COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-07-111-CR
LAWRENCE B. GLASS APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
MEMORANDUM OPINION 1
I. INTRODUCTION
Appellant Lawrence B. Glass pleaded guilty to the offense of murder, and
the trial court sentenced him to fifteen years’ confinement. The trial court
certified that Glass had the right to appeal, and this appeal followed. 2 Because
1 … See T EX. R. A PP. P. 47.4. 2 … Concurrently with his appellate brief, Glass filed a “Motion To Abate Appeal,” requesting that the appeal be abated for an evidentiary hearing to allow him to develop “testimony that goes to the heart of the attorney/client relationship and the status of the appellant as an informed client at the time of the State concedes that the trial court erred by making a finding that the
murder was a “3g offense,” we will modify the judgment to delete this finding.
See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 4.01, sec. 3g, 1993
Tex. Gen. Laws 3716, 3718 (current version at T EX. C ODE C RIM. P ROC. A NN. art.
42.12, § 3g (Vernon Supp. 2007)) (adding murder as a 3g offense). For the
reasons set forth below, we will affirm the judgment as modified.
II. A LLEGED INEFFECTIVE A SSISTANCE IN P RIOR H ABEAS
In a single point, Glass argues that his habeas counsel [a different lawyer
than the one representing him in the murder case] was ineffective by failing to
pursue a subsequent 11.072 writ of habeas corpus concerning a prior 1947
conviction for burglary of a house because that conviction prevented Glass from
being probation-eligible for the murder at issue here. Glass raised this issue in
the trial court by arguing in a pretrial motion that he should be permitted to file
an affidavit for probation concerning the murder charge and to have the jury
consider probation because his 1947 conviction was unconstitutional in that he
committed the offense when he was sixteen years old and because the State
waited until he was seventeen to indict him.
The trial court allowed Glass to put on evidence in support of this pretrial
motion. Glass introduced the testimony of his habeas counsel into evidence,
trial.” This court denied Glass’s abatement motion by order on December 17, 2007; therefore, we need not further address his abatement arguments.
2 as well as documentary evidence establishing the following. In February 2005,
Glass filed an “Application For A Writ Of Habeas Corpus Seeking Relief From
Final Felony Conviction Under Code Of Criminal Procedure, Article 11.07,”
which argued that he had been improperly charged as an adult for the 1947
burglary offense because he was only sixteen when the offense was committed
and because the State waited until he was seventeen to indict him. 3 The
district court recommended to the court of criminal appeals that no habeas
relief be granted, and the court of criminal appeals subsequently dismissed
Glass’s 11.07 habeas application on the ground that Glass’s community
supervision had never been revoked.4 Consequently, Glass then filed an article
11.072 writ application. The court of criminal appeals also dismissed Glass’s
11.072 writ application, but in a concurring statement, Justice Johnson
explained that dismissal was required because (1) the trial court, the
prosecutor, and the district clerk’s office had all mistakenly treated Glass’s
11.072 writ as an 11.07 writ; (2) Glass had failed to plead collateral
consequences from the allegedly improper conviction to avoid dismissal on the
grounds that the sentence he was purportedly still on probation for had long
3 … Glass was born on November 12, 1930. 4 … Fifty-eight years had elapsed between Glass’s burglary conviction and the time that he filed his 11.07 application for a writ of habeas corpus; Glass initiated the habeas proceeding after he was indicted for murder.
3 since expired; and (3) Glass’s complaint that he had been sixteen when he
committed the burglary and that the county waited until he was seventeen to
indict him should have been raised on direct appeal from the burglary
conviction. Ex parte Glass, 203 S.W.3d 856, 857 (Tex. Crim. App. 2006)
(dismissing habeas corpus application) (Johnson, J., concurring). Justice
Johnson wrote, “It is to be hoped that, should applicant file another application
under Art. 11.072, the court, the state, and the clerk will respond
appropriately.” Id.
Glass’s habeas counsel testified at the pretrial hearing that in light of
Justice Johnson’s statement, it was his intent to file another article 11.072
writ of habeas corpus but that he had not done so at the time of the pretrial
hearing.
Based on these facts, Glass now argues in his sole point in this appeal
from his murder conviction that his 1947 burglary conviction was
“unconstitutional”—therefore he should have been probation-eligible in the
murder case—and that his habeas counsel’s failure to file a second article
11.072 writ concerning the burglary case offense to make him probation
eligible in the murder case constituted ineffective assistance of counsel. Glass
bases his unconstitutionality argument solely on the United States Constitution.
