 146 S.W.3d at 208.
8
Strickland First Prong
To satisfy the first prong of the Strickland test to establish ineffective
assistance of counsel, Lopez had the burden to demonstrate that his attorney’s
professional services fell below an objectively reasonable standard. Strickland, 466
U.S. at 687–88, 104 S. Ct. at 2064.
A. Counsel’s duty to actively represent his client
Criminal defendants have a constitutional right to counsel. Strickland, 466
U.S. at 684, 104 S. Ct. at 2063; U.S. CONST. amend. VI. This requires more than
the physical presence of an attorney at the proceeding:
That a person who happens to be a lawyer is present at trial alongside
the accused . . . is not enough . . . . [T]he right to the assistance of
counsel . . . envisions counsel[] playing a role that is critical to the
ability of the adversarial system to produce just results. An accused is
entitled to be assisted by an attorney, whether retained or appointed,
who plays the role necessary to ensure that the trial is fair.
Strickland, 466 U.S. at 685, 104 S. Ct. at 2063.
Counsel is expected to use his professional judgment to prepare for trial and
to advise his client. Id. at 680–81; 104 S. Ct. at 2060–61. An “attorney who
represents a criminal defendant is ‘bound by professional duty to present all
available evidence and arguments in support of (the client’s) positions and to
contest with vigor all adverse evidence and views.’” Thomas v. State, 550 S.W.2d
64, 68 (Tex. Crim. App. 1977) (quoting Gagnon v. Scarpelli, 411 U.S. 778, 787,
9
93 S. Ct. 1756, 1762 (1973); Wenzy v. State, 855 S.W.2d 47, 50 (Tex. App.—
Houston [14th Dist.] 1993, pet. ref’d).
Unless a motion to withdraw has been granted, a criminal defense attorney
has a continuing duty to represent his client to the fullest of his ability. See Wenzy,
855 S.W.2d at 50; TEX. DISCIPLINARY R. PROF. CONDUCT 1.15(c) (1990).
B. Counsel’s duty to investigate and evaluate mitigation evidence
“The decision whether to present witnesses is largely a matter of trial
strategy.” Lair v. State, 265 S.W.3d 580, 594 (Tex. App.—Houston [1st Dist.]
2008, pet. ref’d). We defer to trial court’s determination of trial strategy and his
choice of witnesses so long as any conceivable strategy can be imagined for the
actions taken or not taken. Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App.
2003).
But “counsel can only make a reasonable decision to forgo presentation of
mitigating evidence after evaluating available testimony and determining it would
not be helpful.” Lair, 265 S.W.3d at 595. Thus, “[c]ounsel is ineffective when he
fails to investigate and interview potential punishment witnesses, despite their
availability and willingness to testify on appellant’s behalf . . . .” Id.; Wiggins v.
Smith, 539 U.S. 510, 521–24, 123 S. Ct. 2527, 2535–36 (2003). Counsel’s failure
to uncover and present mitigating evidence “cannot be justified as a tactical
decision when defense counsel has not conducted a thorough investigation of the
10
defendant’s background.” Shanklin v. State, 190 S.W.3d 154, 164 (Tex. App.—
Houston [1st Dist.] 2005, pet. dism’d) (“Defense counsel’s failure to investigate
and call any punishment witnesses amounts to deficient performance.” (emphasis
added)); see also Wiggins, 539 U.S. at 527–28, 123 S. Ct. at 2538 (noting that trial
counsel’s discovery of some favorable mitigating evidence may require counsel, as
part of provision of reasonable professional services, to investigate further for
additional mitigating evidence).
C. The evidence concerning counsel’s investigation and presentation of
mitigation evidence
Lopez’s motion for new trial alleged that trial counsel failed to present
mitigating evidence at the sentencing hearing. Lopez attached a report to his
motion that indicated a history of mental health issues. At the hearing, Lopez
introduced into evidence an affidavit from his trial counsel responding to the
allegation. Counsel stated, “I am unaware of Mr. Lopez having any mental health
issues or history.”
