                                                                                        ACCEPTED
                                                                                    01-15-00250-CR
                                                                         FIRST COURT OF APPEALS
                                                                                 HOUSTON, TEXAS
                                                                                7/9/2015 3:04:13 PM
                                                                              CHRISTOPHER PRINE
                                                                                             CLERK




                                                                FILED IN
                                                         1st COURT OF APPEALS
                         No. 01-15-00250-CR                  HOUSTON, TEXAS
                                                         7/9/2015 3:04:13 PM
                    In the Court of Appeals for the      CHRISTOPHER A. PRINE
                         First District of Texas                 Clerk

                               At Houston
                         ♦
                           No. 1943590
          In County Criminal Court at Law Number Seven
                      Of Harris County, Texas
                         ♦
                              Ex parte
                       JULIO GIALITO ARUIZU
                              Appellant
                         ♦
                        State’s Appellate Brief
                         ♦



Devon Anderson                                Clinton A. Morgan
District Attorney                             Assistant District Attorney
Harris County, Texas                          Harris County, Texas
                                              State Bar No. 24071454
Molly Wurzer                                  morgan_clinton@dao.hctx.net
Assistant District Attorney
Harris County, Texas                          1201 Franklin St., Suite 600
                                              Houston, Texas 77006
                                              Telephone: 713.755.5826




                    Oral Argument Not Requested
                Statement Regarding Oral Argument

      The appellant requested oral argument, though he gave no

particular reason why. The State believes that the briefs in this case

adequately apprise this Court of the issues and the law, and any

marginal benefit from oral argument does not justify the considerable

amount of time that preparation for oral argument requires of the

parties and the Court. The State does not request oral argument.




                                   i
                         Identification of the Parties

Counsel for the State:

      Devon Anderson
            District Attorney of Harris County

      Molly Wurzer
            — Assistant District Attorney on original application

      Clinton A. Morgan
             Assistant District Attorney on appeal

Appellant:

      Julio Gialito Aruizu

Counsel for the Appellant:

      Lance Nguyen
           — Counsel on original application and on appeal

Trial Judge:

      Pam Derbyshire
            Presiding judge




                                      ii
                                       Table of Contents

Statement Regarding Oral Argument ................................................. i
Identification of the Parties .............................................................. ii
Table of Contents ................................................................................ iii
Index of Authorities ............................................................................ iv
Statement of the Case .......................................................................... 1
Statement of Facts ................................................................................ 1
Summary of the Argument .................................................................. 4
Reply to Point One
   The appellant did not conclusively prove his innocence. His affidavits
   failed to rebut the State’s evidence. Moreover, in light of the police
   officer’s report the trial court had a basis for concluding that the
   appellant’s evidence was not credible. ............................................................... 6
      I. Standard of Review: The trial court’s findings of fact are
      entitled to near-total deference, and its ultimate decision is
      reviewed only for an abuse of discretion. ..................................................... 6
      II. Argument
         A. The appellant’s Herrera claim fails because he did not
         produce evidence conclusively showing his innocence. ..................... 8
         B. This Court should reject the appellant’s “Schlup-type claim of
         innocence” because Schlup is irrelevant to this case. ....................... 11
Reply to Point Two
   The appellant’s ineffective-assistance claim is barred by laches
   because he waited more than twelve years to raise it and he has
   offered no reason to justify the delay................................................................ 14
Conclusion .......................................................................................... 17
Certificate of Compliance and Service ........................................... 18




