Glenn, Ex Parte Dustin Wayne

Opinion

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

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

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.

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.

We affirm the judgment of the trial court in each cause. 4

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

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

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.

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

19 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.

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).