Opinion issued April 19, 2016
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-15-00250-CR
———————————
EX PARTE JULIO GIALITO ARUIZU, Appellant
On Appeal from the County Criminal Court at Law No. 7
Harris County, Texas
Trial Court Case No. 1943590
MEMORANDUM OPINION
Appellant, Julio Gialito Aruizu, challenges the trial court’s order denying his
application for a writ of habeas corpus.1 In two issues, appellant contends that the
trial court erred in denying his requested relief, which he seeks on the grounds that
1
See TEX. CODE CRIM. PROC. ANN. art. 11.09 (Vernon 2015).
he is actually innocent of the underlying misdemeanor offense of assault on a family
member2 and his trial counsel rendered ineffective assistance.
We affirm the order of the trial court.
Background
On May 4, 2002, Houston Police Department (“HPD”) Officer T. Burks was
dispatched to appellant’s residence “in reference to a possible family disturbance.”
At the scene, the complainant, appellant’s common-law wife, told Burks that
appellant had assaulted her, struck her several times, “grabbed her around the neck
and throat,” “choked her,” and “grabbed her by the hair and pulled it forcefully.”
Burks observed that the complainant had “red marks around her neck and upper chest
area.”
After his arrest, appellant retained trial counsel to represent him in court. On
July 17, 2002, appellant, with an agreed punishment recommendation from the State,
pleaded guilty, and the trial court assessed his punishment at confinement for fifteen
days.
In January 2014, appellant filed his verified application for a writ of habeas
corpus, contending that he entered his guilty plea involuntarily and unknowingly.
He argues that his trial counsel rendered ineffective assistance because he failed to
2
See TEX. PENAL CODE ANN. § 22.01(a), (b) (Vernon 2011); see id. § 1.07(a)(8)
(defining “bodily injury” as “physical pain, illness, or any impairment of physical
condition”).
2
(1) fully investigate defense issues and the facts of the case, including not contacting
witnesses; (2) competently and fully advise appellant of his full range of options and
the consequences of a guilty plea; and (3) assert viable defenses and file motions or
pleadings seeking relief based on any viable defenses. Appellant asserts that he is
innocent and the complainant has, in her affidavit, since recanted her previous
statements and admitted that she “lied” to Officer Burks. Appellant also asserts that
their son, in his affidavit, has “for the first time stated what he heard and saw” during
the May 4, 2002 incident. Finally, appellant asserts that he is “illegally confined
and/or restrained of his liberty by the entry of a final conviction” and is “restrained
of his liberty by virtue of this criminal record.” Appellant attached to his application
his affidavit and those of his wife and son.
In its response to appellant’s application, the State argues that the defense of
laches bars appellant from receiving habeas corpus relief because his unreasonable
delay in pursuing such relief prejudiced the State in making its response. The State
further asserts that appellant did not meet his burden to establish that his plea was
made involuntarily or that he is actually innocent.3 Attached to the State’s response
is the HPD offense report of Officer Burks and the affidavit of appellant’s trial
counsel. In his reply, appellant asserts only that the affidavits attached to his
3
See Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851 (1995); Herrera v. Collins, 506
U.S. 390, 113 S. Ct. 853 (1993).
3
application “fully support[]” his actual-innocence claim and the trial court could
determine the claim and issue findings of fact and conclusions of law based on the
pleadings filed with the court.
No witnesses testified at the hearing on appellant’s application. Rather, the
trial court, without objection, admitted into evidence the State’s response to
appellant’s application. And after he asked the court to take judicial notice of the
affidavits attached to his application, appellant tendered them to the court. The trial
court then indicated that it had reviewed “everything that both sides [had] filed” and
“considered everything that was presented.”
In his affidavit, appellant testified that on May 4, 2002, after he had arrived
home at about 7:00 or 8:00 p.m., the complainant confronted him outside their trailer
home. “[Y]elling” and “very upset,” she accused him of seeing another woman.
