       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-19-00058-CR


                               Ex parte Gaspar Benavides Govea


                  FROM THE COUNTY COURT OF LLANO COUNTY
      NO. WH-025/15478, HONORABLE MARY S. CUNNINGHAM, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Gaspar Benavides Govea was charged with unlawful possession of less than two

ounces of marijuana. See Tex. Health & Safety Code § 481.121(a), (b)(1). After he was charged,

Govea entered a plea of nolo contendere per the terms of a plea-bargain agreement, and the trial

court deferred his adjudication of guilt and placed him on community supervision for four

months. Many years later, Govea filed an application for writ of habeas corpus challenging the

propriety of the judgment deferring his adjudication of guilt, his plea, and his waiver of his right

to an attorney. See Tex. Code Crim. Proc. art. 11.072. After convening a hearing on the writ

application, the trial court denied the application. In four issues on appeal, Govea challenges the

trial court’s ruling. We will affirm the order by the trial court denying Govea’s application for

writ of habeas corpus.


                                        BACKGROUND

               As set out above, Govea was charged with possession of a controlled substance,

and in 2013 he entered a plea of nolo contendere per the terms of a plea agreement with the
State. Under the agreement, Govea agreed to waive, among other things, his rights to an attorney

at trial, to a trial by jury, and to an appeal. The signed waiver also specified that Govea fully

understood “the consequences of [his] action.” In accordance with the plea agreement, the trial

court deferred Govea’s adjudication of guilt and placed him on community supervision for four

months. Govea successfully completed his community supervision, and the trial court issued an

order discharging him from community supervision. See Tex. Code Crim. Proc. art. 42A.111(a),

§ 5(c) (explaining that “the judge shall dismiss the proceedings against the defendant and

discharge the defendant” “if the judge has not proceeded to adjudication of guilt” following

“expiration of a period of deferred adjudication community supervision”). Several years later,

Immigration and Customs Enforcement officers took Govea into custody. While in custody,

Govea filed an application for writ of habeas corpus related to the 2013 case. See id. art. 11.072.

               In his writ application, Govea argued that the 2013 judgment should be vacated

and also requested that the trial court “set aside” the waivers that he signed as part of the plea

agreement because he did not knowingly, intelligently, and voluntarily enter his plea or agree to

waive his rights. When seeking habeas relief, Govea stated that the trial court did not inform

him during the 2013 proceeding that entering a plea of nolo contendere to the possession charge

might result in his deportation or other immigration consequences. Relatedly, Govea urged that

before entering his plea, the State encouraged him to plead nolo contendere and to waive his

right to an attorney but failed to disclose to him that there were potential deportation consequences.

As support for his arguments, Govea attached to his writ application several exhibits, including

his affidavit in which he described his interactions with the trial court and with the State before

entering his plea.



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               The State filed a response to Govea’s writ application and argued that the trial

court was not required to admonish Govea of potential deportation consequences because

the charged offense was a misdemeanor. Further, the State asserted that Govea knowingly,

intelligently, and voluntarily pleaded nolo contendere to the charged offense and agreed to

waive, among other rights, his right to an attorney. Alternatively, the State urged that Govea’s

claims were barred by the doctrine of laches.

               As support for its contentions, the State attached to its response an affidavit from

Officer Eric Van Pelt who arrested Govea and investigated the 2013 case. In his affidavit,

Officer Van Pelt explained that he no longer remembered the underlying offense. Further, the

State attached an affidavit from another law-enforcement officer specifying that the evidence

collected in the underlying offense had all been destroyed. Moreover, the State included as

exhibits a judgment and other paperwork pertaining to a 2010 possession conviction in which

Govea was represented by counsel and also entered a plea of nolo contendere per a plea-bargain

agreement. The signed plea paperwork stated, among other things, that “any plea of guilty or no

contest may result in deportation, exclusion from admission to the country, and/or the denial of

naturalization under federal law.” The 2010 judgment specified that Govea was admonished

regarding the potential consequences of his plea.

