                                      NUMBER 13-09-00506-CR

                                      COURT OF APPEALS

                        THIRTEENTH DISTRICT OF TEXAS

                           CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                                 Appellant,

                                                            v.

CRISTELA GARCIA,                                                                     Appellee.


                       On appeal from the 449th District Court of
                               Hidalgo County, Texas.


                                  MEMORANDUM OPINION

       Before Chief Justice Valdez and Justices Yañez and Garza
               Memorandum Opinion by Justice Yañez

      The trial court granted appellee Cristela Garcia’s application for writ of habeas

corpus.1 By two issues, the State contends that the trial court abused its discretion in

granting the writ because appellee: (1) failed to meet her burden to prove that her guilty



      1
          See T EX . C OD E C R IM . P R O C . A N N . art. 11.072 (Vernon 2005).
plea was not made knowingly and voluntarily; and (2) is barred by the doctrine of laches

from obtaining habeas corpus relief. We reverse the trial court’s judgment and deny

habeas corpus relief.

                                                  I. Background

        On May 8, 1986, appellee pleaded guilty to theft of property valued more than $750

but less than $20,000, a third-degree felony.2 The trial court sentenced appellee to five

years’ imprisonment, suspended the sentence, and placed her on community supervision

for five years.3 Twenty-three years later, on May 20, 2009, appellee filed a petition for writ

of habeas corpus alleging that her plea was not made voluntarily and intelligently because,

among other reasons, she: (1) claims she was not admonished by the trial court as to the

range of punishment or consequences of her plea; (2) believed she was being processed

as a juvenile; and (3) was “too mentally immature, frightened, and confused to understand

what was going on.”4

        On July 15, 2009, the trial court held an evidentiary hearing, at which appellee

testified.5 At the hearing, appellee testified that she recently discovered that she has a

felony conviction when her application for a permit to carry a concealed weapon was

rejected. Appellee testified that when she pleaded guilty to theft, she believed she was a



       2
         See Act of June 14, 1985, 69th Leg., R.S., ch. 599, § 1, § 31.03(e)(4), 1985 Tex. Gen. Laws 2224,
2225 (current version at T EX . P EN AL C OD E A N N . § 31.03 (Vernon Supp. 2009)).

        3
            See T EX . C OD E C R IM . P R O C . A N N . art. 42.12, § 3 (Vernon Supp. 2009).

        4
         Appellee was eighteen years old when she pleaded guilty to the theft charge; the record shows she
had pleaded guilty to an earlier charge for possession of m arihuana and was placed on deferred adjudication
com m unity supervision as an adult.

        5
          The clerk’s record shows that appellee’s petition for writ of habeas corpus was filed in the 139th
District Court of Hidalgo County. After the presiding judge of that court, the Honorable Roberto “Bobby”
Flores, determ ined that he m ay have a conflict, the cause was transferred to the 449th District Court of
Hidalgo County, with the Honorable Jesse Contreras presiding.

                                                             2
juvenile, “did not know the consequences,” and “was told just to sign and that [she would]

get probation.” She stated that her attorney did not advise her of the punishment range

for the offense. On cross-examination, appellee stated she did not remember being

charged with possession of marihuana or being placed on deferred-adjudication probation

for the offense. She testified that she recalls reporting to a probation officer, but “was

under the impression [she] was a juvenile.”6 She also admitted that she does not know

what “admonishments” are. Appellee testified that she has served on at least two juries.

Appellee’s counsel argued that there is no record that appellee received admonishments,

including the range-of-punishment admonishment, “which is required under 26[.]13.”7

        The State argued that appellee’s claim is barred by the doctrine of laches. The

State noted that the presiding judge in the underlying case, the late Honorable Raul

Longoria, is deceased and the reporter’s record no longer exists. The State also argued

that there is a presumption of regularity with respect to guilty pleas and that appellee’s

testimony alone is insufficient to overcome the presumption.8 The State also noted that

article 26.13(d) of the code of criminal procedure, which requires a statement signed by the

defendant if the court makes admonitions in writing, is not applicable because it was not



        6
          The State questioned appellee about docum ents showing that prior to her possession of m arihuana
and theft offenses, for which she was charged as an adult, she was processed as a juvenile for five other
offenses in 1981 and 1982.