Although appellant tried to tell the complainant “to cool down and stop yelling,” she
continued to yell at him for fifteen to twenty minutes before she went back inside
the trailer. Appellant explained that their son “was right inside the trailer front door
in the living area and heard what had just happened.” Appellant “never threatened,
pushed, touched, or hit” the complainant, and he told the police that he “never
threatened, pushed, hit, or touched” her.
4
Appellant further testified that he “was bonded out of jail after the arrest,”
hired trial counsel to represent him, and told trial counsel “what happened that day
and evening, exactly the same facts” as detailed in his affidavit. He explained:
I told [trial counsel] that I never threatened or touched [the
complainant], and that our son . . . heard everything that happened
outside.
[Trial counsel] never discussed with or asked me about trying to
get a statement from either [our son] or [the complainant] about what
happened at the trailer. [Trial counsel] never asked me for any
information on how to contact either [our son] or [the complainant].
[Trial counsel] never told me that he or anyone working with him ever
contacted or tried to contact [our son] or [the complainant] or any other
potential witness. During the entire time of this case before I pleaded
“Guilty,” [our son], [the complainant], and I still lived at the same
trailer. Anyone could have found and talked to [our son] and [the
complainant] at that trailer.
[Trial counsel] never talked to me about any possible defenses
for my case. [Trial counsel] never discussed with me the possible uses
of eyewitnesses such as [our son] or [the complainant]. All [trial
counsel] said about defending the assault charge was that even if [the
complainant] requested to dismiss the case that the prosecutor would
still keep the case. Lastly, [trial counsel] said to me that “[I] had a job,
it was a good judge, and if [I] wanted to defend the case or go to trial
that [I] would be in court many more times, and that [my] boss would
probably get mad and fire [me].” [Trial counsel] did not discuss
anything more about the facts of the case or any possible defenses.
[Trial counsel] never discussed with me any aspects of a potential jury
trial for the facts of my case, nor did he discuss with me any jury trial
strategy or potential success at jury trial. [Trial counsel] never
discussed with me the potential uses and effectiveness of any potential
witness. In sum, [trial counsel] never discussed with me any matters of
a jury trial strategy. The only jury trial advice [trial counsel] discussed
with me was that “if [I] wanted to defend the case or go to trial that [I]
would be in court many more times, and that [my] boss would probably
5
get mad and fire [me].” At that point, I thought that nothing at all could
be done about the case, and I decided to plea[d] “Guilty.”
Had my lawyer investigated the case, explained to me the
potential jury trial strategies and options, and advised me of potential
chances of success (after fully investigating the case) at jury trial, I
would not have pleaded “Guilty,” but instead I would have insisted on
going to jury trial because I was innocent of the criminal charges and I
had an eyewitness who saw and heard what really happened. And
furthermore, the case and jury trial would not have been all that bad for
me because of the lack of any physical evidence or other evidence
supporting [the complainant’s] claim that I pushed her. But I am not a
lawyer, so I do not know how all those things work together in a case
and/or a jury trial. I had no indications from my lawyer that I would
have had a chance of winning at jury trial. That left me thinking I
ultimately had no chance at winning at jury trial. Because I did not
have any knowledge that at a jury trial I would have had a chance at
winning the case, I pleaded “Guilty.” . . .
This is the first time that I know of what [the complainant] has
said that she made up the story about my pushing or hitting her that day,
May 04, 2002. She recently said it in a visit with my lawyer . . . .
In her affidavit, the complainant testified that when appellant came home at
about 7:00 or 8:00 p.m., she confronted him, began screaming and yelling, and was
“very angry and upset with [him] and the situation with the woman.” She explained
that after she went back into the trailer, she called for emergency assistance and
reported that appellant had pushed her during an argument. And she later told the
responding police officer that appellant had pushed her. She further explained that
she “never said to 911 or the police [officer] that [appellant had] threatened [her], or
that [she] felt any kind of pain or had any injury from [him].” Rather:
6
[A]ppellant never threatened, touched, pushed, or hit me. I lied to 911
and the police about [appellant] pushing me. . . . I was so upset at [him]
and did not know what else I could do to him. I wanted to get back at
him. I only said that [appellant] pushed me because I did not know
what else to do to get back at him.