The law is well established, however, that no right exists under the
4 United States Constitution to assistance of counsel in a habeas proceeding.
See Coleman v. Thompson, 501 U.S. 722, 754, 111 S. Ct. 2546, 2567 (1991)
(“There is no constitutional right to an attorney in state post-conviction
proceedings[;] . . . [c]onsequently, a petitioner cannot claim constitutionally
ineffective assistance of counsel in such proceedings.”); Ex parte Graves, 70
S.W.3d 103, 113 (Tex. Crim. App. 2002) (same); Martinez v. Johnson, 255
F.3d 229, 240–41 (5th Cir. 2001) (same), cert. denied, 534 U.S. 1163
(2002).5 The courts have explained that when a procedural default results from
attorney error with respect to a proceeding in which there is a constitutional
right to counsel, then the State bears the ultimate responsibility for the error (a
new trial is required). See, e.g., Coleman, 501 U.S. at 754, 111 S. Ct. at
2567. But when a procedural default results from attorney error with respect
to a proceeding in which there is no constitutional right to counsel, then the
State bears no responsibility to ensure that the defendant is represented by
competent counsel, and it is the defendant who must bear the burden of any
procedural default error. Id., 111 S. Ct. at 2567. Because there is no right
under the United States Constitution to assistance of counsel in a habeas
proceeding, there is likewise no parallel right to effective assistance of counsel.
Ex parte Graves, 70 S.W.3d at 113. Consequently, Glass’s attempt to
collaterally attack his 1947 burglary conviction on ineffectiveness-of-habeas-
5 … We recognize that a statutory right to assistance of counsel, who must be effective, exists in Texas for defendants sentenced to death. See T EX. C ODE C RIM. P ROC. A NN. art. 11.071, § 2 (Vernon Supp. 2007).
5 counsel grounds through the appeal of the present murder conviction fails.6
See, e.g., Coleman, 501 U.S. at 754, 111 S. Ct. at 2567.
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-07-111-CR
LAWRENCE B. GLASS APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
MEMORANDUM OPINION 1
I. INTRODUCTION
Appellant Lawrence B. Glass pleaded guilty to the offense of murder, and
the trial court sentenced him to fifteen years’ confinement. The trial court
certified that Glass had the right to appeal, and this appeal followed. 2 Because
1 … See T EX. R. A PP. P. 47.4. 2 … Concurrently with his appellate brief, Glass filed a “Motion To Abate Appeal,” requesting that the appeal be abated for an evidentiary hearing to allow him to develop “testimony that goes to the heart of the attorney/client relationship and the status of the appellant as an informed client at the time of the State concedes that the trial court erred by making a finding that the
murder was a “3g offense,” we will modify the judgment to delete this finding.
See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 4.01, sec. 3g, 1993
Tex. Gen. Laws 3716, 3718 (current version at T EX. C ODE C RIM. P ROC. A NN. art.
42.12, § 3g (Vernon Supp. 2007)) (adding murder as a 3g offense). For the
reasons set forth below, we will affirm the judgment as modified.
II. A LLEGED INEFFECTIVE A SSISTANCE IN P RIOR H ABEAS
In a single point, Glass argues that his habeas counsel [a different lawyer
than the one representing him in the murder case] was ineffective by failing to
pursue a subsequent 11.072 writ of habeas corpus concerning a prior 1947
conviction for burglary of a house because that conviction prevented Glass from
being probation-eligible for the murder at issue here. Glass raised this issue in
the trial court by arguing in a pretrial motion that he should be permitted to file
an affidavit for probation concerning the murder charge and to have the jury
consider probation because his 1947 conviction was unconstitutional in that he
committed the offense when he was sixteen years old and because the State
waited until he was seventeen to indict him.
The trial court allowed Glass to put on evidence in support of this pretrial
motion. Glass introduced the testimony of his habeas counsel into evidence,
trial.” This court denied Glass’s abatement motion by order on December 17, 2007; therefore, we need not further address his abatement arguments.
2 as well as documentary evidence establishing the following. In February 2005,
Glass filed an “Application For A Writ Of Habeas Corpus Seeking Relief From
Final Felony Conviction Under Code Of Criminal Procedure, Article 11.07,”
which argued that he had been improperly charged as an adult for the 1947
burglary offense because he was only sixteen when the offense was committed
and because the State waited until he was seventeen to indict him. 3 The
district court recommended to the court of criminal appeals that no habeas
relief be granted, and the court of criminal appeals subsequently dismissed
Glass’s 11.07 habeas application on the ground that Glass’s community
supervision had never been revoked.4 Consequently, Glass then filed an article
11.072 writ application. The court of criminal appeals also dismissed Glass’s
11.072 writ application, but in a concurring statement, Justice Johnson
explained that dismissal was required because (1) the trial court, the
prosecutor, and the district clerk’s office had all mistakenly treated Glass’s
11.072 writ as an 11.07 writ; (2) Glass had failed to plead collateral
consequences from the allegedly improper conviction to avoid dismissal on the
grounds that the sentence he was purportedly still on probation for had long
3 … Glass was born on November 12, 1930. 4 … Fifty-eight years had elapsed between Glass’s burglary conviction and the time that he filed his 11.07 application for a writ of habeas corpus; Glass initiated the habeas proceeding after he was indicted for murder.