                                                    iii
                                           Index of Authorities


Cases
Ex parte Ali
  368 S.W.3d 827 (Tex. App.—
  Austin 2012, pet. ref’d) .............................................................................................. 7
Ex parte Bowman
  447 S.W.3d 887 (Tex. Crim. App. 2014) ........................................................... 15
Ex parte Carrio
  992 S.W.2d 486 (Tex. Crim. App. 1999) ........................................................... 14
Ex parte Garcia
  353 S.W.3d 785 (Tex. Crim. App. 2011) .............................................................. 6
Ex parte Navarilo
  433 S.W.3d 588 (Tex. Crim. App. 2014) ...................................................... 9, 10
Ex parte Perez
  398 S.W.3d 206 (Tex. Crim. App. 2013) .................................................... 14, 15
Ex parte Tuley
  109 S.W.3d 388 (Tex. Crim. App. 2002) .............................................................. 8
Ex Parte Villegas
  415 S.W.3d 885 (Tex. Crim. App. 2013) ........................................................... 13
Ex parte Zantos-Cuebas
  429 S.W.3d 83 (Tex. App.—
  Houston [1st Dist.] 2014, no pet.) ......................................................................... 7
Herrera v. Collins
  506 U.S. 390 (1993) .................................................................................................... 8
Kniatt v. State
  206 S.W.3d 657 (Tex. Crim. App. 2006) .............................................................. 7
Schlup v. Delo
  513 U.S. 298 (1995) .......................................................................................... 11, 12
Shanklin v. State
  190 S.W.3d 154 (Tex. App.—
  Houston [1st Dist.] 2005), pet. dism’d, improvidently granted
  211 S.W.3d 315 (Tex. Crim. App. 2007) .............................................................. 7


                                                            iv
Statutes
TEX. CODE CRIM. PROC. art. 11.072 ................................................................................. 6




                                                         v
                            Statement of the Case

      In July 2002, the appellant pleaded guilty to the misdemeanor

offense of assaulting a family member. (CR 12). In accord with an

apparent plea bargain, the trial court assessed punishment at fifteen

days’ confinement in the county jail. (CR 12).

      In January 2014, the appellant filed an application for a writ of

habeas corpus challenging his 2002 conviction. (CR 5-10). In February,

2014, the appellant filed an amended petition. (CR 19-26). The trial

court denied relief. (CR 104). The appellant filed a notice of appeal, 1 and

the habeas court certified his right of appeal. (CR 108-09, 110).


                              Statement of Facts

      The record contains two sources of information regarding the

underlying events of this case: 1) A police report from the date of the

offense; (CR 87-88) and 2) three affidavits that the appellant submitted

with his habeas petition, but which the trial court found to be not

credible. (CR 29-30, 35-42; Supp. CR 7).



1The notice of appeal was filed on March 9, which would be 34 days after the date
on which the trial court entered its order denying relief. However, the notice of
appeal also seems to have been mailed, which might render it timely filed. The State
received a copy of the notice of appeal via fax on March 5, the thirtieth day after
relief was denied.
                                         1
      The police report indicates that the officer was dispatched to the

appellant’s home “in response to a possible family disturbance.” (CR 87).

The complainant was Juana Lerma, who at that time had been the

appellant’s wife for twelve years. (CR 87). Juana told the officer that she

had gotten a phone call from an unknown woman, and the woman had

claimed to be the appellant’s “girlfriend.” (CR 87). Juana said that she

and the appellant had a “heated verbal argument,” after which Juana

went to a friend’s residence. (CR 87).

      [Juana] stated that the [appellant] later came to her friend’s
      residence and forced her to leave with her [sic.]. She stated
      that she attempted to get out of their vehicle and the
      [appellant] struck her several times, causing her physical
      pain. [Juana] stated that once they got back to their
      residence they continued to argue. [Juana] stated that the
      [appellant] grabbed her around the neck and throat and
      choked her causing her physical pain. I observed that
      [Juana] had red marks around her neck and upper chest
      area. [Juana] stated that the [appellant] then grabbed her by
      the hair and pulled it forcefully causing her pain.

      [Juana] stated that the [appellant] has assaulted her
      numerous times over the past twelve years. She stated that
      she has never called before because she depended on the
      [appellant] financially but that now she is just tired of the
      assault and abuse.

(CR 87-88).

      The appellant’s affidavits tell a different story. According to an

affidavit from Juana, on May 4, 2002 she received a phone call from a
                                    2
woman claiming she and the appellant “had been seeing each other

romantically.” (CR 35). Juana said that she and the appellant had an

argument about this, and during this argument, she called 911 and said

that the appellant had “pushed” her, even though he had not. (CR 35-36).