According to the complainant, after May 4, 2002, “no lawyer, police, investigator,
or anyone investigating the incident [had] talked to [her].” She had never had “any
reason or circumstance” to tell anyone that she had lied about appellant pushing her.
And she was “very disappointed and ashamed” about what she had said about
appellant to the police officer.
In his affidavit, appellant’s son, who was approximately fourteen years old at
the time of the incident, testified that on May 4, 2002, he lived with the complainant
and appellant. He recalled that when appellant came home at approximately 7:00 to
8:00 p.m., the complainant immediately went outside and confronted him. Although
appellant’s son heard the complainant screaming and yelling at appellant, appellant
“was not screaming and yelling like” the complainant. And appellant’s son did not
hear any sounds of violence or physical fighting while his parents were outside.
When the complainant came back inside the trailer, he could see that she “was very
angry and upset,” but he “did not see any signs of physical pain, discomfort, or injury
to [her] when she walked into the trailer.” Appellant’s son noted that the responding
police officer did not talk to him that day and “no lawyer, police, investigator, or
anyone investigating the incident [had] talked to [him].” And because he had “never
7
been asked to tell about what happened,” providing his affidavit testimony
constituted “the first time [that he had] said or told anyone about what [he] witnessed
on May 04, 2002.”
In the HPD offense report, dated May 5, 2002, Officer Burks wrote that on
May 4, 2002, he was dispatched to a “trailer park” regarding a possible family
disturbance. Upon his arrival, he spoke with the complainant through a Spanish
interpreter. The complainant stated that after she had received a telephone call from
a woman who claimed to be appellant’s girlfriend, the complainant and appellant
“became involved in a heated verbal argument” and she left their trailer. Appellant
“later came to her friend’s residence and forced her to leave” with him. When the
complainant attempted to get out of the car, appellant “struck her several times[,]
causing her physical pain.” After they returned to their trailer, appellant and the
complainant continued to argue, and he “assaulted her,” “grabbed her around the
neck and throat,” and “choked her,” “causing her physical pain.” He then “grabbed
her” by her “hair and pulled it forcefully,” “causing her physical pain.” Burks further
wrote that he saw that the complainant “had red marks around her neck and upper
chest area.” Burks further noted that the complainant stated that appellant had
assaulted her numerous times during the past twelve years and although “she [had]
never called before because she depended on [appellant] financially,” she did so on
this occasion because “she [was] just tired of the assaults and abuse.”
8
In his affidavit, appellant’s trial counsel responded to issues that the trial court
designated to him. In response to each designated issue, trial counsel stated that he
“[did] not have any present recollection of the case.” He noted that “it has been so
long ago,” he did not “have a defense file to recall such attempts” because he had
“since relocated” his office, and he “no longer kn[e]w where [his] 2002 file may be.”
The trial court denied appellant’s requested habeas corpus relief and signed
the State’s proposed findings of fact and conclusions of law. The trial court found
and concluded, in pertinent part, as follows:
16. [Appellant’s] claim of ineffective assistance of counsel is barred by
the doctrine of laches. Due to the [appellant’s] unreasonable delay
of almost twelve years in pursuing his habeas claims, the State has
been prejudiced in its ability to respond to the [appellant’s] habeas
claims, and therefore the [appellant’s] ineffective assistance claim
is denied.[4]
17. The court finds that the affidavits provided by the defendants, [the
complainant], and [appellant’s son] are not credible and do not rise
to the level of actual innocence under either a Herrera or a Schlup
claim.
18. The [appellant] has failed to prove under Herrera that by clear and
convincing evidence that a jury would acquit him based on
newly-discovered evidence.[5] He has also failed to prove under
Schlup that, in light of newly discovered evidence, the
constitutional error “probably” resulted in a conviction of the one
who was actually innocent.[6]
4
See Ex parte Carrio, 992 S.W.2d 486, 487 (Tex. Crim. App. 1999).