               The trial court convened a hearing regarding Govea’s writ application, but no

witnesses testified during the hearing. After the hearing, the trial court denied Govea’s writ

application and issued the following findings of fact and conclusions of law:


       Findings of Fact

       2. Applicant signed a “Waiver of An Attorney” and then Applicant pled “no
       contest” pursuant to a plea agreement, to the Class B misdemeanor offense of

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possession of marijuana [in the 2013 case].

...

7. Prior to Applicant’s plea to the above charge, Applicant was arrested on May 17,
2009 in Burnet County, Texas for [another] . . . possession of marijuana [charge].

8. On February 25, 2010 Applicant in [the Burnet County case], represented by
counsel and pursuant to a plea negotiation, pled “Nolo Contendere” and was placed
on 8 months Deferred Adjudication community supervision probation . . . . In that
proceeding Applicant was informed in the plea papers that if he was a non-citizen
that a plea of guilty or no contest may result in his deportation, exclusion from
admission to this country, and/or the denial of naturalization under federal law.

9. Llano County Sheriff’s office is not in possession of the seized marijuana [in
the 2013 case] as it was destroyed.

10. Llano County sheriff deputy Eric Van Pelt does not recollect the details of the
stop, investigation and arrest of Applicant [for the 2013 case].

...

Conclusions of Law

25. . . . Applicant pled to an identical charge 3 years earlier in which he was
represented by counsel, advised of his rights and the consequence of his plea with
respect to deportation proceedings. . . . Further, he stated [that he fully understood
the consequences] when he signed the Waiver of an Attorney [in the 2013 case]
....

26. The Court further finds the Application is barred by la[]ches. Applicant
successfully completed his community [supervision] and was discharged on July 17,
2013. The evidence in this case, marijuana, was destroyed. The arresting officer
does not recollect the details of the stop, investigation and arrest of Applicant [in
the 2013 case]. The State, if the court grants the Application, would have to
proceed to trial without the marijuana and the testimony of the arresting officer as
to the details of the offense, hence the State would be prejudiced from achieving
justice. This prejudice was solely caused by Applicant waiting over 5 years to file
his application. Applicant has not provided any valid reason for his filing a late
petition for relief. As stated in Perez the State possesses a legitimate interest in
the “repose and finality of its convictions.” . . . Applicant has not shown or
demonstrated any fact that indicates that his claim is not barred by la[]ches.


       Govea appeals the trial court’s order denying his habeas application.



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                    STANDARD OF REVIEW AND GOVERNING LAW

               An individual convicted of a felony or misdemeanor may seek habeas “relief

from an order or judgment of conviction ordering community supervision.” Tex. Code Crim.

Proc. art. 11.072, § 1. When a person files a writ application, he “must be, or have been, on

community supervision, and the application must challenge the legal validity of . . . the

conviction for which or order in which community supervision was imposed” or “the conditions

of community supervision.” Id. art. 11.072, § 2(b). “[T]he completion of an applicant’s sentence

or probationary term does not deprive the trial court of jurisdiction if the applicant remains

subject to collateral legal consequences resulting from his conviction or sentence.” Ex parte Ali,

368 S.W.3d 827, 831 (Tex. App.—Austin 2012, pet. ref’d). Collateral legal consequences include

detention by immigration officials and potential deportation. Phuong Anh Thi Le v. State,

300 S.W.3d 324, 326 (Tex. App.—Houston [14th Dist.] 2009, no pet.).

               Appellate courts review a trial court’s ruling on an application for writ of habeas

corpus under an abuse-of-discretion standard of review. Kniatt v. State, 206 S.W.3d 657, 664

(Tex. Crim. App. 2006). “A trial court abuses its discretion when its ruling is arbitrary or

unreasonable.” Gaytan v. State, 331 S.W.3d 218, 223 (Tex. App.—Austin 2011, pet. ref’d). But

a trial court does not abuse its discretion if its ruling lies within “the zone of reasonable

disagreement.” Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008); see Lopez v. State,

86 S.W.3d 228, 230 (Tex. Crim. App. 2002). Under that standard, appellate courts “review the

record evidence in the light most favorable to the trial court’s ruling.” Kniatt, 206 S.W.3d at 664.