        7
            See T EX . C OD E C R IM . P R O C . A N N . art. 26.13(d) (Vernon Supp. 2009). That article now provides:

        The court m ay m ake the adm onitions required by this article either orally or in writing. If the
        court m akes the adm onitions in writing, it m ust receive a statem ent signed by the defendant
        and the defendant’s attorney that he understands the adm onitions and is aware of the
        consequences of the plea. If the defendant is unable or refuses to sign the statem ent, the
        court shall m ake the adm onitions orally.

Id.

        8
            See Ex parte W ilson, 716 S.W .2d 953, 956 (Tex. Crim . App. 1986).

                                                           3
in effect at the time of appellee’s plea.9

         Appellee and the State both submitted exhibits at the hearing. The State submitted:

(1) the April 1985 order granting appellee deferred adjudication adult probation on the

possession of marihuana charge, showing that she was processed as an adult in a prior

criminal proceeding; (2) a document in the marihuana matter, signed by appellee,

establishing that the “Adult Probation Department” informed her of a modification to the

terms of her probation; and (3) a “Waiver of Arraignment” signed by appellee in the

marihuana case. Appellee submitted: (1) the May 8, 1986 judgment in the theft offense,

which recites that appellee pleaded guilty and “was admonished by the Court of the

consequences of said plea, including the range of punishment”; (2) a waiver of jury trial and

application for probation signed by appellee in the theft offense; and (3) a “Stipulation of

Evidence” and judicial confession signed by appellee in the theft offense.

         On August 27, 2009, the trial court issued findings of fact and conclusions of law

and granted appellee’s petition for writ of habeas corpus. The State appealed.10

                             II. Standard of Review and Applicable Law

         An applicant seeking habeas corpus bears the burden to prove his entitlement to

the relief he seeks by a preponderance of the evidence.11 We review the evidence

presented in the light most favorable to the trial court's ruling for an abuse of discretion.12

In conducting our review, we afford almost total deference to the trial court's determination



         9
          The State is correct. Paragraph (d) of article 26.13 of the code of crim inal procedure was passed
in June 1987 and becam e effective on August 1, 1987. See Act of June 17, 1987, 70th Leg., R.S., ch. 443,
§ 1, 1987 Tex. Gen. Laws 2021, 2023 (current version at T EX . C OD E C R IM . P R O C . A N N . art. 26.13(d) (Vernon
Supp. 2009)).

         10
          See T EX . C OD E C R IM . P R O C . A N N . art. 44.01(k) (Vernon Supp. 2009) (providing State m ay appeal
an order granting relief to applicant for habeas corpus relief).

         11
              Kniatt v. State, 206 S.W .3d 657, 664 (Tex. Crim . App. 2006).

         12
              Id.

                                                          4
of the historical facts the record supports, especially when the fact findings require an

evaluation of credibility and demeanor.13 The trial court's determinations of historical fact

are entitled to some deference even when the court's findings do not rest on credibility

determinations, but are based instead on physical or documentary evidence or inferences

from other facts.14 However, if the trial court's findings of fact are not supported by the

record, then we may reject its findings.15 We afford almost total deference 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.16 If the resolution of the ultimate question turns

on an application of legal standards, we review the determination de novo.17 We must

affirm a trial court's ruling if it is correct under any theory of law applicable to the case even

if the trial court gives the wrong reason for its ruling.18

       In a habeas case, the applicant bears the burden of proving facts that would entitle

him to relief and ensuring that a sufficient record is presented to show error requiring

reversal.19 A habeas applicant’s sworn allegations alone are insufficient proof of the

applicant’s claims.20 Delay in seeking habeas corpus relief may prejudice the credibility of




        13
             Ex parte Amezquita, 223 S.W .3d 363, 367 (Tex. Crim . App. 2006).

        14
             Manzi v. State, 88 S.W .3d 240, 243-44 (Tex. Crim . App. 2002).

        15
             Ex parte Briseno, 135 S.W .3d 1, 13 (Tex. Crim . App. 2004).

        16
             Ex parte Garza, 192 S.W .3d 658, 660-61 (Tex. App.–Corpus Christi 2006, no pet.)

        17
             Id. at 661.

        18
             See Estrada v. State, 154 S.W .3d 604, 607 (Tex. Crim . App. 2005).

        19
          See Ex parte Chandler, 182 S.W .3d 350, 353 n.2 (Tex. Crim . App. 2005); Ex parte Kimes, 872
S.W .2d 700, 703 (Tex. Crim . App. 1993).

