PETITION FOR DISCRETIONARY REVIEW

OF

NOS. 01-13-00640-CR; 

01-13-00641-CR1

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 

PETITION FOR DISCRETIONARY REVIEW

APRIL 29, 2015 

DAVID SUHLER

P.O. Box 540744 

Houston, Texas 77254-0744 

(713) 522-1220 

drsuhler@davidsuhler.xohost.com 

Bar Card No. 19465900 

Attorney for Appellant 

 

1

 This PDR involves the same defendant and is closely related to another PDR filed 

for Cause Nos. 01-14-00042-CR & 04-14-00195-CR, filed on the same day. 
2 

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 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 

 

 
3 

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 ............................................................................................................ 7 

SUMMARY OF THE ARGUMENT .............................................................................................. 9 

ARGUMENT ............................................................................................................................ 10 

GROUND ONE ................................................................................................ 10

IS ERROR PRESERVED FOR THE LACK OF A PUNISHMENT HEARING WHEN 

MITIGATION EVIDENCE IS PRESENTED AT THE MOTION FOR NEW TRIAL 

HEARING? ....................................................................................................... 10

GROUND TWO ................................................................................................ 13

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? ............................................................................................................ 13

PRAYER FOR RELIEF ............................................................................................................. 16 

APPENDIX .............................................................................................................................. 17 
4 

INDEX OF AUTHORITIES

Cases

Arriaga v. State, 335 S.W.3d 331, 337 (Tex. App.—Houston [14th Dist.] 2010, pet. 

ref’d) ................................................................................................................................... 14 

Atkins v. Virginia, 536 U.S. 304, 320-21, 122 S. Ct. 2242, 2252 (2002) .......................... 14 

Glenn v. State, No. 01-13-00640-CR, 01-13-00641-CR, 11-12 (Tex.App.—Houston [1st

Dist.] 2015) ....................................................................................................... 9, 10, 13, 14 

Goody v. State, 433 S.W.3d 74, 81 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) . 13, 

14 

Hardeman v. State, 981 S.W.2d 773, 775 (Tex. App.—Houston [14th Dist.] 1998, pet. 

granted) .............................................................................................................................. 12 

Issa v. State, 826 S.W.2d 159, 161 (Tex.Crim.App. 1992) ............................................. 9, 10 

Lopez v. State, --- S.W.3d ----, 14-15 (Tex.App.—Houston [1st Dist.] 2015) .................. 15 

Lopez v. State, 96 S.W.3d 406, 415-16 (Tex. App.—Austin 2002, pet. ref’d) ................. 11 

Potts v. State, No. 14-10-01172-CR, 2012 WL 1380230, at *1 (Tex. App.—Houston 

[14th Dist.] Apr. 19, 2012, no pet.) ................................................................................ 14 

Salinas v. State, 980 S.W.2d 520, 521 (Tex. App.—Houston [14th Dist.] 1998, pet. 

ref’d) ................................................................................................................................... 11 

Shanklin v. State, 190 S.W.3d 154, 164 (Tex. App.—Houston [1st Dist.] 2005, pet. 

dism’d) ................................................................................................................................ 14 

Wiggins v. Smith, 539 U.S. 510, 527–28, 123 S. Ct. 2527, 2541–42 (2003) ...................... 15 
5 

Statutes

Tex. Cod. Crim. Proc. Sec. 44.02 .................................................................................... 9, 13 

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) .............. 15 

 
6 

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.2 (M.A.J. State’s Exhibits 3 & 4; M.N.T. R.R. at 17;

C.R. 12CR2237 & 12CR2238 at 8). The State filed motions to adjudicate that same 

afternoon. (C.R. 12CR2237 at 16). 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 and the court held a hearing. (M.A.J. 

C.R. 12CR2237 at 44; 12CR2238 at 48). The motion for new trial was denied. (M.A.J. 

C.R. 12CR2237 at 48.) 

STATEMENT OF PROCEDURAL HISTORY

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). No motion for rehearing was filed. Mr. Glenn 

now files this petition for discretionary review. 

 

2

 The related PDR to this case, referred to on the cover sheet, gives details about this 

plea questioning it. 
7 

GROUNDS FOR REVIEW

GROUND ONE

IS ERROR PRESERVED FOR THE LACK OF A PUNISHMENT HEARING 

WHEN MITIGATION EVIDENCE IS PRESENTED AT THE MOTION FOR 

NEW TRIAL HEARING? 

