Glenn, Ex Parte Dustin Wayne
PD-0352-15
| Tex. App. | May 4, 2015Background
- Glenn pled nolo contendere to two felonies (aggravated assault with a deadly weapon) and the trial court deferred adjudication, placing him on five years’ community supervision.
- While on supervision, Glenn pled guilty to two misdemeanors (criminal trespass and resisting arrest) and counsel allegedly advised he could go home if he pled guilty; no separate punishment hearing followed.
- The State later moved to adjudicate guilt on the felonies, and Glenn was adjudicated guilty and sentenced to twelve years for each offense (concurrent).
- Glenn filed writs of habeas corpus regarding the misdemeanors, arguing involuntary pleas due to ineffective assistance of counsel and seeking relief from the misdemeanor convictions.
- Glenn also challenged the adjudications on grounds of ineffective assistance and sought a separate punishment hearing and admissibility of mitigation evidence; the First Court of Appeals affirmed, prompting this discretionary-review petition.
- The petition centers on three main rounds of arguments: (1) plea based on wrong advice and prejudice, (2) lack of a punishment hearing when mitigation evidence existed, (3) prejudice from a same-judge rule limiting appellate review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Plea based on counsel’s wrong advice prejudiced outcome | Glenn shows prejudice; but-for counsel’s bad advice, he would have insisted on trial | State argues standard applied by appeals is correct or that no prejudice proven | Prejudice shown; remand for proper Strickland analysis and appellate review |
| Error preserved for lack of punishment hearing when mitigation evidence presented | Glenn preserved by presenting punishment-mitigation evidence at motion for new trial | Trial court properly denied separate punishment hearing because no timely objection/Evidentiary basis | Error preserved; remand for a separate punishment hearing to consider mitigation evidence |
| Impartial appellate review denied when same judge presided over sentencing and motion for new trial | Same-judge prejudice rule wrongly forecloses impartial appellate review; requires remand | Rule applied by first court of appeals prevents prejudice finding | Remand to allow proper appellate analysis of ineffective-assistance claims and prejudice under proper standard |
Key Cases Cited
- Andrews v. State, 159 S.W.3d 98 (Tex.Crim.App. 2005) (prejudice prong; standard for ineffectiveness applies to pleas)
- Lopez v. State, 343 S.W.3d 137 (Tex.Crim.App. 2011) (mitigation evidence; evaluation of prejudice under Strickland)
- Ex parte Glenn, No. 01-14-00042, 01-14-00195 (Tex.App.—Houston (1st Dist.) 2015) (conflicting prejudice standards in first court of appeals)
- Issa v. State, 826 S.W.2d 159 (Tex.Crim.App. 1992) (punishment hearing after adjudication of guilt; constitutional right to exposure to mitigation evidence)
- Salinas v. State, 980 S.W.2d 520 (Tex.App.—Houston (14th Dist.) 1998) (preservation for punishment evidence in new-trial context)
- Goody v. State, 433 S.W.3d 74 (Tex.App.—Houston (1st Dist.) 2014) (preserves evidence of mitigation; trial court’s evidentiary rulings reviewed for abuse of discretion)
- Shanklin v. State, 190 S.W.3d 154 (Tex.App.—Houston (1st Dist.) 2005) (requirement to uncover/prepare mitigating evidence; ineffective-assistance framework)
- Wiggins v. Smith, 539 U.S. 510 (U.S. 2003) (importance of thorough investigation for mitigation evidence (ineffective assistance))