Opinion
NO. 01-18-00177-CR
02-05-2019
EX PARTE MARINA URBINA, Appellant
On Appeal from the 405th District Court Galveston County, Texas
Trial Court Case No. 04CR2126-83-1
MEMORANDUM OPINION
Appellant, Marina Urbina, challenges the trial court's order denying her application for a writ of habeas corpus. She contends that her trial counsel's representation was deficient because he failed to advise her of the immigration consequences of a felony conviction, properly investigate her case, or obtain subpoenas for trial witnesses.
We affirm.
Background
In March 2005, a jury convicted appellant of the felony offense of aggravated assault with a deadly weapon, assessed her punishment at confinement for five years, and recommended that the sentence be probated. The trial court suspended appellant's sentence and placed her on community supervision for five years. She successfully completed her community supervision, and her sentence was discharged on April 22, 2010.
See TEX. PENAL CODE ANN. § 22.02(a); see id. § 22.01(a).
In November 2017, appellant filed her application for a writ of habeas corpus pursuant to article 11.072 of the Texas Code of Criminal Procedure. In her application, appellant asserted that her trial counsel rendered ineffective assistance because he failed to (1) advise her of the immigration consequences of a felony conviction for a violent crime; (2) properly investigate the case, "including failing to investigate the criminal history and the character of the complaining witness"; and (3) obtain subpoenas for witnesses who were prepared to testify on her behalf at trial. Appellant specifically asserted that the State had offered her "a misdemeanor plea" but trial counsel failed to inform her "that a plea to a misdemeanor was preferable to conviction for a violent felony offense, vis-a-vis the deportation process or proceedings" and, thus, she could not "make an informed decision as to whether to accept the offer of a guilty plea to a misdemeanor or to proceed to trial on the felony offense." And she asserted that she was restrained of her liberty because, as a result of her conviction, she "lost her status as a legal resident alien in the United States of America and was subsequently deported to the Republic of Mexico, where she remain[ed]."
With her application, appellant included her statement acknowledged by a United States consular official. In that statement, she explained "how [she] was misrepresented by [trial counsel] in [her] case in 2005." According to appellant, trial counsel "didn't do his job to the fullest," "wasn't prepared during the trial," and "[t]he few times [they] met were useless." Although appellant gave her trial counsel the names of witnesses, he did not subpoena them for trial, told her "subpoenas weren't needed till [a] later date," and, thus, "one of [her] key witnesses was not present to testify since she was not subpoenaed." And, her trial counsel "also didn't put [her] husband on the stand" but "put [her] 11[-]year[-]old daughter making it look like a guilty plea." Appellant explained that the State "had offered a misdemeanor charge and probation time which [she] didn't take" because she was "concerned it could affect [her] Nursing License." Further, her trial counsel "never asked if [she] was an American Citizen," and she was not "informed that a guilty charge could change [her] [i]mmigration status." And after she completed her probation in 2010, she was "informed that [her] immigration status would change." In 2011, she "was contacted by ICE to be put on (ISAP) Intensive Supervision Appearance Program and [an] Electronic Monitoring Program" and, in December 2013, "was deported to Mexico."
Appellant's habeas counsel verified her habeas application.
As ordered by the trial court, appellant's trial counsel filed an affidavit regarding his representation of appellant. In that affidavit, trial counsel testified that he "was previously employed as an attorney licensed in the State of Texas beginning in 1970" and was "currently retired." He explained that he no longer had his file from his representation of appellant; believed that the file, "along with many other files from my representations of previous clients, was destroyed in 2008 after Hurricane Ike"; and had "no memory of [his] representation of [appellant]." Further, counsel was "unaware of any available documentation which [he could] review that would refresh [his] recollection concerning [his] representation of [appellant]," and, therefore, he could not "respond to the claims of ineffective assistance of counsel raised by [appellant] due to the 13 years which [had] passed since [he] represented her."
The State responded to appellant's application contending that the doctrine of laches barred any habeas relief because appellant's unreasonable delay in pursuing relief prejudiced the State's ability to respond to her habeas claims. The State asserted that the issues appellant raised in her application "[could] be resolved upon review of official trial court records and without need for an evidentiary hearing" and trial counsel's affidavit "reflect[ed] that a hearing would not provide any evidence which could assist the trial court in resolving factual issues." The State attached trial counsel's affidavit to its response. The record does not include any response from appellant to the State's response or her trial counsel's affidavit.
See id. art. 11.072, § 3(b).
The court denied the requested habeas relief and issued findings of fact and conclusions of law. The trial court's findings include:
1. "[Trial counsel] was retained to represent [appellant] in the trial phase of cause number 04CR2126."
2. "On March 29, 2005, a jury returned a verdict of guilty for the felony offense of aggravated assault with a deadly weapon in cause number 04CR2126 . . . ."
3. "On March 30, 2005, the jury returned a verdict assessing a sentence of five (5) years confinement in the Texas Department of Criminal Justice—Institutional Division and recommended that [appellant's] sentence be probated in cause number 04CR2126. [Appellant] did not appeal this conviction or suspended sentence."
4. "On April 22, 2010, [appellant] was discharged from community supervision."
5. "This Court finds that the assertions in the court-ordered affidavit of [trial counsel] are true and credible."
6. "The Court finds, based on a review of the official trial court records and the credible affidavit of [trial counsel], that over twelve years have passed since [appellant] was placed on community supervision in March of 2005 and over seven years have passed since [she] was discharged from community supervision in April of 2010 until the time that [she] filed the instant habeas application in November of 2017 in cause number 04CR2126."