               To succeed under a post-conviction writ of habeas corpus, “the applicant bears the

burden of proving, by a preponderance of the evidence, the facts that would entitle him to relief.”

Ex parte Ali, 368 S.W.3d at 830. In habeas corpus proceedings, “[v]irtually every fact finding

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involves a credibility determination,” and “the fact finder is the exclusive judge of the credibility

of the witnesses.” Ex parte Mowbray, 943 S.W.2d 461, 465 (Tex. Crim. App. 1996). For habeas

proceedings under article 11.072, “the trial court is the sole finder of fact,” and appellate courts

afford “almost total deference to a trial court’s factual findings when supported by the record,

especially when those findings are based upon credibility and demeanor.” Ex parte Ali, 368 S.W.3d

at 830. This deferential review applies even when the findings are based on affidavits rather

than live testimony. Manzi v. State, 88 S.W.3d 240, 244 (Tex. Crim. App. 2002). “When the

trial court’s findings of fact in a habeas corpus proceeding are supported by the record, they

should be accepted” by the reviewing court. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex.

Crim. App. 2006).


                                          DISCUSSION

               In his first two issues on appeal, Govea contends that the trial court erred by not

vacating the 2013 judgment, the waiver of counsel that he signed, and the plea agreement

because he did not knowingly, voluntarily, and intelligently enter his plea or waive his rights. In

his third issue, Govea argues that the trial court should have granted his requested relief because

he was not admonished in the 2013 proceeding that entering his plea of nolo contendere carried

the risk of deportation or other immigration consequences. In his final issue, Govea asserts that

the doctrine of laches did not bar the relief that he sought in his writ application. Because the

resolution of his final issue is dispositive of the appeal, we now address that issue.


Laches

               When arguing that his habeas claims were not barred by the doctrine of laches,

Govea points to portions of his affidavit that he attached to his writ application in which he

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stated that he agreed to plead nolo contendere to the possession offense in 2013 after being

informed by the State that his deferred adjudication would not be part of his record and would

not qualify as a conviction for any purpose if he successfully completed his community

supervision. Moreover, Govea asserted in his affidavit and on appeal that he was unaware that

his plea of nolo contendere would qualify as a conviction for deportation purposes even if he

successfully completed his community supervision. See 8 U.S.C.A. §§ 1101(a)(48)(A) (explaining

that “[t]he term ‘conviction’ means, with respect to an alien, a formal judgment of guilt of the

alien entered by a court or, if adjudication of guilt has been withheld, where . . . a judge or jury

has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has

admitted sufficient facts to warrant a finding of guilt”), 1227(a)(2)(B)(i) (providing that any alien

who “has been convicted of a violation of . . . any law or regulation . . . relating to a controlled

substance . . . , other than a single offense involving possession for one’s own use of 30 grams or

less of marijuana, is deportable”). Further, Govea argues that he did not become aware of any

potential deportation consequences until years later. Additionally, Govea notes that although he

filled out paperwork requesting a court appointed attorney shortly before he entered his plea in

the 2013 case, he was not provided with an attorney and instead waived his right to counsel and

to a jury trial after the State’s attorney misrepresented the consequences of his pleading nolo

contendere. For all of these reasons, Govea contends that it was inequitable for the trial court to

deny him his requested relief based on the doctrine of laches.

