                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-111-CR


LAWRENCE B. GLASS                                                   APPELLANT

                                              V.

THE STATE OF TEXAS                                                       STATE

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     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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                                   I. INTRODUCTION

      Appellant Lawrence B. Glass pleaded guilty to the offense of murder, and

the trial court sentenced him to fifteen years’ confinement.     The trial court

certified that Glass had the right to appeal, and this appeal followed. 2 Because

      1
          … See T EX. R. A PP. P. 47.4.
      2
        … Concurrently with his appellate brief, Glass filed a “Motion To Abate
Appeal,” requesting that the appeal be abated for an evidentiary hearing to
allow him to develop “testimony that goes to the heart of the attorney/client
relationship and the status of the appellant as an informed client at the time of
the State concedes that the trial court erred by making a finding that the

murder was a “3g offense,” we will modify the judgment to delete this finding.

See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 4.01, sec. 3g, 1993

Tex. Gen. Laws 3716, 3718 (current version at T EX. C ODE C RIM. P ROC. A NN. art.

42.12, § 3g (Vernon Supp. 2007)) (adding murder as a 3g offense). For the

reasons set forth below, we will affirm the judgment as modified.

              II. A LLEGED INEFFECTIVE A SSISTANCE IN P RIOR H ABEAS

      In a single point, Glass argues that his habeas counsel [a different lawyer

than the one representing him in the murder case] was ineffective by failing to

pursue a subsequent 11.072 writ of habeas corpus concerning a prior 1947

conviction for burglary of a house because that conviction prevented Glass from

being probation-eligible for the murder at issue here. Glass raised this issue in

the trial court by arguing in a pretrial motion that he should be permitted to file

an affidavit for probation concerning the murder charge and to have the jury

consider probation because his 1947 conviction was unconstitutional in that he

committed the offense when he was sixteen years old and because the State

waited until he was seventeen to indict him.

      The trial court allowed Glass to put on evidence in support of this pretrial

motion. Glass introduced the testimony of his habeas counsel into evidence,


trial.” This court denied Glass’s abatement motion by order on December 17,
2007; therefore, we need not further address his abatement arguments.

                                        2
as well as documentary evidence establishing the following. In February 2005,

Glass filed an “Application For A Writ Of Habeas Corpus Seeking Relief From

Final Felony Conviction Under Code Of Criminal Procedure, Article 11.07,”

which argued that he had been improperly charged as an adult for the 1947

burglary offense because he was only sixteen when the offense was committed

and because the State waited until he was seventeen to indict him. 3       The

district court recommended to the court of criminal appeals that no habeas

relief be granted, and the court of criminal appeals subsequently dismissed

Glass’s 11.07 habeas application on the ground that Glass’s community

supervision had never been revoked.4 Consequently, Glass then filed an article

11.072 writ application. The court of criminal appeals also dismissed Glass’s

11.072 writ application, but in a concurring statement, Justice Johnson

explained that dismissal was required because (1) the trial court, the

prosecutor, and the district clerk’s office had all mistakenly treated Glass’s

11.072 writ as an 11.07 writ; (2) Glass had failed to plead collateral

consequences from the allegedly improper conviction to avoid dismissal on the

grounds that the sentence he was purportedly still on probation for had long




      3
          … Glass was born on November 12, 1930.
      4
        … Fifty-eight years had elapsed between Glass’s burglary conviction and
the time that he filed his 11.07 application for a writ of habeas corpus; Glass
initiated the habeas proceeding after he was indicted for murder.

                                      3
since expired; and (3) Glass’s complaint that he had been sixteen when he

committed the burglary and that the county waited until he was seventeen to

indict him should have been raised on direct appeal from the burglary

conviction. Ex parte Glass, 203 S.W.3d 856, 857 (Tex. Crim. App. 2006)

(dismissing habeas corpus application) (Johnson, J., concurring).          Justice

Johnson wrote, “It is to be hoped that, should applicant file another application

under Art. 11.072, the court, the state, and the clerk will respond

appropriately.” Id.