5
Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996).
6
Id.
9
19. In all things, the [appellant] has failed to demonstrate that his
conviction was improperly obtained.
Standard of Review
Generally, an applicant seeking post-conviction habeas corpus relief must
prove his claims by a preponderance of the evidence. Ex parte Richardson, 70
S.W.3d 865, 870 (Tex. Crim. App. 2002). In reviewing a trial court’s decision to
deny habeas corpus relief, we view the facts in the light most favorable to the trial
court’s ruling. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003),
overruled in part on other grounds by Ex parte Lewis, 219 S.W.3d 336 (Tex. Crim.
App. 2007). We afford almost total deference to the court’s findings of fact that are
supported by the record, especially when the trial court’s fact findings are based
upon an evaluation of credibility and demeanor. Ex parte Amezquita, 223 S.W.3d
363, 367 (Tex. Crim. App. 2006) (quoting Ex parte White, 160 S.W.3d 46, 50 (Tex.
Crim. App. 2004)); Ex parte Peterson, 117 S.W.3d at 819. We afford the same level
of deference to the trial court’s rulings on “applications of law to fact questions” if
the resolution of those questions turn on an evaluation of credibility and demeanor.
Ex parte Peterson, 117 S.W.3d at 819. In such instances, we use an abuse-of-
discretion standard. See Ex parte Garcia, 353 S.W.3d 785, 787 (Tex. Crim. App.
2011). However, if the resolution of those ultimate questions turns on an application
of legal standards absent any credibility issue, we review the determination de novo.
See Ex parte Peterson, 117 S.W.3d at 819. We will affirm the trial court’s decision
10
if it is correct on any theory of law applicable to the case. Ex parte Primrose, 950
S.W.2d 775, 778 (Tex. App.—Fort Worth 1997, pet. ref’d).
Actual Innocence
In his first issue, appellant argues that the trial court erred in denying him
habeas corpus relief because he is actually innocent of the offense of assault on a
family member. He asserts that the record supports both his actual-innocence claim
and his innocence claim “coupled with trial counsel’s deficient performance.” See
Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851 (1995); Herrera v. Collins, 506 U.S.
390, 113 S. Ct. 853 (1993).
The Texas Court of Criminal Appeals has explained that a Herrera claim of
actual innocence is “a substantive claim in which the person asserts a ‘bare claim of
innocence’ based solely on newly discovered evidence.” Ex parte Brown, 205
S.W.3d 538, 544 (Tex. Crim. App. 2006) (quoting Ex parte Tuley, 109 S.W.3d 388,
390 (Tex. Crim. App. 2002)). A defendant who pleaded guilty to an offense may
assert, as an applicant for habeas corpus relief, an actual-innocence claim based on
newly discovered evidence. Ex parte Mello, 355 S.W.3d 827, 830–31 (Tex. App.—
Fort Worth 2011, pet. ref’d) (citing Ex parte Brown, 205 S.W.3d at 544). For a
Herrera-type claim, evidence is considered “newly discovered” if it was not known
to the applicant at the time of the trial, plea, or post-trial motions and could not have
been known to him even with the exercise of due diligence. Ex parte Brown, 205
11
S.W.3d at 545. To establish a claim of actual innocence, “an applicant must show
‘by clear and convincing evidence, that despite the evidence of guilt that supports
the conviction, no reasonable juror could have found the applicant guilty in light of
the new evidence.’” Id. (quoting Ex parte Tuley, 109 S.W.3d at 392). “This showing
must overcome the presumption that the conviction is valid and it must
unquestionably establish applicant’s innocence.” Id. In deciding this issue, the trial
court examines the “newly discovered evidence” and determines whether the “new”
evidence, when balanced against the “old” inculpatory evidence, unquestionably
establishes the applicant’s innocence. Ex parte Thompson, 153 S.W.3d 416, 426
(Tex. Crim. App. 2005). The court of criminal appeals has noted that, generally,
“[e]stablishing a bare claim of actual innocence is a Herculean task.” Ex parte
Brown, 205 S.W.3d at 545.
