                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-11-00217-CR

                          EX PARTE ESTEBAN REYNA



                               From the County Court
                               Navarro County, Texas
                                Trial Court No. 35561


                               ABATEMENT ORDER


       This is an appeal of the trial court’s denial of Esteban Reyna’s application for writ

of habeas corpus. Reyna’s application asserts that in 2010 he was charged with a felony

DWI based on two prior DWI convictions, including the underlying 1990 misdemeanor

conviction that is the subject of his habeas application. The gist of Reyna’s request for

habeas relief in the form of setting aside this 1990 conviction is that his guilty plea was

involuntary.

       In originally denying Reyna habeas corpus relief, the trial court issued findings

of fact and conclusions of law. One of the conclusions of law is: “Too much time has

elapsed between the misdemeanor conviction and the filing of the Application for

Habeas Corpus and the same should be denied on this basis.”
       Reyna’s fifth issue contests the trial court’s laches conclusion—that “too much

time has elapsed” between Reyna’s misdemeanor conviction and the filing of his habeas

application. The guilty plea at issue occurred on December 21, 1990, and Reyna’s

application for writ of habeas corpus was filed a little over twenty years later, on March

30, 2011.

       The Court of Criminal Appeals recently modified “the parameters of the

equitable doctrine of laches as it applies to bar a long-delayed application for a writ of

habeas corpus.” Ex parte Perez, 398 S.W.3d 206, 208 (Tex. Crim. App. 2013).

               Recognizing that our current approach to laches in the habeas
       corpus context has imposed an unreasonably heavy burden upon the
       State, we now adopt a revised approach that is consistent with the Texas
       common-law definition of that doctrine. In doing so, we expand the
       definition of prejudice under the existing laches standard to incorporate
       all forms of prejudice so that a court may consider the totality of the
       circumstances in deciding whether to hold an application barred by
       laches. Our revised approach is motivated by our recognition that the
       current laches standard is too rigid and, as a result, some applicants have
       been permitted to seek post-conviction relief despite excessive and
       unjustified delays that have prejudiced the State’s ability to defend long-
       standing convictions. This approach has failed to account for the State’s
       interest in finality and is incompatible with fundamental principles of
       fairness and equity, which must underlie any grant of habeas corpus
       relief.

Id.

       Before Perez, the State had the burden of (1) making a particularized showing of

prejudice to its ability to respond to the allegations in the application, (2) showing that

the prejudice was caused by the applicant having filed a late petition, and (3) showing

that the applicant has not acted with reasonable diligence as a matter of law. See Ex

parte Wolf, 296 S.W.3d 160, 167 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d) (citing

Ex parte Reyna                                                                       Page 2
Ex parte Carrio, 992 S.W.2d 486, 488 (Tex. Crim. App. 1999)). In Perez, the Court of

Criminal Appeals described the State’s burden under prior law as “unreasonably

heavy” and “impossibly high.” 398 S.W.3d at 208, 214. In this case, the State did not

submit evidence on laches.

       Under Perez, (1) the State is not required to make a “particularized showing of

prejudice” so that courts may more broadly consider material prejudice resulting from

delay, and (2) the definition of prejudice is expanded to permit consideration of

anything that places the State in a less favorable position, including prejudice to the

State’s ability to retry a defendant, so that a court may consider the totality of the

circumstances in deciding whether to grant equitable relief. Id. at 215. This approach

permits “courts to more broadly consider the diminished memories of trial participants

and the diminished availability of the State’s evidence, both of which may often be said

to occur beyond five years after a conviction becomes final.” Id. at 216.

       It “may be proper to consider, among all relevant circumstances, factors such as

the length of the applicant’s delay in filing the application, the reasons for the delay,

and the degree and type of prejudice resulting from the delay.”             Id. at 217.     “In

considering whether prejudice has been shown, a court may draw reasonable inferences

from the circumstantial evidence to determine whether excessive delay has likely

compromised the reliability of a retrial. … If prejudice to the State is shown, a court

must then weigh that prejudice against any equitable considerations that militate in

favor of granting habeas relief.” Id.



Ex parte Reyna                                                                            Page 3
               With respect to the degree of proof required, the extent of the
       prejudice the State must show bears an inverse relationship to the length
       of the applicant’s delay. This “sliding scale” approach is analogous to the
       flexible burden of proof applicable to speedy-trial claims. … Here,
       similarly, the longer an applicant delays filing his application, and
       particularly when an applicant delays filing for much more than five years
       after conclusion of direct appeals, the less evidence the State must put
       forth in order to demonstrate prejudice. The rationale for this sliding-
       scale approach is based on the common-sense understanding that the
       longer a case has been delayed, the more likely it is that the reliability of a
       retrial has been compromised.

Id. at 217-18.

       The Court of Criminal Appeals would not identify a precise period of time after

which laches necessarily applies, but it recognized that “delays of more than five years

may generally be considered unreasonable in the absence of any justification for the

delay.” Id. at 216 n.12.

       In Perez, the Court of Criminal Appeals remanded the case to the trial court so

that the parties could be afforded the opportunity to produce additional evidence in

light of the revised approach to the doctrine of laches. Id. at 219. Therefore, we abate

this appeal again and remand this case to the trial court for an evidentiary hearing on

the issue of laches and for the trial court to issue additional findings of fact and

conclusions of law.

       The evidentiary hearing shall be conducted within 21 days of the date of this

order. The supplemental clerk’s record containing the additional findings of fact and

conclusions of law and the supplemental reporter’s record are ordered to be filed within

35 days of the date of this order.



Ex parte Reyna                                                                           Page 4
       Within 20 days of the filing of the supplemental record, either party may file a

supplemental brief on the issue of laches. Any brief in response shall be filed within 10

days of the filing of the brief being responded to. Absent extraordinary circumstances,

no motions for extension of time to file a supplemental brief will be entertained.


                                                PER CURIAM

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Abated
Order issued and filed September 19, 2013
Do not publish




Ex parte Reyna                                                                       Page 5