The new-trial motion complained of other areas of mitigation evidence being
omitted as well. Lopez contended that counsel was deficient by failing to inform
the trial court that he “has been affected by tragedy and instability during his
childhood and has people who know him to be a good person.” Lopez attached to
the motion an affidavit from his girlfriend, stating that trial counsel “never did
anything to prepare for the PSI” and “never asked us any questions about [his]
11
background.” She averred that trial counsel “never wanted to see any of the letters
from friends of the family,” which he previously told them to send directly to the
probation officer. She stated that the letters were sent “without any help from the
lawyer.” She further stated, “We owed him money so he never did any work on the
case and would not even meet with us at his office.” 1 Trial counsel’s affidavit did
not respond to these allegations.
The trial court admitted additional evidence at the hearing that had not been
included with the new-trial motion. This included letters from two people stating
that they had not been contacted by trial counsel before the sentencing hearing and
that, had they been contacted, they would have been willing to testify positively
about Lopez. There was an additional affidavit from Lopez’s mother stating that
trial counsel “would not return our calls,” she and counsel had never spoken, and
she was unable to attend the sentencing hearing because of recent surgery. The
final piece of evidence admitted at the new-trial hearing was the letter from trial
counsel to Lopez written the day he pleaded guilty, instructing him to collect
“‘good guy’ letters,” deliver the letters directly to the probation officer, and bring
people to the sentencing hearing who “support” him.
1
Also attached to the motion were two letters that Lopez alleges he and his
girlfriend unsuccessfully attempted to have included in the PSI. The final
attachment was the partially redacted psychological screening report from
several years earlier.
12
None of this evidence, other than the mental health report and the
girlfriend’s affidavit, was presented to the trial court until the new-trial hearing,
meaning that it was submitted after the trial attorney prepared his affidavit. As a
result, counsel’s affidavit does not respond to these assertions. Likewise, because
trial counsel did not testify at the new-trial hearing, the trial court did not receive
any evidence directly responsive to the affidavits. Nonetheless, the record is not
devoid of evidence concerning counsel’s preparation for the sentencing hearing.
Counsel’s letter to Lopez, sent after counsel had unsuccessfully attempted to
withdraw his representation and Lopez had pleaded guilty, instructed Lopez to
collect supportive letters, give them directly to the PSI investigator for inclusion in
the PSI report, and meet counsel at the sentencing hearing. He gave no indication
that he was willing to assist with interviewing potential witnesses or reviewing
their statements before they were submitted.
The reasonable inferences from counsel’s letter are that counsel had
assigned to Lopez the task of identifying and contacting potential character
witnesses and determining what should, and should not, be included in their
character-reference letters—without any assistance from counsel—and that
counsel’s next involvement in the case would not be until the hearing. Cf. Hooper
v. State, 214 S.W.3d 9, 15–16 (Tex. Crim. App. 2007) (noting that “an inference is
a conclusion reached by considering other facts and deducing a logical
13
consequence from them” while speculation “is mere theorizing or guessing about
the possible meaning of facts and evidence presented.”). This inference is further
supported by the affidavits from Lopez, his girlfriend, and mother, as well as by
the letters from acquaintances of Lopez who were never contacted by counsel.
The delegation of the important task of developing mitigation evidence was
inconsistent with trial counsel’s professional obligation to conduct a reasonable
investigation into his client’s background and to evaluate whether the information
discovered would be helpful in mitigating against the State’s evidence on
punishment. See Williams v. Taylor, 529 U.S. 362, 396, 120 S. Ct. 1495, 1514–15
(2000); Rivera v. State, 123 S.W.3d 21, 31 (Tex. App.—Houston [1st Dist.] 2003,
pet. ref’d); see also Wenzy, 855 S.W.2d at 50; TEX. DISCIPLINARY R. PROF.
CONDUCT 1.15(c) (1990).