        20
           See Ex parte Evans, 964 S.W .2d 643, 648 (Tex. Crim . App. 1998) (“there is nothing in the record
to support any of the trial court’s findings” where “[t]he only item in the record regarding these claim s are
Applicant’s sworn allegations. Even sworn allegations are not alone sufficient proof”) (citing Ex parte Empey,
757 S.W .2d 771, 775 (Tex. Crim . App. 1988)).

                                                      5
the applicant’s claim.21 Under the doctrine of laches, an application for writ of habeas

corpus may be denied if the State proves it has been prejudiced in its ability to respond to

the application by the applicant’s delay in filing the application unless the applicant shows

that the delay was based on grounds which he could not have known before the State was

prejudiced.22 To prevail on a claim of laches, the State must: (1) make a particularized

showing of prejudice; (2) show that the prejudice was caused by the applicant having filed

a late petition; and (3) show that the applicant has not acted with reasonable diligence as

a matter of law.23 The length of delay alone will not constitute either unreasonableness of

delay or prejudice.24

                                            III. Discussion

       The trial court entered the following findings of fact and conclusions of law:

        1.         Despite the approximate 23 year period that has elapsed since the
                   Applicant’s plea of guilty in 1986, Applicant sought relief and filed her
                   Application for Writ herein in a timely fashion and with reasonable
                   diligence. Applicant was unaware of her felony adult conviction until
                   she was recently advised of the such [sic] when she applied for a
                   concealed weapon license, approximately three months prior to the
                   filing [of] her Application herein. Applicant’s lack of knowledge of her
                   conviction is supported by her unchallenged testimony that she has
                   served on three Hidalgo County juries since her plea, including
                   criminal juries wherein defendants were found guilty. The Applicant
                   had a prior juvenile history and a prior misdemeanor adult conviction
                   at the time of her plea in 1986, however, the 139th District Court, like
                   all other Hidalgo County District Courts at the time, handled both
                   juvenile and adult felony proceedings, and that there is merit to
                   Applicant’s testimony that she believed she was being processed as
                   a juvenile at the time of her plea. Additionally, although much time
                   has passed since the plea in 1986, the State provided no evidence to

        21
             Kniatt, 206 S.W .3d at 664.

        22
             See Ex parte Carrio, 992 S.W .2d 486, 487 (Tex. Crim . App. 1999).

        23
             See id. at 488.

        24
             Id.

                                                      6
                 show that the State is prejudiced by the setting aside of the plea,
                 judgment and sentence. There is no evidence that the State’s case
                 could not be presented in a new trial. For the aforementioned
                 reasons, Applicant’s claim is not barred by the equitable doctrine of
                 laches.

      2.         Applicant’s plea of guilty was made involuntarily, unintelligently, and
                 unknowingly. In addition to believing that she was being processed
                 as a juvenile, at the time of the plea, Applicant was a high[-]school
                 student who mechanically followed her attorney’[s] request to sign and
                 plea as he directed because she was going to be on probation.
                 Attributable to her status as a high[-]school student, history with
                 juvenile probation, immaturity and drug use, Applicant’s plea of guilty
                 was made pursuant to her limited understanding that she would get
                 probation on a juvenile case. Applicant therefore was unaware that
                 she was going to have an adult felony conviction, said conviction
                 being a direct consequence of her plea.

      3.         The Court has considered the case law submitted by the State in
                 reference to the presumption of regularity and the Applicant’s burden
                 of proof. However, unlike Wilson, Brown, Reeves, and Young,
                 Applicant’s complaint is not about the regularity of the proceedings as
                 much as it is about her basic misunderstanding of what kind of
                 proceeding it was. Ex parte Wilson, 716 S.W.2d 953 (Tex. Crim. App.
                 1986); Brown v. State, [917] S.W.2d 387 (Tex. App.–Fort Worth 1996,
                 no pet.); Reeves v. State, 500 S.W.2d 648 (Tex. Crim. App. 1973); Ex
                 parte Young, 479 S.W.2d 45 (Tex. Crim. App. 1972). Additionally,
                 unlike Wilson, Brown, Reeves, and Young[,] Applicant has provided
                 evidence beyond the plea proceedings to support her argument that
                 her plea was involuntary. Here, the Court particularly finds Applicant’s
                 unchallenged testimony that she has served as a convicting criminal
                 juror since her plea to be compelling and credible evidence that she
                 was unaware of her conviction at the time of her plea.