When police arrived, Juana told them that the appellant “pushed” her.

(CR 36). The police arrested the appellant, and between that time and

February 2014 Juana never spoke about the matter to anyone — not to

the appellant’s trial counsel, not to any other police officer, not to

anyone from the prosecutor’s office, and not to the appellant, who

moved back in with her after he bailed out of jail and lived with her

during the pendency of the charges. (CR 36-37, 40).

      According to the appellant’s affidavit, on May 4, 2002, he had an

argument with Juana regarding his suspected infidelity, and during that

argument he “never threatened, pushed, touched, or hit Juana.” (CR 39).

Juana then went into their home and sometime later police arrived. (CR

39-40). The appellant told the police that he did not touch Juana, but the

police arrested him and took him to the station. (CR 40).

      The appellant bonded out of jail and hired Manuel Barrera as his

attorney. (CR 40). The appellant told Barrera that he did not harm Juana.

(CR 40). Barrera never spoke to Juana or the couple’s son, Edgar. (CR
                                    3
40). Instead, Barrera advised that his case had been assigned to “a good

judge,” and if he wanted to go to trial he would have to attend many

more court dates than if he pleaded guilty. (CR 40). The appellant now

believes that if Barrera had advised him of the possibility of going to a

jury trial he would have done so because of “the lack of any physical or

other evidence supporting Juana’s claim that [he] pushed her.” (CR 40).

The appellant now claims that he pleaded guilty only “[b]ecause [he] did

not have any knowledge that at a jury trial [he] would have had a chance

at winning the case ….” (CR 41).

      The third affidavit was from the appellant and Juana’s son, Edgar

Lerma. (CR 29-30). According to this affidavit, on May 4, 2002 Edgar

(then fourteen years-old) was standing inside the door and heard his

parents having an argument outside. (CR 35). Edgar did not hear any

“sounds of violence or physical fighting” during this argument; when

Juana came inside he “did not see any signs of physical pain, discomfort,

or injury ….” (CR 35).


                         Summary of the Argument

      The appellant presents on appeal the same three claims that he

presented in the trial court, though the State somewhat takes issue with


                                   4
how they have been presented. The appellant purports to raise two

types of “actual innocence” claims and an ineffective-assistance claim.

However, one of the “actual innocence claims” is a Schlup claim which is

not an “actual innocence” claim at all; Schlup claims provide a method

— if the court believes the defendant is probably innocent — for federal

courts to address claims of trial error that would otherwise be barred by

federal procedural rules. Because Schlup does not provide a standalone

basis for relief, it is not a standalone claim. The State will address the

appellant’s claims in what it believes to be the most logical order.

      In his first point of error, the appellant claims that the trial court

erred in rejecting his actual innocence claim. However, the trial court

found the appellant’s evidence not credible. Because the trial court’s

credibility finding is adequately supported by the record, the trial court

was correct to reject the appellant’s actual innocence claim.

      In his second point of error, the appellant claims that the trial

court erred in rejecting his ineffective-assistance claim. However, the

appellant waited more than twelve years to make this claim, by which

time trial counsel had no memory of the case and could not respond to

the appellant’s claims. The appellant offered no explanation for why he

did not assert this claim earlier. Accordingly, this claim is barred by
                                     5
laches, and the trial court was correct to reject it as such. To whatever

degree Schlup could provide a basis for addressing this claim on its

merits, the trial court was correct in not doing so because the appellant

produced no credible evidence of his innocence.


                           Reply to Point One


The appellant did not conclusively prove his innocence. His
affidavits failed to rebut the State’s evidence. Moreover, in light of
the police officer’s report the trial court had a basis for concluding
that the appellant’s evidence was not credible.

    I.   Standard of Review: The trial court’s findings of fact are
         entitled to near-total deference, and its ultimate decision
         is reviewed only for an abuse of discretion.

