IN THE
TENTH COURT OF APPEALS
No. 10-11-00217-CR
EX PARTE ESTEBAN REYNA
From the County Court
Navarro County, Texas
Trial Court No. 35561
ABATEMENT ORDER
This is an appeal of the trial court’s denial of Esteban Reyna’s application for writ
of habeas corpus. Reyna’s application asserts that in 2010 he was charged with a felony
DWI based on two prior DWI convictions, including the underlying 1990 misdemeanor
conviction that is the subject of his habeas application. The gist of Reyna’s request for
habeas relief in the form of setting aside this 1990 conviction is that his guilty plea was
involuntary.
In originally denying Reyna habeas corpus relief, the trial court issued findings
of fact and conclusions of law. One of the conclusions of law is: “Too much time has
elapsed between the misdemeanor conviction and the filing of the Application for
Habeas Corpus and the same should be denied on this basis.”
Reyna’s fifth issue contests the trial court’s laches conclusion—that “too much
time has elapsed” between Reyna’s misdemeanor conviction and the filing of his habeas
application. The guilty plea at issue occurred on December 21, 1990, and Reyna’s
application for writ of habeas corpus was filed a little over twenty years later, on March
30, 2011.
The Court of Criminal Appeals recently modified “the parameters of the
equitable doctrine of laches as it applies to bar a long-delayed application for a writ of
habeas corpus.” Ex parte Perez, 398 S.W.3d 206, 208 (Tex. Crim. App. 2013).
Recognizing that our current approach to laches in the habeas
corpus context has imposed an unreasonably heavy burden upon the
State, we now adopt a revised approach that is consistent with the Texas
common-law definition of that doctrine. In doing so, we expand the
definition of prejudice under the existing laches standard to incorporate
all forms of prejudice so that a court may consider the totality of the
circumstances in deciding whether to hold an application barred by
laches. Our revised approach is motivated by our recognition that the
current laches standard is too rigid and, as a result, some applicants have
been permitted to seek post-conviction relief despite excessive and
unjustified delays that have prejudiced the State’s ability to defend long-
standing convictions. This approach has failed to account for the State’s
interest in finality and is incompatible with fundamental principles of
fairness and equity, which must underlie any grant of habeas corpus
relief.
Id.
Before Perez, the State had the burden of (1) making a particularized showing of
prejudice to its ability to respond to the allegations in the application, (2) showing that
the prejudice was caused by the applicant having filed a late petition, and (3) showing
that the applicant has not acted with reasonable diligence as a matter of law. See Ex
parte Wolf, 296 S.W.3d 160, 167 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d) (citing
Ex parte Reyna Page 2
Ex parte Carrio, 992 S.W.2d 486, 488 (Tex. Crim. App. 1999)). In Perez, the Court of
Criminal Appeals described the State’s burden under prior law as “unreasonably
heavy” and “impossibly high.” 398 S.W.3d at 208, 214. In this case, the State did not
submit evidence on laches.
Under Perez, (1) the State is not required to make a “particularized showing of
prejudice” so that courts may more broadly consider material prejudice resulting from
delay, and (2) the definition of prejudice is expanded to permit consideration of
anything that places the State in a less favorable position, including prejudice to the
State’s ability to retry a defendant, so that a court may consider the totality of the
circumstances in deciding whether to grant equitable relief. Id. at 215. This approach
permits “courts to more broadly consider the diminished memories of trial participants
and the diminished availability of the State’s evidence, both of which may often be said
to occur beyond five years after a conviction becomes final.” Id. at 216.
It “may be proper to consider, among all relevant circumstances, factors such as
the length of the applicant’s delay in filing the application, the reasons for the delay,
and the degree and type of prejudice resulting from the delay.” Id. at 217. “In
considering whether prejudice has been shown, a court may draw reasonable inferences
from the circumstantial evidence to determine whether excessive delay has likely
compromised the reliability of a retrial. … If prejudice to the State is shown, a court
must then weigh that prejudice against any equitable considerations that militate in
favor of granting habeas relief.” Id.
Ex parte Reyna Page 3
With respect to the degree of proof required, the extent of the
prejudice the State must show bears an inverse relationship to the length
of the applicant’s delay. This “sliding scale” approach is analogous to the
flexible burden of proof applicable to speedy-trial claims. … Here,
similarly, the longer an applicant delays filing his application, and
particularly when an applicant delays filing for much more than five years
after conclusion of direct appeals, the less evidence the State must put
forth in order to demonstrate prejudice. The rationale for this sliding-
scale approach is based on the common-sense understanding that the
longer a case has been delayed, the more likely it is that the reliability of a
retrial has been compromised.
Id. at 217-18.
The Court of Criminal Appeals would not identify a precise period of time after
which laches necessarily applies, but it recognized that “delays of more than five years
may generally be considered unreasonable in the absence of any justification for the
delay.” Id. at 216 n.12.
In Perez, the Court of Criminal Appeals remanded the case to the trial court so
that the parties could be afforded the opportunity to produce additional evidence in
light of the revised approach to the doctrine of laches. Id. at 219. Therefore, we abate
this appeal again and remand this case to the trial court for an evidentiary hearing on
the issue of laches and for the trial court to issue additional findings of fact and
conclusions of law.
The evidentiary hearing shall be conducted within 21 days of the date of this
order. The supplemental clerk’s record containing the additional findings of fact and
conclusions of law and the supplemental reporter’s record are ordered to be filed within
35 days of the date of this order.
Ex parte Reyna Page 4
Within 20 days of the filing of the supplemental record, either party may file a
supplemental brief on the issue of laches. Any brief in response shall be filed within 10
days of the filing of the brief being responded to. Absent extraordinary circumstances,
no motions for extension of time to file a supplemental brief will be entertained.
PER CURIAM
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Abated
Order issued and filed September 19, 2013
Do not publish
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