7. "The Court finds, based on the credible affidavit of [trial counsel], that [he] does not remember any part of his representation of [appellant] in cause number 04CR2126."Based on its findings of fact and conclusions of law, the trial court denied appellant's requested habeas relief.
8. "The Court finds, based on the credible affidavit of [trial counsel], that [he] no longer possesses his file from the representation of [appellant] in cause number 04CR2126 because it was destroyed in 2008."
9. "The Court finds, based on the credible affidavit of [trial counsel], that there is nothing that can refresh [his] recollection concerning his representation of [appellant]."
10. "The Court finds, based on a review of the official trial court records and the habeas application, that [appellant] unreasonably delayed more than five years in pursuing habeas remedies in November 2017."
11. "The Court finds, based on a review of the official trial court records and the credible affidavit of [trial counsel], that the State has been materially prejudiced in its ability to respond to the allegations of ineffective assistance of counsel as a result of [trial counsel's] loss of memory, inability to access his files, and the unavailability of any documentation which could refresh his memory, all of which resulted from the passage of time due to [appellant's] unreasonable delay in pursuing habeas remedies."
12. "The Court finds that the allegations of ineffective assistance of counsel raised in the habeas application in cause number 04CR2126-83-1 should be barred in accordance with the doctrine of laches."
Standard of Review
Generally, an applicant seeking post-conviction habeas relief must prove his claims by a preponderance of the evidence. Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002). 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 335 (Tex. Crim. App. 2007). In a post-conviction habeas corpus proceeding, the trial judge is the sole finder of fact. See Ex parte Garcia, 353 S.W.3d 785, 788 (Tex. Crim. App. 2011); Ex parte Martinez, 451 S.W.3d 852, 856 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd). 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); 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 at 787. 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.
Laches
In the trial court, the State contended that the doctrine of laches barred appellant's requested habeas relief. Laches is an equitable doctrine that bars an applicant's habeas claim if her unreasonable delay in raising the claim resulted in prejudice to the State. See Ex parte Perez, 398 S.W.3d 206, 210 (Tex. Crim. App. 2013) (citing Ex parte Carrio, 992 S.W.3d 486, 487-88 (Tex. Crim. App. 1999)). The Texas Court of Criminal Appeals has 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." Id. at 210 n.3 (citations omitted). 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. However, even if the State presents proof of prejudice, a court "must then weigh that prejudice against any equitable considerations that militate in favor of granting habeas relief." Id.
As 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 [the] conclusion of direct appeals, the less evidence the State must put forth in order to demonstrate prejudice." Id. at 217-18. Although it has not adopted a bright-line rule, the Court of Criminal Appeals has recognized that a delay longer than five years "may generally be considered unreasonable in the absence of any justification for the delay." Id. at 216 n.12.
Here, the record reflects that the trial court based its findings and conclusions on the trial court record and trial counsel's affidavit. That record shows that appellant was convicted and placed on community supervision in 2005 and filed her habeas application in 2017—approximately twelve years after her conviction and approximately seven years after her sentence was discharged. In his affidavit, appellant's trial counsel testified that he no longer had appellant's file, believed that it was destroyed in 2008 after Hurricane Ike, did not remember his representation of appellant, and was "unaware of any available documentation which [he could] review that would refresh [his] recollection concerning [his] representation of [appellant]." Accordingly, the record supports the trial court's findings that the State has been materially prejudiced in its ability to respond to appellant's allegations of ineffective assistance of counsel as a result of her trial counsel's "loss of memory, inability to access his files, and the unavailability of any documentation from which [he] could refresh his memory all of which resulted from the passage of time due to [appellant's] unreasonable delay in pursuing habeas remedies." See Ex parte Roberts, 494 S.W.3d 771, 776 (Tex. App.—Houston [14th Dist.] 2016, pet, ref'd) ("Diminished memories and lost evidence weigh heavily in favor of laches."); see, e.g., Ex parte Aruizu, No. 01-15-00250-CR, 2016 WL 1590618, at *8 (Tex. App.—Houston [1st Dist.] Apr. 19, 2016, no pet.) (mem. op., not designated for publication).
Further, the record does not reflect any justification for appellant's delay in seeking habeas relief. The habeas record indicates that she knew the immigration consequences of her conviction in 2010, when she was "informed that [her] immigration status would change." See Ex parte Vasquez, 499 S.W.3d 602, 613 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd) (concluding appellant knew consequences of guilty plea at least by time he was deported and deportation later affirmed). And, the record further indicates that appellant's deportation to Mexico should not have prevented her from filing her habeas application as she did file an application in 2017, although she remained in Mexico. Appellant unreasonably delayed more than five years in pursuing habeas remedies in November 2017. Accordingly, the record supports the trial court's finding that appellant unreasonably delayed more than five years before filing her habeas application in March 2017.
Considering the evidence in the light most favorable to the trial court's ruling and deferring to the trial court's findings supported by the record, we conclude that that the trial court did not abuse its discretion in finding that laches barred appellant's habeas relief as to her claims of involuntary plea and ineffective assistance of counsel.
Conclusion
We affirm the order of the trial court denying appellant habeas relief.
Julie Countiss
Justice Panel consists of Chief Justice Radack and Justices Goodman and Countiss. Do not publish. TEX. R. APP. P. 47.2(b).