      Code of Criminal Procedure Article 11.072 “establishes the

procedures for an application for a writ of habeas corpus in a felony or

misdemeanor in which the applicant seeks relief from an order or a

judgment of conviction ordering community supervision.” TEX. CODE

CRIM. PROC. art. 11.072 § 1. An Article 11.072 writ is litigated through the

trial court, and the trial court judge is the sole finder of fact. Ex parte

Garcia, 353 S.W.3d 785, 788 (Tex. Crim. App. 2011). Accordingly, an

appellate court addressing an Article 11.072 writ gives “almost total

deference to a trial court’s determination of the historical facts that the


                                     6
record supports ….” Id. at 787 (quoting Guzman v. State, 955 S.W.2d 85,

89 (Tex. Crim. App. 1997)).

      This level of deference applies even if the trial court makes its

factual determinations based on affidavits. Ex parte Ali, 368 S.W.3d 827,

841 (Tex. App.—Austin 2012, pet. ref’d). The trial court is entitled to

make credibility determinations on affidavits, and “is not required to

believe factual statements contained within an affidavit, even when they

are uncontradicted by other affidavits.” Shanklin v. State, 190 S.W.3d 154,

167 (Tex. App.—Houston [1st Dist.] 2005), pet. dism’d, improvidently

granted, 211 S.W.3d 315 (Tex. Crim. App. 2007).

      An appellate court reviewing a trial court's ruling on an Article

11.072 writ must review the record evidence in the light most favorable

to the trial court's ruling and must uphold that ruling absent an abuse of

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

Ex parte Zantos-Cuebas, 429 S.W.3d 83, 87 (Tex. App.—Houston [1st

Dist.] 2014, no pet.).




                                    7
   II.   Argument

            A. The appellant’s Herrera claim fails because he did
               not produce evidence conclusively showing his
               innocence.

      A habeas applicant’s assertion that he is entitled to have his

conviction reversed because he is actually innocent of the offense for

which he was convicted is called an Herrera claim, named after Herrera

v. Collins, 506 U.S. 390 (1993). Granting relief on such a claim is

appropriate only if the applicant shows 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.” Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App.

2006) (quoting Ex parte Tuley, 109 S.W.3d 388, 392 (Tex. Crim. App.

2002).

      This showing must overcome the presumption that the conviction

is valid and it must unquestionably establish the applicant's innocence.

Ibid. Because of the respect that the legal system owes to legally-

obtained verdicts, making such a showing is “a Herculean task.” Ibid. The

Court of Criminal Appeals has given as examples of the sort of evidence

that is capable of supporting such a finding: “trustworthy witness

recantations … exculpatory scientific evidence, trustworthy eyewitness

                                    8
accounts, and critical physical evidence.” Ex parte Franklin, 72 S.W.3d

671, 678 n.7(Tex. Crim. App. 2002). Though this list is non-exclusive, the

focus on reliability and credibility emphasizes that habeas courts are

not to lightly revisit jury verdicts.

      In this case, the appellant produced three affidavits: one from him,

one from the complainant, and one from their son. The trial court found

those affidavits not credible, and this Court is obliged to defer to that

finding.

      Even if the trial court found the affidavits credible, they would not

support a finding of actual innocence. The affidavit from the appellant is

of no value here; a defendant’s statement that he is innocent is not the

sort of evidence that will support a Herrera claim. The affidavit from the

son provides no affirmative evidence of innocence; the closest it gets is

to say that the son did not witness the appellant beat the complainant.

      The complainant’s recantation is the appellant’s best evidence, but

it is still insufficient to support a finding of actual innocence. In Ex parte

Navarilo, the Court of Criminal Appeals addressed an Herrera claim in

which the complaining witness recanted her accusations. Ex parte

Navarilo, 433 S.W.3d 588 (Tex. Crim. App. 2014). The evidence of guilt at

trial had consisted of the complainant’s testimony as well as testimony
                                        9
from others regarding injuries the complainant had suffered from

Navarilo’s sexual assault. Id. at 560-63. At the habeas hearing, thirteen

years after the trial, the complaining witness said that Navarilo had not

committed the offense, and she had only testified that he did because

her grandmother had put her up to it. Id. at 564-66. The trial court found

that her recantation was credible — indeed, more credible than her trial

testimony had been — and recommended that relief be granted. Id. at

566.