                                             ORDER

                 Having considered the pleadings, the record, and arguments of
                 counsel, the Court HEREBY FINDS that Applicant’s plea of guilty was
                 made involuntarily, unintelligently, and unknowingly. Applicant’s
                 requested relief is proper and should be GRANTED.[25]

      By its first issue, the State contends that appellee has failed to prove her claims by

a preponderance of the evidence. We agree. The trial court found that appellee’s guilty


      25
           Em phasis in original.

                                                7
plea was made “involuntarily, unintelligently, and unknowingly” and that she pleaded guilty

unaware that she would have an adult felony conviction as a consequence. Here, as in Ex

parte Evans, the only “evidence” in the record regarding appellee’s claims is her own sworn

testimony, which is insufficient by itself.26 Although appellee testified that she was not

admonished by the trial court about the range of punishment or the consequences of her

plea, she also stated that she does not understand what admonishments are. The only

other evidence in the record as to admonishments—presented by appellee—is the May 8,

1986 judgment that recites that she “was admonished by the Court of the consequences

of [her guilty plea], including the range of punishment.” Recitations in the judgment and

other portions of the record are binding on an appellant in the absence of direct proof to

the contrary, and the appellant has the burden of overcoming the presumptions raised by

the record in such cases.27 Although appellee testified that she was not orally admonished

by the trial court as to the range of punishment or consequences of her plea, the record

suggests otherwise; because of the lengthy delay in asserting her claim, the reporter’s

record—which would show whether she was orally admonished—is no longer available,

and the trial court judge is deceased.28

        We hold that appellee’s sworn allegations are insufficient proof of her claims.29

Because the trial court’s findings are not supported by the record, we reject its findings.30



        26
             See Ex parte Evans, 964 S.W .2d at 648.

        27
             Brown v. State, 917 S.W .2d 387, 390 (Tex. App.–Fort W orth 1996, no pet.).

        28
           See T EX . G O V ’T C OD E A N N . § 52.046(a)(4) (Vernon 2005) (providing that a court reporter preserve
notes of a proceeding for three years).

        29
             See Ex parte Evans, 964 S.W .2d at 648; Ex parte Empey, 757 S.W .2d at 771.

        30
             See Ex parte Briseno, 135 S.W .3d at 13.

                                                         8
                                                IV. Conclusion

        We sustain the State’s first issue, reverse the trial court’s judgment, and render

judgment that habeas corpus relief is denied.

        Because of our disposition of the State’s first issue, we need not address its second

issue.31




                                                                         LINDA REYNA YAÑEZ
                                                                         JUSTICE

Do not publish.
TEX . R. APP. P. 47.2(b).
Delivered and filed the
31st day of August, 2010.




           31
           See T EX . R. A PP . P. 47.1. Although we do not address the State’s contention that appellee’s claim s
are barred by the doctrine of laches, we note that this case is rem arkably sim ilar to a habeas claim recently
denied by the court of crim inal appeals. See Ex parte Nelson, No. W R-36,989-02, 2008 Tex. Crim . App.
Unpub. LEXIS 636, at *4 (Tex. Crim . App. Sept. 10, 2008) (per curiam ). In that case, the habeas applicant
claim ed his plea of guilty was involuntary because defense counsel and the trial court advised him he would
receive a sentence of not m ore than ten years if he pleaded guilty. Id. at *1. In denying habeas corpus relief,
the court of crim inal appeals noted:

           The habeas court’s finding that the evidence does not show any particularized prejudice to
           the State’s ability to respond is a finding of fact that should be followed if it is supported by
           the record. Ex parte Brandley, 781 S.W .2d 886 (Tex. Crim . App. 1989). Here, however, this
           finding is not supported by the record. The reporter’s record and defense counsel’s records
           are no longer available. Those records would show whether the court’s custom ary practice
           was followed in Applicant’s case and whether Applicant was correctly inform ed of the term s
           of the plea bargain. In short, the evidence that would be m ost responsive to Applicant’s claim
           has been lost as a result of Applicant’s delay in bringing the claim .

Id. at *4.

                                                          9