Here, appellant asserts that the three affidavits that he attached to his
application constitute “clear, direct, corroborative, and credible new evidence” that
he did not assault the complainant. However, even assuming that the evidence
presented in the affidavits is new, it does not constitute clear and convincing
evidence that unquestionably establishes appellant’s innocence.
Officer Burks’s narrative in the HPD offense report reflects that after he
arrived at appellant’s residence, the complainant reported to him that appellant
forced her to leave her friend’s residence and “struck her several times.” And the
12
complainant specifically told Burks that appellant had “grabbed her around the neck
and throat,” “choked her,” and “grabbed [her] by her hair and pulled it forcefully.”
Moreover, Burks himself observed “red marks around [complainant’s] neck and
upper chest area.”
Although the complainant, in her affidavit, testified that she had “lied” when
she called for emergency assistance and to the responding police officer, she stated
only that she had “lied’ about appellant having pushed her. And, although she stated
generally that appellant “never threatened, touched, pushed, or hit [her],” she, in her
affidavit, provided less detail than the narrative contained in the HPD offense report.
Moreover, she, in her affidavit, did not address any assault that occurred when
appellant forced her to leave her friend’s residence. Appellant’s son, in his affidavit,
testified that he did not observe the incident between appellant and the complainant
outside the trailer, and he did not hear “any sounds of violence or physical fighting
while [his] parents were outside.” And, when the complainant came back inside the
trailer, he “did not see any signs of physical pain, discomfort, or injury to [her]”
However, none of the affidavit evidence provides any contradiction or explanation
for Officer Burks’s statement in the HPD offense report that he actually saw red
marks on the complainant’s neck and upper chest.
Considering the evidence in the light most favorable to the trial court’s ruling
and deferring to the trial court’s findings of fact and conclusions of law supported
13
by the record, we hold that the evidence supports the trial court’s finding that
appellant failed to prove by clear and convincing evidence his Herrera-type claim
of actual innocence.
Appellant further contends that the record supports his Schlup-type claim of
innocence coupled with his trial counsel’s deficient performance. Appellant asserts
that his “Schlup-type claim is, in essence, a Herrera-type claim coupled with an
independent trial-counsel deficien[cy] claim, without an independent showing of
prejudice.”
As explained by the court of criminal appeals, a Schlup-type claim is “one that
‘does not by itself provide a basis for relief,’ but is intertwined with constitutional
error that renders a person’s conviction constitutionally invalid.” Ex parte Brown,
205 S.W.3d at 544–45 (quoting Schlup, 513 U.S. at 315, 115 S. Ct. at 860); see Ex
parte Villegas, 415 S.W.3d 885, 886 (citing Schlup, 513 U.S. at 314–15, 115 S. Ct.
at 860–61) (“In a Schlup actual-innocence claim, evidence demonstrating innocence
is a prerequisite the applicant must satisfy to have an otherwise barred constitutional
claim considered on the merits.”). In a Schlup-type claim, the applicant “must show
that the constitutional error probably resulted in the conviction of one who was
actually innocent.” Ex parte Spencer, 337 S.W.3d 869, 878 (Tex. Crim. App. 2011).
“Probably resulted” means that an applicant “‘must show that it is more likely than
not that no reasonable juror would have convicted him in light of the new evidence.’”
14
Ex parte Franklin, 72 S.W.3d at 676 (quoting Schlup, 513 U.S. at 327, 115 S. Ct. at
867).