Further, the PSI report was provided to trial counsel at least 10 days before
the sentencing hearing, and it indicated that Lopez had a below-normal IQ and
mental-health diagnoses. That information should have raised an issue for counsel
whether additional investigation was necessary to uncover more mitigating
evidence. Wiggins, 539 U.S. at 527–28, 123 S. Ct. at 2538. At a minimum, it
should have raised the issue of whether Lopez was capable of effectively
evaluating the mitigation evidence available to him without attorney assistance. As
the United States Supreme Court stated in Atkins v. Virginia, 536 U.S. 304, 320–
14
21, 122 S. Ct. 2242, 2252 (2002), severely mentally deficient defendants “may be
less able to give meaningful assistance to their counsel and are typically poor
witnesses, and their demeanor may create an unwarranted impression of lack of
remorse for their crimes.”
Moreover, by telling Lopez to bring supporters directly to the hearing just 15
minutes before it was to begin, it is evident that counsel would not have had
sufficient time to interview and prepare these witnesses not only for direct
examination but also for cross-examination. And, without that information, he
would not have had the information necessary to determine whether, on balance,
Lopez’s defense would be aided by each witness.2 See Wiggins, 539 U.S. at 527–
28, 536, 123 S. Ct. 2538, 2543; Lair, 265 S.W.3d at 595 (“[C]ounsel can only
make a reasonable decision to forgo presentation of mitigating evidence after
evaluating available testimony and determining it would not be helpful.”).
Even absent direct testimony from trial counsel regarding his strategy in
preparation for the sentencing hearing or strategy during the hearing, we conclude
that the only reasonable inference from the evidence presented to the trial court,
2
It is not even clear that Lopez could have reasonably understood his counsel’s
letter to state that he should bring potential witnesses to the hearing to testify on
his behalf. The letter states only that Lopez should bring people “to support” him.
Lopez reasonably could have understood the letter to suggest that he bring people
to observe the proceeding and offer him non-participatory, emotional support—an
action that would not have added to his mitigation defense.
15
including counsel’s own letter to his client, is that counsel did not participate in
collecting mitigation evidence, did not review the mitigating evidence his client
collected without his assistance, and did not present any mitigation evidence on his
client’s behalf at the hearing. The evidence, thus, rebuts the presumption of
effectiveness of counsel, Strickland, 466 U.S. at 689, 104 S. Ct. 2065, and
demonstrates that counsel failed to perform as a reasonably competent attorney.
Andrews, 159 S.W.3d at 101.
Accordingly, we conclude that counsel’s performance fell below an
objective standard of reasonableness and, as a result, the first prong of the
Strickland test was met in support of Lopez’s new-trial motion.
Strickland Second Prong
In addition to demonstrating that his attorney’s services fell below an
objectively reasonable standard, Lopez also had to establish that defense counsel’s
deficient performance prejudiced him. Strickland, 466 U.S. at 694, 104 S. Ct. at
2068; Rivera, 123 S.W.3d at 32. This is the second prong of the Strickland test. See
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
For the punishment phase, our inquiry is whether there is a reasonable
probability that the assessment of punishment would have been less severe in the
absence of defense counsel’s deficient performance. Wiggins, 539 U.S at 534, 123
S. Ct. at 2542; Lair, 265 S.W.3d at 595. Prejudice is established if the probability
16
that the outcome would have been different is “sufficient to undermine confidence
in the outcome” of the proceeding. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068;
Andrews, 159 S.W.3d at 102. Our “ultimate focus” is whether “the result of the
particular proceeding is unreliable because of a breakdown in the adversarial
process that our system counts on to produce just results.” Strickland, 466 U.S. at
696, 104 S. Ct. at 2069.
As this Court has previously noted, “[t]he sentencing process consists of
weighing mitigating and aggravating factors, and making adjustments in the
severity of the sentence consistent with this calculus.” Shanklin, 190 S.W.3d at
165. Thus, the adversarial process is hindered if the factfinder is denied access to
powerful mitigating evidence, leaving only the aggravating factors for its
consideration. See Williams, 529 U.S. at 395–99, 120 S. Ct. at 1514–16 (holding
that defendant was prejudiced by counsel’s ineffectiveness in not investigating or
presenting mitigating evidence, including “nightmarish” childhood, repeated past
sexual assaults during his youth, extremely low IQ, and several positive character
references from professionals in community who had witnessed defendant excel in
structured environments).
