                                       NUMBER
                                    13-09-00506-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG

                          EX PARTE CRISTELA GARCIA


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


               MEMORANDUM OPINION ON REMAND
     Before Chief Justice Valdez and Justices Rodriguez and Garza
          Memorandum Opinion on Remand by Justice Garza
       This case is before us on remand from the Texas Court of Criminal Appeals.

Appellee, Cristela Garcia, filed an application for writ of habeas corpus alleging that her

guilty plea to felony theft twenty-five years ago was involuntary. See TEX. CODE CRIM.

PROC. ANN. art. 11.072 (West 2005). The trial court granted relief. This Court reversed,

finding that appellee’s testimony alone was insufficient to support the trial court’s ruling.

See State v. Garcia, No. 13-09-00506-CR, 2010 Tex. App. LEXIS 7119, at *13 (Tex.

App.—Corpus Christi Aug. 31, 2010) (mem. op., not designated for publication), rev’d

by Ex parte Garcia, No. PD-1658-10, 2011 Tex. Crim. App. LEXIS 1161, at *11 (Tex.
Crim. App. Sept. 14, 2011).

       The court of criminal appeals reversed, holding that ―an applicant’s live, sworn

testimony can be a basis for upholding a trial court’s decision to grant relief in an article

11.072 habeas proceeding.‖ See Garcia, 2011 Tex. Crim. App. LEXIS 1161, at *11.

The court of criminal appeals remanded the case to this Court to decide: (1) ―whether

appellee’s testimony was in fact a sufficient basis for upholding the trial court’s

decision,‖ and (2) whether appellee’s claim for habeas relief is barred by the doctrine of

laches. See id. We affirm the trial court’s judgment.

                                      I. BACKGROUND

       We adopt the background facts as stated by the court of criminal appeals:

              In 1986 at the age of 18, appellee pled guilty to theft of property
       valued at more than $750 and less than $20,000, a third-degree felony.
       She was sentenced to five years, but imposition of that sentence was
       suspended and she was placed on probation. She was released from
       probation in 1990. In 2009, she filed an application for habeas corpus
       under article 11.072 [of the code of criminal procedure], alleging that her
       plea was involuntary because she did not know that she was being
       prosecuted as an adult and was too confused and immature to understand
       the court's admonishments or the consequences of her plea.

              At an evidentiary hearing on her writ application, appellee testified
       that when she pled guilty she believed she was doing so as a juvenile, she
       did not understand the consequences of her plea, and she was instructed
       by her counsel just ―to sign and that [she would] get probation.‖ She
       further testified that she learned of her status as a felon only when she
       was denied an application to carry a concealed handgun. She also
       explained that, since her guilty plea, she had served as a juror on two or
       three occasions and was a state notary. The State explained that the
       presiding judge from the 1986 guilty plea had since died and the reporter's
       records no longer existed.

              The trial court entered findings of fact and conclusions of law in
       appellee's favor and granted relief.

Id. at **1–3.

       The trial court entered the following findings of fact and conclusions of law:
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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 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[d] 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.

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Based on its findings and conclusions, the trial court entered the following 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.‖


                    II. EVIDENCE SUPPORTING TRIAL COURT’S RULING

   A. Standard of Review and Applicable Law

       We first address, as the court of criminal appeals instructed, ―whether appellee’s

testimony was in fact a sufficient basis for upholding the trial court’s decision.‖ Id. at

*11. An appellate court reviewing a trial court's ruling on a habeas claim 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). The court of criminal appeals clarified that the Guzman standard

applies in the context of an article 11.072 habeas case. See Garcia, 2011 Tex. App.

LEXIS 1161, at *6 (―In an article 11.072 habeas case, however, the trial judge is the

sole finder of fact. There is less leeway in an article 11.072 context to disregard the

findings of a trial court. . . . [I]t makes sense as a matter of logic that the Guzman

standard would control.‖) (footnotes omitted) (citing Guzman v. State, 955 S.W.2d 85,

89 (Tex. Crim. App. 1997)).     The court of criminal appeals restated the applicable

Guzman standard as follows:

       ―[A]s a general rule, the appellate courts, including this Court, should
       afford almost total deference to a trial court's determination of the
       historical facts that the record supports especially when the trial court's
       fact findings are based on an evaluation of credibility and demeanor.‖ In
       stating this ―general rule‖ in Guzman, we did not explicitly limit it to the
       suppression–of–evidence context before us in that case, and we have
       applied it in numerous other contexts. Under the rule of deference, a fact–
       finder can rule in a defendant's favor based solely upon the defendant's
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       own testimony if crediting the defendant's testimony would logically show
       that the defendant is entitled to relief.

Id. at **3–4 (footnotes omitted) (quoting Guzman, 955 S.W.2d at 89).

