P ETITION FOR D ISCRETIONARY R EVIEW OF N OS . 01-13-00640-CR; 01-13-00641-CR 1

I N T HE C OURT OF C RIMINAL A PPEALS

D USTIN W

AYNE G LENN Appellant

v .
THE S TATE OF T EXAS Appellee
On Appeal from Cause Numbers 12CR2237 & 12CR2238 From the 405 th District Court of Galveston County, Texas

P ETITION FOR D ISCRETIONARY R EVIEW

A PRIL 29, 2015

D AVID S UHLER

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 closel y related to another PDR filed for Cause Nos. 01-14-00042-CR & 04-14-00195-CR, fil ed on the same day.2 I DENTITY OF P ARTIES AND C OUNSEL APPELLANT Mr. Dustin Wayne Glenn PROSECUTOR AT MOTION Taniya Henderson TO ADJUDICATE AND 600 59 th 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 405 th Judicial District Galveston County, Texas3 T ABLE OF C ONTENTS

I DENTITY OF P ARTIES AND C OUNSEL
.................................................. ................................ 2 T ABLE OF C ONTENTS
.................................................. ................................................... ........ 3 I NDEX OF A UTHORITIES
.................................................. ................................................... ... 4 S TATEMENT R EGARDING O RAL A RGUMENT
.................................................. .................... 6 S TATEMENT OF THE C ASE
.................................................. ................................................... 6 S TATEMENT OF P ROCEDURAL H ISTORY
.................................................. ............................ 6 G ROUNDS FOR R EVIEW
................................................... ................................................... .... 7 S TATEMENT OF F ACTS
.................................................. ................................................... ....... 7 S UMMARY OF THE A RGUMENT
.................................................. ............................................ 9 A RGUMENT
.................................................. ................................................... ....................... 10 G ROUND O NE .................................................. .............................................. 10 I S ERROR PRESERVED FOR THE LACK OF A PUNISHMENT HEAR ING WHEN MITIGATION EVIDENCE IS PRESENTED AT THE MOTION FOR NEW TRIAL HEARING ? .................................................
................................................... ... 10 G ROUND T WO .................................................. .............................................. 13 H AS THE FIRST COURT OF APPEALS DENIED THE RIGHT FOR IMPARTIAL APPELLATE REVIEW BY CLAIMING PREJUDICE CANNOT BE SH OWN WHEN THE SAME JUDGE THAT ISSUED A SENTENCE RULES ON THE MOTI ON FOR NEW TRIAL ? .................................................
................................................... ........ 13 P RAYER FOR R ELIEF
.................................................. ................................................... ........ 16 A PPENDIX

.................................................. ................................................... ......................... 174 I NDEX OF A

UTHORITIES 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.Ap p.—Houston [1 st 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 [1 st 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 (2 003) ...................... 155

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., 3 rd Ed. (October 2005) .............. 156 S TATEMENT R EGARDING O RAL A RGUMENT Oral argument is not requested.

S TATEMENT OF THE C ASE Appellant, Mr. Dustin Glenn, gave a nolo contender e 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 mot ions 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 s entenced 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 cour t held a hearing. (M.A.J. C.R. 12CR2237 at 44; 12CR2238 at 48). The motion fo r new trial was denied. (M.A.J. C.R. 12CR2237 at 48.)

S TATEMENT OF P ROCEDURAL H ISTORY 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 c over sheet, gives details about this plea questioning it.7 G ROUNDS FOR R EVIEW G ROUND O NE I S ERROR PRESERVED FOR THE LACK OF A PUNISHMENT HEAR ING WHEN MITIGATION EVIDENCE IS PRESENTED AT THE MOTION FOR NEW TRIAL HEARING ?
G ROUND T WO
H AS THE FIRST COURT OF APPEALS DENIED THE RIGHT FOR IMPARTIAL APPELLATE REVIEW BY CLAIMING PREJUDICE CA NNOT BE SHOWN WHEN THE SAME JUDGE THAT ISSUED A SENTENCE RU LES ON THE MOTION FOR NEW TRIAL ?

S TATEMENT OF F ACTS When Mr. Glenn was adjudicated guilty of his felon y 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 punishme nt 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 adjudic ation hearing, but was denied the opportunity to do so. (M.A.J. R.R. at 83-87) (Mr. G lenn’s mother was disallowed from testifying to extensive mental health issues). He a ttempted 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 issu es that he was forced to present only through his own testimony at the motio n for new trial hearing. His testimony included evidence of his mother using cra ck while pregnant with him.8