       Glass’s habeas counsel testified at the pretrial hearing that in light of

Justice Johnson’s statement, it was his intent to file another article 11.072

writ of habeas corpus but that he had not done so at the time of the pretrial

hearing.

       Based on these facts, Glass now argues in his sole point in this appeal

from   his   murder   conviction   that   his   1947   burglary   conviction   was

“unconstitutional”—therefore he should have been probation-eligible in the

murder case—and that his habeas counsel’s failure to file a second article

11.072 writ concerning the burglary case offense to make him probation

eligible in the murder case constituted ineffective assistance of counsel. Glass

bases his unconstitutionality argument solely on the United States Constitution.

       The law is well established, however, that no right exists under the



                                          4
United States Constitution to assistance of counsel in a habeas proceeding.

See Coleman v. Thompson, 501 U.S. 722, 754, 111 S. Ct. 2546, 2567 (1991)

(“There is no constitutional right to an attorney in state post-conviction

proceedings[;] . . . [c]onsequently, a petitioner cannot claim constitutionally

ineffective assistance of counsel in such proceedings.”); Ex parte Graves, 70

S.W.3d 103, 113 (Tex. Crim. App. 2002) (same); Martinez v. Johnson, 255

F.3d 229, 240–41 (5th Cir. 2001) (same), cert. denied, 534 U.S. 1163

(2002).5 The courts have explained that when a procedural default results from

attorney error with respect to a proceeding in which there is a constitutional

right to counsel, then the State bears the ultimate responsibility for the error (a

new trial is required). See, e.g., Coleman, 501 U.S. at 754, 111 S. Ct. at

2567. But when a procedural default results from attorney error with respect

to a proceeding in which there is no constitutional right to counsel, then the

State bears no responsibility to ensure that the defendant is represented by

competent counsel, and it is the defendant who must bear the burden of any

procedural default error. Id., 111 S. Ct. at 2567. Because there is no right

under the United States Constitution to assistance of counsel in a habeas

proceeding, there is likewise no parallel right to effective assistance of counsel.

Ex parte Graves, 70 S.W.3d at 113.           Consequently, Glass’s attempt to

collaterally attack his 1947 burglary conviction on ineffectiveness-of-habeas-


      5
       … We recognize that a statutory right to assistance of counsel, who
must be effective, exists in Texas for defendants sentenced to death. See T EX.
C ODE C RIM. P ROC. A NN. art. 11.071, § 2 (Vernon Supp. 2007).

                                        5
counsel grounds through the appeal of the present murder conviction fails.6

See, e.g., Coleman, 501 U.S. at 754, 111 S. Ct. at 2567.           We therefore

overrule Glass’s sole point.

                               III. S ECTION 3 G F INDING

      The trial court made a finding in the judgment that Glass had been

“convicted of [an] enumerated offense under article 42.12 section 3g C.C.P.”

The State concedes that at the time Glass committed the murder, in August

1979, murder was not a 3g offense. See Act of May 29, 1993, 73rd Leg.,

R.S., ch. 900, § 4.01, sec. 3g, 1993 Tex. Gen. Laws 3716, 3718 (adding

murder as a 3g offense). Accordingly, we modify the trial court’s judgment to

delete the 3g finding. See T EX. R. A PP. P. 43.2(b).

                                  IV. C ONCLUSION

      Having modified the trial court’s judgment to delete the 3g finding and

having overruled Glass’s sole point, we affirm the trial court’s judgment as

modified. See id.


                                                      SUE WALKER
                                                      JUSTICE

PANEL F:     LIVINGSTON, DAUPHINOT, and WALKER, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)


      6
       … Glass does not argue that any right to counsel in habeas proceedings
exists under any provision of the Texas constitution. Cf. Grinols v. State, 74
P.3d 889, 895 n.47 (Alaska 2003) (recognizing due process right to effective
assistance of counsel in habeas proceeding under state constitution).

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DELIVERED: May 8, 2008




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