       The Court of Criminal Appeals rejected this, however, because the

recantation did not include as much detail as had the complainant’s trial

testimony, and because the recantation did not explain away the

physical evidence presented at trial. Id. at 568-71. Accordingly, the court

concluded that a reasonable juror, when confronted with the trial

evidence and the recantation evidence, could still have convicted

Navarilo, thus he had not proven he was actually innocent.

       This case is quite similar. The complainant’s affidavit, on its own,

seems to show that the appellant was innocent, but it provides no

explanation for the injuries that the police officer observed when he

responded to the call. Compare CR 35-37 to CR 87-88. Moreover, the

recanting affidavit is less detailed than was the statement that the
                                    10
complainant made to the police officer: The statement to the officer

described the complainant going to a friend’s house and the appellant

forcing her to go home, it specified that the appellant had been abusing

her for years, and it specified that the appellant assaulted her in several

ways (striking, choking, and pulling hair); the recanting affidavit merely

said that on one particular date at one particular place the appellant did

not assault her by pushing her. Faced with the evidence that the State

had at the time the appellant pled guilty, a rational juror could have

discounted the complainant’s later recantation and still concluded that

the appellant had assaulted her. Accordingly, even if the appellant’s

affidavits were credible they would not support his Herrera claim.


            B. This Court should reject the appellant’s “Schlup-type
               claim of innocence” because Schlup is irrelevant to
               this case.

      In his first point, which relates to his claim of “actual innocence,”

the appellant presents what he calls his “Schlup-type claim of

innocence.” (Appellant’s Brief at 7-8). In Schlup v. Delo, the Supreme

Court dealt with a habeas applicant whose claims were barred by

federal rules of procedure because he had failed to raise the claim in a

previous writ application. Schlup v. Delo, 513 U.S. 298, 301 (1995).


                                    11
However, Schlup accompanied his allegations of trial error with

evidence tending to show that he was actually innocent of the charged

offense. Id. at 306-11. The Supreme Court held that, because habeas is

an equitable remedy, if a petitioner whose claims of trial error are

otherwise barred by the federal prohibition on subsequent writ

applications can produce evidence showing that “more likely than not”

he is actually innocent, the habeas court should waive application of that

prohibition and address his allegations of trial error on the merits. Id. at

326-27.

      Although Texas courts have developed the unfortunate habit of

referring to “Schlup actual innocence claims,” Schlup itself did not

involve a claim that the applicant should be released based on his

innocence. The claim in Schlup involved nothing more than waiving a

federal procedural rule for the narrow class of applicants who can

provide substantial proof of their innocence; to gain relief on a Schlup

claim a petitioner must still show that there was constitutional error at

his trial. Schlup described itself as opening a procedural “gateway” for

certain petitioners to present their claims of constitutional error at trial.

Id. at 316.



                                     12
      Moreover, Schlup was a federal case that created an equitable

exception to federal procedural rules; its application to a state habeas

case, which is controlled by state statutory law, is not obvious. See Ex

Parte Villegas, 415 S.W.3d 885, 887 (Tex. Crim. App. 2013) (Price, J.,

concurring). Even if this case involved a procedural bar on the appellant

raising his claim — which it does not — Section 9 of Article 11.072

governs subsequent writs in cases like the appellant’s, and Schlup

(which was not decided on constitutional grounds) would be of no

effect.

      There is not now and there never has been any procedural bar to

the appellant raising his “actual innocence” or ineffective-assistance

claims. Schlup has no relevance to this case. See Villegas, 415 S.W.3d at

886-87 (per curiam) (where petitioner raises claim on initial petition,

consideration of “Schlup innocence claim” is irrelevant because there is

no procedural bar to overcome).




                                   13
                           Reply to Point Two


The appellant’s ineffective-assistance claim is barred by laches
because he waited more than twelve years to raise it and he has
offered no reason to justify the delay.