(M.N.T. R.R. at 67). He attended alternative learni ng school. (M.N.T. R.R. at 60). He has been diagnosed with at least ADHD, bipolar, dys lexia, depression, and oppositional disruptive disorder. (M.N.T. R.R. at 6 5-66). He has been hospitalized in a mental institution. (M.N.T. R.R. at 67). Even in th e motion for new trial hearing, Mr. Glenn blurted out irrelevant statements. (M.N.T. R. R. at 59 3 ). The court denied much of his punishment mitigation evidence on multiple o ccasions 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 S UMMARY OF THE A RGUMENT Mr. Glenn had specific punishment mitigation evide nce that he wanted to present to the court, and rightfully articulated th at 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 sho uld be used to determine preservation of error. Mr. Glenn was never given th e opportunity to present his evidence and was entitled to have a separate punish ment 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 rem and this case for adequate appellate review on whether Mr. Glenn was entitled to a punis hment hearing, as error was preserved. Defendants are entitled to a fair and impartial ap pellate 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 se ntencing and over a motion for new trial, prejudice cannot be shown for the ground s in the motion for new trial.
Glenn v. State , No. 01-13-00640-CR, 01-13-00641-CR, 11-12 (Tex.Ap p.—Houston [1 st Dist.] 2015). This eliminates any chance for reason able appellate review of these claims. This court should remand this case to affor d Mr. Glenn appellate review of his ineffective assistance of counsel claims regarding his mental health evidence issues.10 A RGUMENT G ROUND O NE I S ERROR PRESERVED FOR THE LACK OF A PUNISHMENT HEAR ING 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 me dical history, thereby preserving error for appellate review. “Today we hold that when a trial court finds that a n accused has committed a violation as alleged by the State and a djudicates a previously deferred finding of guilt, the court must then cond uct 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 offer ed.” Glenn v. State , No. 01-13- 00640-CR, 01-13-00641-CR, 18 (Tex.App.—Houston [1 st 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 admitt ed 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 o f 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 si nce the paper motion for new trial did not state the specific evidence the defen se 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 spec ific 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 spe cific 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 cas e for a proper appellate analysis of this issue as error was preserved. The cases cited by the first court of appeals for t his issue do not actually support their claims. The first case ruled error wa s not preserved because the defendant was allowed a full hearing related to pun ishment before the adjudication of his guilt and he never articulated additional evide nce, 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 adjud ication 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 defenda nt was given a full opportunity to present punishment mitigation evidence before sente ncing, and never articulated any12

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 ad ditional punishment mitigation evidence he desired to present at the mo tion 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 opportun ity 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. Gl enn’s mother was disallowed from testifying to extensive mental health issues). Fina lly, 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 def endant is entitled to offer evidence in mitigation of punishment if such evidence has not already been elicited duri ng 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 th e ruling, however, the standard from Issa would still not be that a separate punishment hear ing shall be afforded to the defendant only if NO punishment evidence is pre sented. The standard is if the specific evidence articulated to be presented was a fforded 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 c ourt as desired to be presented, but were denied and never given an opportunity to b e presented.13 G ROUND T WO H AS THE FIRST COURT OF APPEALS DENIED THE RIGHT FOR IMPARTIAL APPELLATE REVIEW BY CLAIMING PREJUDICE CA NNOT BE SHOWN WHEN THE SAME JUDGE THAT ISSUED A SENTENCE RU LES ON THE MOTION FOR NEW TRIAL ? The first court of appeals has ruled in multiple c ases 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 i mpartial appellate review is denied.
See Tex. Cod. Crim. Proc. Sec. 44.02. Defendants have a right to appeal their conviction s. Tex. Cod. Crim. Proc. Sec. 44.02. In this case, the first court of appeals rea soning allows trial judges to cut off the appellate review process for any ineffective assist ance 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 motion s for new trial. It will be shown that their opinion on punishment will not be affect ed 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 appel late 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. Ap p.—Houston [14th Dist.]14

Apr. 19, 2012, no pet.) (mem. op., not designated f or publication); Arriaga v. State , 335 S.W.3d 331, 337 (Tex. App.—Houston [14th Dist.] 201 0, pet. ref’d). This reasoning should not stand, and this court ne eds to address this issue. The ruling that prejudice cannot be shown merely becaus e the same judge presided over both proceedings is wrong. This court should provid e 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 g uilt hearing because his mental health history evidence was not presented. “[A] fai lure to uncover and present mitigating evidence cannot be justified when counse l 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 th e defendant is mentally challenged. “As the United States Supreme Court sta ted 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 unwarra nted impression of lack of15