Appellant asserts that his evidence meets Schlup’s “lesser burden of proof” to
establish his innocence, and he relies on his argument made in support of his Herrera
claim. The trial court, however, found that the affidavits upon which appellant relies
“[did] not rise to the level of [establishing] actual innocence under either a Herrera
or a Schlup claim.” And it concluded that he failed to establish that constitutional
error resulted in a conviction of “one who was actually innocent.” Considering the
evidence, as discussed above, in the light most favorable to the trial court’s findings
of fact and conclusions of law supported by the record, we hold that appellant did
not meet his burden to show that it is more likely than not that no reasonable juror
would have convicted him in light of the new evidence.7
7
Schlup-type claims typically arise in cases in which a defendant is procedurally
barred from independently making a claim of constitutional error. See Schlup, 513
U.S. at 316, 115 S. Ct. at 861 (stating if petitioner “presents evidence of innocence
so strong that a court cannot have confidence in the outcome of the trial unless the
court is also satisfied that the trial was free of non-harmless constitutional error, the
petitioner should be allowed to pass through the gateway and argue the merits of his
underlying claims”). Thus, if an applicant establishes his innocence under the
Schlup standard, a court may review a procedurally barred constitutional claim. See
Ex parte Villegas, 415 S.W.3d 885, 886–87 (Tex. Crim. App. 2013); Ex parte Reed,
271 S.W.3d 698, 733–34 (Tex. Crim. App. 2008). Here, appellant does not contend
that his habeas claim is procedurally barred. See Ex parte Villegas, 415 S.W.3d at
887 (concluding Schlup claim improper when applicant’s ineffective assistance of
counsel claims not procedurally barred); Ex parte Skelton, 434 S.W.3d 709, 733–34
(Tex. App.—San Antonio 2014, pet ref’d) (concluding applicant “did not need to
pass through a procedural gateway” to present substantive claim of constitutional
15
We overrule appellant’s first issue.
Laches
In his second issue, appellant argues that the trial court erred in denying his
application for habeas corpus relief because his trial counsel provided him with
ineffective assistance. At the hearing on appellant’s application, the State argued
that the trial court should deny appellant habeas corpus relief based on the doctrine
of laches because appellant’s unreasonable delay in filing the application materially
prejudiced the State in regard to responding to the application. And the trial court
found that the doctrine of laches barred appellant’s claim of ineffective assistance of
counsel: “Due to [appellant’s] unreasonable delay of almost twelve years in
pursuing his habeas claims, the State has been prejudiced in its ability to respond to
[appellant’s] habeas claims, and therefore [appellant’s] ineffective assistance claim
is denied.”
In 2013, the Texas Court of Criminal Appeals adopted “Texas common law,
rather than the federal [laches] standard, to define the parameters” of the defense of
laches in Texas habeas corpus cases:
Consistent with the common-law doctrine of laches, going forward, we
will (1) no longer require the State to make a “particularized showing
of prejudice” so that courts may more broadly consider material
prejudice resulting from delay, and (2) expand the definition of
prejudice under the existing laches doctrine to permit consideration of
error and Schlup claim improper because habeas application was applicant’s first
application).
16
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.
Ex parte Perez, 398 S.W.3d 206, 215 (Tex. Crim. App. 2013) (emphasis added)
(citing Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex. 1998)). The common-law
doctrine of laches is defined as:
neglect to assert [a] right or claim which, taken together with lapse of
time and other circumstances causing prejudice to an adverse party,
operates as a bar in a court of equity. Also, it is the neglect for an
unreasonable and unexplained length of time under circumstances
permitting diligence, to do what in law, should have been done.
Ex parte Carrio, 992 S.W.2d 486, 487 n.2 (Tex. Crim. App. 1999) (quoting BLACK’S
LAW DICTIONARY 875 (6th ed. 1990)). In Texas civil cases, laches is an affirmative
defense that must be pleaded by the party asserting it. See TEX. R. CIV. P. 94. And
“[l]aches is a question of fact that should be determined by considering all of the
circumstances in each particular case.” In re Mabray, 355 S.W.3d 16, 22–23 (Tex.
App.—Houston [1st Dist.] 2010, orig. proceeding [mand. denied]) (citing Tribble &
Stephens Co. v. RGM Constructors, L.P., 154 S.W.3d 639, 669 (Tex. App.—
Houston [14th Dist.] 2004, pet. denied)).