GROUND TWO

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? 

 STATEMENT OF FACTS

 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 

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 has a long history of mental health issues that he was forced to 

present only through his own testimony at the motion for new trial hearing. His 

testimony included evidence of his mother using crack while pregnant with him. 
8 

(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. (M.N.T. R.R. at 593). 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). 

 

 

3

 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

 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 

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. 

 
10 

ARGUMENT

GROUND ONE

IS ERROR 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 

trial, he offered into evidence hundreds of pages of his medical records.” Glenn, No. 

01-13-00640-CR, 01-13-00641-CR at 11. 
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. 

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 
12 

additional evidence. Hardeman v. State, 981 S.W.2d 773, 775 (Tex. App.—Houston 

[14th Dist.] 1998, pet. granted).4

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. 

This court should find that error was preserved and remand this case to allow 

Mr. Glenn his rightful separate punishment hearing. 

 

4

 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.
13 

GROUND TWO

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. 

 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.] 
14 

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 

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 
15 

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. 
16 

PRAYER FOR RELIEF

 For the foregoing reasons, 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 ask this court for instructions that the first court of appeals’ 

reasoning on the prejudice issue is wrong as it denies 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 29th 

day of April, 2015. This petition for discretionary review complies with Texas Rule of 

Appellate Procedure 9.4(i)(3) and contains 3,082 words. 

 David Suhler___________________ 

 
17 

APPENDIX
Opinion issued February 26, 2015 

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-13-00640-CR

NO. 01-13-00641-CR

———————————

DUSTIN WAYNE GLENN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 405th District Court

Galveston County, Texas

Trial Court Case Nos. 12CR2237, 12CR2238

MEMORANDUM OPINION

After appellant, Dustin Wayne Glenn, with agreed punishment 

recommendations from the State, pleaded guilty to two separate offenses of 
2

aggravated assault with a deadly weapon,1 the trial court deferred adjudication of 

his guilt and placed him on community supervision for five years. The State, 

alleging several violations of the conditions of his community supervision, 

subsequently moved to adjudicate appellant’s guilt on both offenses. After a 

hearing, the trial court found appellant guilty and assessed his punishment at 

confinement for twelve years for each offense, with the sentences to run 

concurrently. In five issues, appellant contends that he received ineffective 

assistance of counsel and the trial court erred in excluding relevant punishment 

evidence and not conducting a separate punishment hearing after the adjudication 

of his guilt.

We affirm.

Background

In its motions to adjudicate appellant’s guilt, in regard to the first offense,2

the State alleged that he violated the conditions of his community supervision by 

committing the misdemeanor offenses of criminal trespass and resisting arrest, 

failing to perform community service, failing to enroll in a domestic violence 

and/or anger control program, failing to reimburse Galveston County for the 

attorney’s fees of his court appointed counsel, and failing to pay a community 

 1 See TEX. PENAL CODE ANN. § 22.02 (Vernon 2011).

2 Appellate cause number 01-13-00640-CR; trial court cause number 12CR2237.
3

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.
4

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].”
5

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 
6

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 
7

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 
8

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 
9

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 
10

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.”
11

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 
12

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.
13

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 
14

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 
15

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 
16

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.
17

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 
18

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 
19

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.
20

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 
21

Dist.] 2006, pet. ref’d). Here, appellant has not challenged any of the other 

grounds supporting the trial court’s adjudication of his guilt of the instant offense. 

We overrule appellant’s third issue.

Conclusion

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

Terry Jennings

Justice 

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

Do not publish. TEX. R. APP. P. 47.2(b).

 4 In his fourth issue, appellant contends that the Galveston County Court at Law No. 

3 erred in denying the petitions for writs of habeas corpus that he filed there, 

challenging his convictions for the offenses of criminal trespass and resisting 

arrest. Appellant has separately appealed the county court’s denials of his 

applications for writs of habeas corpus, and we address appellant’s challenges in a 

separate opinion. See Glenn v. State, 01-14-00042-CR & 01-14-00195-CR (Tex. 

App.—Houston [1st Dist.] Feb. 26, 2015, no pet. h.) (mem. op.).