When defense counsel presents “no evidence of mitigating factors . . . to
balance against the aggravating factors presented by the State” and fails to do so
because he did not investigate mitigating factors or contact potential mitigation
17
witnesses, there is prejudice. Shanklin, 190 S.W.3d at 165. Prejudice exists, in that
context, because there is not even a possibility of the factfinder considering
mitigating evidence. See id. at 165–66 (“We conclude that appellant has
demonstrated prejudice in this case . . . . [D]efense counsel’s failure to interview or
call a single witness, other than appellant, deprived him of the possibility of
bringing out even a single mitigating factor.”); Lair, 265 S.W.3d at 595–96.
Here, trial counsel presented no mitigating evidence, not even Lopez
himself. Two people averred that they would have testified favorably for Lopez
had they been contacted by counsel, but they were never contacted. Even though
the PSI report contained information indicating that Lopez had a troubled
background, including intellectual deficiencies that impacted his general
intelligence, school performance, and decision-making, counsel failed to highlight
even one piece of this information to the trial court. 3 See Williams, 529 U.S. at
395–99, 120 S. Ct. at 1514–16; Wiggins, 539 U.S. at 534, 123 S. Ct. at 2542.
The only “evidence” counsel offered at the sentencing hearing was his one-
sentence statement to the trial court that his client wanted the court to know that he
considered himself to be a good role model. This statement was made in an
evidentiary vacuum: counsel provided absolutely no evidence to support Lopez’s
3
In fact, based on his affidavit that he was unaware of any mental-health issues,
Lopez raises the issue whether counsel had read the PSI report before the
sentencing hearing.
18
belief that he could be a good role model. He failed to offer examples of past good
deeds, positive interactions, supportive friends or family, or any other mitigating
evidence. See Wiggins, 539 U.S. at 536–38, 123 S. Ct. at 2543–44 (concluding that
defendant was prejudiced by counsel’s failure to present any of large amount of
available mitigating evidence to counter obvious aggravating factors, including
violent nature of charged offense and defendant’s lengthy criminal history).
Without any context or basis for counsel’s statement, it was little more than empty
rhetoric.
Had trial counsel investigated and brought mitigating factors to the trial
court’s attention, that information would have been weighed against the
aggravating factors in the case, which were significant, including the violence that
was used to commit the robbery, indications that Lopez had been involved in other,
recent robberies, and a criminal history that included drug possession, a separate
theft conviction, a trespass conviction, and a previous aggravated robbery that
resulted in a three-year sentence. Instead there was nothing to weigh against the
strong aggravating factors.
By neither investigating nor presenting evidence for the trial court to
consider in assessing punishment, trial counsel deprived Lopez of even a
possibility of developing a mitigating defense. Thus, prejudice is established. See
Shanklin, 190 S.W.3d at 165–66 (“We conclude that appellant has demonstrated
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prejudice in this case, even though we cannot say for certain that appellant’s
character witnesses would have favorably influenced the jury’s assessment of
punishment. We have no doubt, however, that defense counsel’s failure to
interview or call a single witness, other than appellant, deprived him of the
possibility of bringing out even a single mitigating factor.” (internal citations
omitted)).
We therefore conclude that the trial court erred in denying Lopez’s motion
for new trial on punishment and sustain Lopez’s sole issue on this appeal.
Conclusion
We have concluded that Lopez’s counsel was deficient and that the
deficiency prejudiced Lopez during sentencing. Accordingly, we reverse the trial
court’s order denying Lopez’s new-trial motion and remand the cause for a new
punishment hearing pursuant to article 44.29(b) of the Texas Code of Criminal
Procedure. TEX. CODE CRIM. PROC. ANN. art. 44.29(b) (West 2013); Lair, 265
S.W.3d at 596 (remanding for new punishment hearing). Because Lopez’s appeal
was limited to the issue of punishment, we have not reviewed the trial court’s
determination of guilt. That portion of the trial court’s judgment has not been
challenged and remains unchanged.
Harvey Brown
Justice
20
Panel consists of Justices Keyes, Higley, and Brown.
Publish. TEX. R. APP. P. 47.2(b).
21