   B. Discussion

       Here, the trial court found that appellant’s guilty plea was made involuntarily,

unintelligently, and unknowingly.     This finding is supported by the record because

appellee testified that she: (1) was unaware when she pleaded guilty that she was to be

found guilty as an adult; (2) signed the plea documents because she was told that if she

did, she would receive probation; and (3) ―was under the impression that [she] was a

juvenile‖ when she pleaded guilty. Appellee also testified that she recently learned that

she had an adult felony conviction on her record when she was denied a concealed

weapon license. Appellee was the only witness at the evidentiary hearing on her writ

application; the State presented no witnesses. In its findings of fact, the trial court found

that appellee’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 . . . .‖

       Viewing the evidence in the light most favorable to the trial court’s ruling, see

Kniatt, 206 S.W.3d at 664, and affording appropriate deference to the trial court's fact

findings, we hold that appellee’s testimony was sufficient to support the trial court’s

ruling. We overrule the State’s first issue.

                                        III. LACHES

       By its second issue, the State contends that the trial court abused its discretion in

granting appellee’s writ because her claim is barred by the doctrine of laches. The

State argues that it has been substantially prejudiced in its ability to respond to

appellee’s allegations because the reporter’s record of the plea proceedings is

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unavailable, the judge presiding over the plea proceedings is deceased, the State’s

attorney who handled the case no longer works at the District Attorney’s office, and it is

unlikely that anyone present at the plea proceedings would remember whether appellee

was properly admonished of the direct consequences of her guilty plea. The State also

argues that although ―[t]he trial court found [a]ppellee’s testimony [regarding jury

service] to be compelling evidence that she was unaware of her conviction at the time of

her plea,‖ appellee did not provide ―any evidence of her jury service, other than her own

self-serving testimony.‖

   A. Standard of Review and Applicable Law

       The court of criminal appeals has held that the equitable doctrine of laches

should be employed in a determination of whether to grant habeas corpus relief. Ex

parte Carrio, 992 S.W.2d 486, 488 (Tex. Crim. App. 1999) (approving the federal rules

pertaining to laches in assessing the consequences of delay in applications for writ of

habeas corpus and adopting the elements as set out by the Fifth Circuit that the State

must prove to support a claim of laches) (citing Walters v. Scott, 21 F.3d 683, 686–87

(5th Cir. 1994)).

       The doctrine of laches is based upon the maxim that equity aids the
       vigilant and not those who slumber on their rights. It is defined as neglect
       to assert 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.

Id. at 487 n.2 (internal quotations omitted).

       To prevail on a theory of laches, the State must make a particularized showing of

prejudice. Id. at 488. ―The type of prejudice the State must show is prejudice in its

ability to respond to the allegations in the petition.‖ Id. ―The doctrine of laches concerns
                                                6
prejudice, not mere passage of time,‖ id. at 488 n.3, and ―the length of delay alone will

not constitute either unreasonableness of delay or prejudice. Id. at 488. To rely on the

absence of the reporter’s record, the State must show that the substance of the record

is unavailable from other sources. Walters, 21 F.3d at 688 (―Assuming for the moment

that the death of the court reporter and unavailability of records is a possible source of

prejudice to the state, we must hold that factor legally insufficient because the state has

not proved that it was actually prejudiced. If the state wishes to establish prejudice from

the death of the court reporter and the unavailability of the court reporter's records, it

must also establish that the substance of those records is unavailable from other

sources.‖); McDonnell v. Estelle, 666 F.2d 246, 253 (5th Cir. 1982) (―[P]rejudice

resulting from the judge’s death occurs only if there are no other sources from which the

state can obtain the requisite information to counter the petitioner's claim.‖); see also Ex

parte Rodriguez, No. 2-07-079-CV, 2008 Tex. App. LEXIS 4602, at **11–12 (Tex.

App.—Fort Worth June 19, 2008, pet. denied) (mem. op.) (―The State has not shown

that the information regarding the admonishments, presumably on the trial record, could

not have been reproduced from other sources. Because the State has not made a

particularized showing of prejudice, and in the case of the judge’s alleged memory

problems that Rodriguez’s delay caused the prejudice, we reject its argument that

habeas corpus relief is barred by laches . . . .‖).

   B. Discussion

       Here, the State argued that it was prejudiced because the reporter’s record was

unavailable, but it did not show that the substance of the record is unavailable from

other sources.     Although the judge presiding at appellee’s plea proceedings is

deceased, the State did not present any evidence that the prosecuting attorney,
                                               7
appellee’s attorney, or the court reporter were unavailable to testify at the habeas

corpus proceeding. In fact, appellee’s counsel noted at the evidentiary hearing that the

lawyer who represented appellee at the plea proceedings and the State’s then

prosecuting attorney (although no longer working at the District Attorney’s office) ―are

still present and well known to this community and to this court,‖ and the State could

have subpoenaed them as witnesses, but chose not to do so.

       We conclude that the State did not show that the substance of the record was

unavailable from other sources. See Walters, 21 F.3d at 688. Therefore, because the

State did not make a particularized showing of prejudice, the trial court did not abuse its

discretion in finding that appellee’s claim was not barred due to laches. See Ex parte

Carrio, 992 S.W.2d at 488. We overrule the State’s second issue.

                                     IV. CONCLUSION

       We affirm the trial court’s judgment.




                                                   DORI CONTRERAS GARZA
                                                   Justice


Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
15th day of December, 2011.




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