In Ex parte Perez, the court explained that the defense of laches “typically
requires proof by a preponderance of the evidence of two elements: unreasonable
delay by the opposing party and prejudice resulting from the delay.” 398 S.W.3d at
210 n.3 (emphasis added) (citing Caldwell, 975 S.W.2d at 538). Thus, the defense
17
of laches will bar habeas corpus relief “when an applicant’s unreasonable delay has
prejudiced the State, thereby rendering consideration of his claim inequitable.” Id.
at 219 (citing Ex parte Carrio, 992 S.W.2d at 487).
In determining the issue of laches in habeas corpus cases, courts are to
consider the totality of the circumstances, i.e., “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 regard to prejudice,
“a court may draw reasonable inferences from the circumstantial evidence to
determine whether excessive delay has likely compromised the reliability of a
retrial.” Id. (emphasis added). However, even if the State presents proof of
prejudice, a court still “must then weigh that prejudice against any equitable
considerations that militate in favor of granting habeas relief.” Id.
In regard 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.” Id.
Thus, “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.”
Id. at 217–18. Although a delay of more than five years “may generally be
considered unreasonable in the absence of any justification for the delay,” the court
18
refused “to adopt a rebuttable presumption of prejudice to the State after [any]
specified period of time.” Id. at 210, 216 n.12.
In summing up its “expan[sion] of the scope of the prejudice inquiry,” the
court of criminal appeals was careful to emphasize that it was “leav[ing] intact the
equitable principles” that necessarily defeat the State’s reliance upon the defense of
laches when a record reveals:
an applicant’s delay was not unreasonable because it was due to
a justifiable excuse or excusable neglect;
the State would not be materially prejudiced as a result of the
delay; or
the applicant is entitled to equitable relief for other compelling
reasons, such as new evidence that shows he is actually innocent
of the offense or, in some cases, that he is reasonably likely to
prevail on the merits.
Id. at 218 (citing Ex parte Blue, 230 S.W.3d 151, 170 (Tex. Crim. App. 2007)
(Keller, P.J., concurring) (courts possess “equitable discretion” to ensure “federal
constitutional errors do not result in the incarceration of innocent persons”) (quoting
Herrera, 506 U.S. at 404–05, 113 S. Ct. at 862); Ex parte Scott, 190 S.W.3d 672,
675 (Tex. Crim. App. 2006) (Cochran, J., concurring) (suggesting equitable relief
warranted notwithstanding applicant’s delay in seeking habeas corpus relief where
applicant shows court of appeals wrongly affirmed conviction)).
Here, appellant does not challenge the trial court’s finding on the issue of
laches. And the record supports the trial court’s finding that laches bars his claim
19
for habeas relief, which he asserts on the ground of ineffective assistance of counsel.
Although appellant pleaded guilty and was convicted in 2002, he did not file his
application for habeas corpus relief until 2014. After the trial court designated issues
and directed trial counsel to respond, trial counsel submitted his affidavit, stating
that he did not have “any present recollection of the case” or a defense file. And he
noted that he had relocated his office and did not know where his 2002 file might
be. Thus, the record supports the trial court’s conclusion that the State has been
materially prejudiced in its ability to respond to appellant’s claim that trial counsel
rendered ineffective assistance.
Further, the record does not support any justification for appellant’s delay in
seeking habeas corpus relief. In his affidavit, appellant states that he first learned in
2014 that the complainant had said that she had “made up the story about [his]
pushing or hitting her” on May 4, 2002. However, the affidavit evidence attached
to appellant’s application clearly establishes that he and his son visit regularly, and
although he and the complainant no longer live together, their son still lived with the
complainant and appellant checks with her to see how she is doing. And appellant
did not present the trial court with any other compelling reason to grant him habeas
corpus relief. Considering the evidence in the light most favorable to the trial court’s
findings of fact and conclusions of law supported by the record, we hold that that the
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trial court did not err in concluding that the State’s defense of laches bars appellant’s
habeas corpus claim based on ineffective assistance of counsel.
We overrule appellant’s second issue.
Conclusion
We affirm the order of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Higley, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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