remorse for their crimes.’” Lopez v. State , --- S.W.3d ----, 14-15 (Tex.App.—Houston [1 st Dist.] 2015). Mental health issues should make cou nsel aware that further investigation was needed to uncover mitigating evid ence. Wiggins v. Smith , 539 U.S. 510, 527–28, 123 S. Ct. 2527, 2541–42 (2003). Mr. G lenn’s counsel owed him his right to effective counsel of the mentally challenged, an d at the least, he deserves appellate
review of his claim. The presumption that a judge would possibly not con sider mental health mitigation evidence in his punishment sentence is p oor policy as well. Incarceration is particularly harmful to people wit h mental illness: Jails can be very damaging to the stability, mental healt h, and physical health of individuals with mental illness. Numerous studie s show that placing mentally ill persons in single cells, isolation, or “lock down” can worsen their schizophrenia, depression, and anxiety. Menta lly 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 su icide. They generally get inadequate, if any, medication and treatment while in jail. Mental Illness, Your Client and the Criminal Law: A Handbook for At torneys Who Represent Persons With Mental Illness , Texas Appleseed, et. al., 3 rd 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. T his court should remand this case to correct this reasoning.16 P RAYER FOR R ELIEF 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 den ies impartial appellate review. Respectfully submitted,
**David Suhler**

_______________ D AVID S UHLER Attorney for Appellant State Bar No. 19465900 P.O. Box 540744 Houston, Texas 77254-0744 713-522-1220

C ERTIFICATE OF S ERVICE AND C OMPLIANCE I hereby certify that a copy of Appellant’s Brief w as electronically emailed to the Appellate Division of the Galveston County Dist rict 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 wo rds. **David Suhler___________________**17 

## A PPENDIXOpinion 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 Ca se Nos. 12CR2237, 12CR2238

MEMORANDUM OPINION After appellant, Dustin Wayne Glenn, with agreed punishment recommendations from the State, pleaded guilty to two separate offenses of2 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 r eceived 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 enr oll 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 T EX
. P ENAL C ODE A NN
. § 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. I n 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 do mestic 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 com munity 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 fail ed 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 commu nity 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 c ounsel 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 sup ervision 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 r esponsibility 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, inclu ding “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, whi ch 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 foll owing 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 tria l, 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 assista nce 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 a ppellant presented his ineffective assistance of counsel claim to the trial court in motion s for new trial and received a hearing on his motion s, w e6 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 f avorable to the trial court ’ s ruling s 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 decision s w ere 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 be tween 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 ma y 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 ultimate7 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 couns el ’ 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 probabi lity 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, indulg ing 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 establish ing 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 to8 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 i nvestigation supporting counsel’ s decision not to introduce mitigating evidence was reasonable. W iggins 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 determinin g 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 d ecision. 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 , 4339 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. Ba zan 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 outc ome 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 , 5 62 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 defi cient 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 t otal deference to a trial court’ s findings of historical fact s 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 same10 judge that presided over the trial, we presume that the ju dge 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 pro ng 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] f ather “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 sentenci ng.” 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); A rriaga
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 have12 concluded new testimony alleged in motion for new trial would not have influenced its puni shment 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 determi ned 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 adjudic ation 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 cou rt 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 co urt must uphold the tr ial 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 defendan t may offer anything that “the court deems relevant to sentencing.” T EX
. C ODE C RIM
. P ROC
. A NN . 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, an14 opinion regarding his character, [and] the circumstances of the offense for which he is being tried.” T EX
. C ODE C RIM
. P ROC
. A NN
. 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 c onsists 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 sa tisfy 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 (admissibilit y 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 “evide nce may be15 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 counse l 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 th at 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 tha t he currently16 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 hea lth 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 as saults. 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 adm ission 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 punis hment hearing after adjudicating his guilt.” The Texas Code of Criminal Procedure provides that “[i]f community supervisio n is revoked after a hearing . . . , the judge may proceed to dispose of the case as if there had been no community supervision.” T EX
. C ODE C RIM
. P ROC
. A NN
. art. 42.12, § 23 (a) (Vernon Supp. 201 4 ). 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 T EX
. C ODE C RIM
. P ROC
. A NN
. 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.3d18 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. T EX
. R. A PP
. P. 33.1. And, i n order to successfully complain on appeal about the deni al 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 ne w 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 t he 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 [14th19 Dist.] 1998, pet. granted) (“[A]ppellant’s motion for new trial only compla ined 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 durin g separate punishment hearings, we hold that he has not preserved this issue for our review. See T EX
. R. A PP . P. 33.1. We overrule appellant’s second issue. Ineffective Assistance of Counsel During Misdemeanor Proceedings In his third issue, appellant ar gues 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 crimina l

- 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 hearing s .20 In order for th is Court to review appellant’s challenge to his convictions for the misdemeanor offenses of crimina l trespass and resisting arrest on direct appeal , appellant was required to file n otice s of appeal of the convictions within thirty days after the sentence s were imposed on January 24, 2013. See T EX
. R. A PP
. 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 reve rsed 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 a lso 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 an ger 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

c onditions 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 [1st21 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. T EX
. R. A PP
. P. 47.2( b).

4 In his fourth issue, appellant contends that t he 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 cour t’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 [1 st Dist.] Feb. 26, 2015, no pet. h.) (mem. op.).