                                   IN THE
                           TENTH COURT OF APPEALS

                                   No. 10-14-00163-CR

                      EX PARTE JUAN CARLOS MOREJON


                             From the 77th District Court
                              Limestone County, Texas
                                Trial Court No. 1085-A


                            MEMORANDUM OPINION


       In 2009, Juan Carlos Morejon pled guilty to the offense of theft, a class B

misdemeanor, was convicted and sentenced to two days in jail, with time served, and

was ordered to pay restitution in the amount of $245. In February of 2014, he filed an

application for writ of habeas corpus alleging that his guilty plea was involuntary

because he pled without the aid of counsel and without knowing the immigration

consequences of his plea. After a hearing, the trial court denied Morejon’s application.

Because the trial court did not abuse its discretion in denying the application based on

the doctrine of laches, the trial court’s order is affirmed.
JURISDICTION

       Initially, the State argues that the trial court had no jurisdiction to hear Morejon’s

writ application because it was filed pursuant to article 11.09 of the Texas Code of

Criminal Procedure which, the State argues, does not confer jurisdiction. See TEX. CODE

CRIM. PROC. ANN. art. 11.09 (West 2005). However, in Ex parte Schmidt, the Court of

Criminal Appeals held that the county court at law has the power to issue the writ of

habeas corpus when a person is restrained by an accusation or conviction of a

misdemeanor.       Ex parte Schmidt, 109 S.W.3d 480, 482-83 (Tex. Crim. App. 2003)

(emphasis added).      This proposition in Schmidt has been recited by the Court of

Criminal Appeals within the last few years. See James v. Dallas County, No. WR-76,627-

02, 2012 Tex. Crim. App. Unpub. LEXIS 876, *2 (Tex. Crim. App. Sept. 12, 2012). And,

even though Morejon’s application was filed in and denied by a district court, “[b]oth

county and district courts have original jurisdiction in habeas corpus proceedings when

attacks are made upon the validity of misdemeanor convictions; see Article 5, Section 8

of the Constitution of Texas; Articles 11.05 and 11.09, V.A.C.C.P., and petitioners have a

right of appeal from an order denying relief.” Ex parte Crosley, 548 S.W.2d 409 (Tex.

Crim. App. 1977). Accord Schmidt, 109 S.W.3d at 482 (regarding ability to appeal).

Accordingly, the trial court had jurisdiction to hear and decide Morejon’s application

for writ of habeas corpus.




Ex parte Morejon                                                                       Page 2
STANDARD OF REVIEW

       An applicant for habeas corpus relief must prove his claim by a preponderance

of the evidence. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); Ex parte

Scott, 190 S.W.3d 672, 673 (Tex. Crim. App. 2006) (per curiam). In reviewing the trial

court's order denying habeas corpus relief, we view the facts in the light most favorable

to the trial court's ruling. See Kniatt, 206 S.W.3d at 664. We will uphold the trial court's

ruling absent an abuse of discretion. See id. We afford almost total deference to the trial

court's determination of the historical facts that the record supports.        See Ex parte

Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (per curiam), overruled on other

grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). We likewise defer to

the trial court's application of the law to the facts, if the resolution of the ultimate

question turns on an evaluation of credibility and demeanor. See id. But we review de

novo those "mixed questions of law and fact" that do not depend upon credibility and

demeanor. Id.

LACHES

       Morejon takes issue with the trial court’s finding that Morejon’s plea was

voluntary, its conclusion that Morejon’s claim was barred by laches, and its conclusion

that Morejon was not unlawfully restrained. We discuss Morejon’s second issue first,

that the trial court erred in denying Morejon’s habeas claim based on the doctrine of




Ex parte Morejon                                                                      Page 3
laches.1

        The equitable doctrine of laches refers to a party's failure to assert a claim which,

along with the lapse of time and other circumstances causing prejudice to the adverse

party, bars the claim. Ex parte Perez, 398 S.W.3d 206, 210 (Tex. Crim. App. 2013). The

doctrine also includes the failure, for an unreasonable and unexplained period of time

under circumstances permitting diligence, to do what should have been done. Id. The

trial court considers the totality of the circumstances, including all forms of prejudice,

when deciding whether to apply the doctrine of laches. Id. at 208.