      In his habeas application, the appellant alleged that his trial

counsel had rendered ineffective assistance, and that his guilty plea was

involuntary because of this ineffective assistance. (CR 19-24). The trial

court ordered trial counsel to file an affidavit answering numerous

questions, but in his affidavit trial counsel replied that he had no

recollection of this case whatsoever and he had lost his files from 2002.

(CR 82-86). The trial court found that the appellant’s “unreasonable

delay of almost twelve years in pursuing his habeas claim … prejudiced

[the State] in its ability to respond,” thus the appellant’s claim was

barred by the doctrine of laches. (CR 6).

      Laches is an equitable doctrine that bars a party’s claim if that

party’s unreasonable delay in raising the claim has resulted in prejudice

to the opposing party. Ex parte Perez, 398 S.W.3d 206, 210 (Tex. Crim.

App. 2013) (citing Ex parte Carrio, 992 S.W.2d 486, 487-88 (Tex. Crim.

App. 1999)). The Court of Criminal Appeals has long held that laches can

apply to post-conviction writs of habeas corpus, and in a recent case


                                    14
noted that laches applies to Article 11.072 writs. See Ex parte Bowman,

447 S.W.3d 887, 888 (Tex. Crim. App. 2014).

      In this case, the appellant waited twelve years to file his writ

petition. See Perez, 398 S.W.3d at 216 (noting general guideline that the

State’s ability to retry a defendant is diminished after five years).

Neither in the trial court nor on appeal has he made any effort to justify

this delay. All of the information he presented in his habeas petition has

been available to him since his guilty plea; he lived with the complainant

and his other supposedly exculpatory witness during the pendency of

his charges, so whether or not his attorney spoke with them should have

been readily ascertainable. (See CR 40 (appellant’s affidavit criticizing

defense counsel for not speaking with complainant and witness who

lived in same home as appellant)).

      Because of the appellant’s delay, the State’s ability to respond to

his claim has been prejudiced: Trial counsel’s time-related memory and

document loss make it impossible to obtain any credible evidence as to

his actions and the reasons for them. The trial court’s conclusions that

the appellant’s claim is barred by laches is supported by the record, and




                                     15
accordingly this Court should reject the appellant’s second point of

error. 2




2 It might be tempting to ask whether Schlup would provide a basis for addressing
the appellant’s claim despite laches. The State urges this Court to resist that
temptation. First, the interaction between Schlup and laches is a novel matter that
the appellant has not briefed and on which the State can find no authority; neither
this Court nor the State should make the appellant’s argument for him. Second,
Schlup works to circumvent federal procedural rules, but laches is an equitable
doctrine that is substantive in nature. See Ex parte Smith, 444 S.W.3d 661, 665 (Tex.
Crim. App. 2014) (explaining substantive reasons for applying laches). Third, even if
Schlup could apply to circumvent laches, the trial court found the evidence of the
appellant’s innocence to be not credible and this Court must defer to that
determination.

                                        16
                              Conclusion

      The State respectfully submits that all things are regular and the

judgment of the trial court should be affirmed.

                                              DEVON ANDERSON
                                              District Attorney
                                              Harris County, Texas


                                              /s/ C.A. Morgan
                                              CLINTON A. MORGAN
                                              Assistant District Attorney
                                              Harris County, Texas
                                              1201 Franklin, Suite 600
                                              Houston, Texas 77002
                                              713.755.5826
                                              Texas Bar No. 24071454




                                   17
                 Certificate of Compliance and Service

      I certify that, according to Microsoft Word’s word counting

function, the portion of this brief for which Rule of Appellate Procedure

9.4(i)(1) requires a word count contains 3,154 words.

      I also certify that I have requested that efile.txcourts.gov

electronically serve a copy of this brief to:

      Lance Nguyen
      lancehac2@gmail.com

                                                /s/ C.A. Morgan
                                                CLINTON A. MORGAN
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002-1923
                                                (713) 755-5826
                                                Texas Bar No. 24071454


Date: July 9, 2015




                                     18
