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




                                           20
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).




                                           21