        Since the decision in Perez, the State need not make a particularized showing of

prejudice. Id. at 215. Rather, the trial court may consider "anything that places the State

in a less favorable position, including prejudice to the State's ability to retry a

defendant[.]" Id. "[T]he longer a case has been delayed, the more likely it is that the

reliability of a retrial has been compromised." Id. at 218. This includes "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 for a reviewing court 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

1The State raised the doctrine of laches in response to Morejon’s application for writ of habeas corpus,
arguing that the delay between Morejon’s plea and his writ application was unreasonable.

Ex parte Morejon                                                                                 Page 4
from the delay. Id. at 217. No single factor is necessary or sufficient. Id. Instead, courts

must "engage in a difficult and sensitive balancing process" that takes into account the

parties' overall conduct. Id. 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. Id. 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.

       The degree of proof required is a "sliding scale.” Id. at 217. That is, the extent of

the prejudice the State must show bears an inverse relationship to the length of the

applicant's delay. Id. The longer the delay, particularly when the delay exceeds five

years after conclusion of direct appeals, the less evidence the State must present to

demonstrate prejudice. Id. at 215. "[D]elays of more than five years may generally be

considered unreasonable in the absence of any justification for the delay." Id. at 216

n.12. The delay in this case lacks a month from being five years between the date of the

plea and the filing of the application, but it was over seven years after the date of the

offense.

Evidence/Argument

       Morejon pled guilty to the offense on March 2, 2009.            The record does not

indicate that any appeal was perfected. At the hearing on his application, Morejon




Ex parte Morejon                                                                      Page 5
testified that “within the last year,”2 he consulted with an immigration attorney and

discovered that his plea “could” become a problem. He argued to the trial court that his

delay was not “active” or “intentional,” meaning that as soon as he found out about the

potential problem, he began to address it. The State presented testimony that Morejon

did not know where the victim of the theft currently lived. Although the District

Attorney testified that the documents of the case should still be available, the

investigator of the offense no longer worked for Limestone County. Further, the State

argued to the trial court that it would be trying to relitigate a misdemeanor theft with a

single complaining witness that happened approximately eight years ago and did not

have any hope of finding that witness.

Application

       After hearing testimony and argument, the trial court determined that the delay

between the initial offense, the conviction, and the application compromised the

reliability of retrial of the offense on the merits. The record supports this determination.

       The delay between the plea and the application was almost five years. Morejon’s

reason for the delay was only his lack of knowledge that the plea “could” become a

problem affecting his ability to remain in the country. There was nothing in the record

to show that his plea had actually become a problem for him. Further, the State’s ability

to locate the sole witness to the offense was diminished due to the length of the delay.

2The application was filed in February of 2014. Thus, we presume Morejon began consulting with an
immigration attorney sometime in 2013.

Ex parte Morejon                                                                           Page 6
Based on the totality of the circumstances, we find the trial court did not abuse its

discretion in applying the equitable doctrine of laches to deny Morejon’s application for

writ of habeas corpus. Morejon’s second issue is overruled.

CONCLUSION

       Because we have determined that the trail court did not err in denying Morejon

relief based on the equitable doctrine of laches, we need not discuss Morejon’s

remaining issues—whether the trial court erred in finding Morejon’s plea to be

voluntary or whether the trial court erred in concluding Morejon was not unlawfully

restrained. Accordingly, we affirm the trial court’s order denying Morejon’s application

for writ of habeas corpus.




                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed May 28, 2015
Do not publish
[CR25]




Ex parte Morejon                                                                   Page 7