3 since expired; and (3) Glass’s complaint that he had been sixteen when he
committed the burglary and that the county waited until he was seventeen to
indict him should have been raised on direct appeal from the burglary
conviction. Ex parte Glass, 203 S.W.3d 856, 857 (Tex. Crim. App. 2006)
(dismissing habeas corpus application) (Johnson, J., concurring). Justice
Johnson wrote, “It is to be hoped that, should applicant file another application
under Art. 11.072, the court, the state, and the clerk will respond
appropriately.” Id.
Glass’s habeas counsel testified at the pretrial hearing that in light of
Justice Johnson’s statement, it was his intent to file another article 11.072
writ of habeas corpus but that he had not done so at the time of the pretrial
hearing.
Based on these facts, Glass now argues in his sole point in this appeal
from his murder conviction that his 1947 burglary conviction was
“unconstitutional”—therefore he should have been probation-eligible in the
murder case—and that his habeas counsel’s failure to file a second article
11.072 writ concerning the burglary case offense to make him probation
eligible in the murder case constituted ineffective assistance of counsel. Glass
bases his unconstitutionality argument solely on the United States Constitution.
The law is well established, however, that no right exists under the
4 United States Constitution to assistance of counsel in a habeas proceeding.
See Coleman v. Thompson, 501 U.S. 722, 754, 111 S. Ct. 2546, 2567 (1991)
(“There is no constitutional right to an attorney in state post-conviction
proceedings[;] . . . [c]onsequently, a petitioner cannot claim constitutionally
ineffective assistance of counsel in such proceedings.”); Ex parte Graves, 70
S.W.3d 103, 113 (Tex. Crim. App. 2002) (same); Martinez v. Johnson, 255
F.3d 229, 240–41 (5th Cir. 2001) (same), cert. denied, 534 U.S. 1163
(2002).5 The courts have explained that when a procedural default results from
attorney error with respect to a proceeding in which there is a constitutional
right to counsel, then the State bears the ultimate responsibility for the error (a
new trial is required). See, e.g., Coleman, 501 U.S. at 754, 111 S. Ct. at
2567. But when a procedural default results from attorney error with respect
to a proceeding in which there is no constitutional right to counsel, then the
State bears no responsibility to ensure that the defendant is represented by
competent counsel, and it is the defendant who must bear the burden of any
procedural default error. Id., 111 S. Ct. at 2567. Because there is no right
under the United States Constitution to assistance of counsel in a habeas
proceeding, there is likewise no parallel right to effective assistance of counsel.
Ex parte Graves, 70 S.W.3d at 113. Consequently, Glass’s attempt to
collaterally attack his 1947 burglary conviction on ineffectiveness-of-habeas-
5 … We recognize that a statutory right to assistance of counsel, who must be effective, exists in Texas for defendants sentenced to death. See T EX. C ODE C RIM. P ROC. A NN. art. 11.071, § 2 (Vernon Supp. 2007).
5 counsel grounds through the appeal of the present murder conviction fails.6
See, e.g., Coleman, 501 U.S. at 754, 111 S. Ct. at 2567. We therefore
overrule Glass’s sole point.
III. S ECTION 3 G F INDING
The trial court made a finding in the judgment that Glass had been
“convicted of [an] enumerated offense under article 42.12 section 3g C.C.P.”
The State concedes that at the time Glass committed the murder, in August
1979, murder was not a 3g offense. See Act of May 29, 1993, 73rd Leg.,
R.S., ch. 900, § 4.01, sec. 3g, 1993 Tex. Gen. Laws 3716, 3718 (adding
murder as a 3g offense). Accordingly, we modify the trial court’s judgment to
delete the 3g finding. See T EX. R. A PP. P. 43.2(b).
IV. C ONCLUSION
Having modified the trial court’s judgment to delete the 3g finding and
having overruled Glass’s sole point, we affirm the trial court’s judgment as
modified. See id.
SUE WALKER JUSTICE
PANEL F: LIVINGSTON, DAUPHINOT, and WALKER, JJ.
DO NOT PUBLISH T EX. R. A PP. P. 47.2(b)
6 … Glass does not argue that any right to counsel in habeas proceedings exists under any provision of the Texas constitution. Cf. Grinols v. State, 74 P.3d 889, 895 n.47 (Alaska 2003) (recognizing due process right to effective assistance of counsel in habeas proceeding under state constitution).
6 DELIVERED: May 8, 2008