               The writ of habeas corpus is an extraordinary remedy. See Ex parte Smith,

444 S.W.3d 661, 666 (Tex. Crim. App. 2014). “[H]abeas is governed by the elements of equity

and fairness, and those elements require a consideration of unreasonable delay.” Ex parte Bowman,

447 S.W.3d 887, 888 (Tex. Crim. App. 2014). Accordingly, the common-law doctrine of laches

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applies to habeas applications. See Pastenes v. State, No. 03-16-00102-CR, 2017 WL 2928112,

at *2 (Tex. App.—Austin July 6, 2017, no pet.) (mem. op., not designated for publication). The

doctrine has been defined as meaning “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.” Ex parte

Perez, 398 S.W.3d 206, 210 (Tex. Crim. App. 2013) (quoting Ex parte Carrio, 992 S.W.2d 486,

487 n.2 (Tex. Crim. App. 1999)). When determining whether laches applies, courts should “keep,

at the fore, the State’s and society’s interest in the finality of convictions[] and consider the

trial participants’ faded memories and the diminished availability of evidence.” Ex parte Smith,

444 S.W.3d at 666.

                However, “delay alone is insufficient to establish the laches bar.”           Ex parte

Bowman, 447 S.W.3d at 888. Instead, “courts should consider, among other things, [1] the length

of applicant’s delay in requesting equitable relief, [2] the reasons for the delay, . . . [3] the degree

and type of prejudice borne by the State resulting from applicant’s delay . . . . [and 4 whether

the] delay may be excused.” Ex parte Smith, 444 S.W.3d at 667. Prejudice in this context

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

State’s ability to retry a defendant.” Id. at 666. A “delay may be excused when the record shows

that (1) an applicant’s delay was not unreasonable because it was due to a justifiable excuse or

excusable neglect; (2) the State would not be materially prejudiced as a result of the delay; or

(3) the applicant is entitled to equitable relief for other compelling reasons, such as new evidence

that shows he is actually innocent of the offense.” Id. at 667. Laches is a question of fact, and as



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specified earlier, the trial court is the sole finder of fact in an article 11.072 habeas proceeding.

Ex parte Bowman, 447 S.W.3d at 888.

               The record before this Court supports the trial court’s determination that Govea’s

writ application was barred by laches. The record reflects that Govea did not seek habeas relief

until more than five years after he entered his plea of nolo contendere and waived his right to

appeal and more than five years after he was discharged from community supervision. See

Ex parte Perez, 398 S.W.3d at 216 n.12 (explaining “that delays of more than five years may

generally be considered unreasonable in the absence of any justification for the delay”); see also

Ex parte Vasquez, 499 S.W.3d 602, 614 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d)

(stating that five years after conviction becomes final, availability of State’s evidence and

memories of individuals involved become diminished).

               Moreover, although Govea asserted in his affidavit that the State incorrectly told

him that his placement on deferred-adjudication community supervision following his plea

would not constitute a conviction for any purpose if he completed his community supervision

and although he argued that he relied on that communication, the trial court was the fact finder

in this proceeding and was entitled to determine what, if any, weight to give to the statements

in his affidavit, and the trial court rejected his justification for the delay.       See Pastenes,

2017 WL 2928112, at *1, *3 (upholding trial court’s determination that applicant “first suffered

harm from his conviction when he was required to comply with the conditions of his probation,

not almost two decades later” when he “became eligible for legal residency”); Ex parte Tavakkoli,

No. 09-14-00358-CR, 2015 WL 993654, at *3 (Tex. App.—Beaumont Mar. 4, 2015, pet. ref’d)

(mem. op., not designated for publication) (rejecting argument that applicant’s claims were not

barred by laches because his right to relief did not become ripe until he became subject to

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deportation proceedings); see also Ex parte Empey, 757 S.W.2d 771, 775 (Tex. Crim. App.

1988) (explaining that sworn allegations alone were not sufficient to prove habeas claims). In

making that determination, the trial court was aided by the contents of the waiver Govea signed

in the 2013 case specifying that he fully understood the consequences of his actions, by the

judgment from the 2010 case stating that he was admonished of the consequences of entering

his plea of nolo contendere, and by the signed plea-bargain documentation from the 2010 case

reflecting that he was specifically admonished that entering a plea of nolo contendere to the

misdemeanor possession charge could result in deportation or other immigration consequences.

See State v. Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013) (noting that there is “normal

presumption that recitals in the written judgment are correct”); cf. Kniatt, 206 S.W.3d at 664

(stating that “[a] defendant’s sworn representation that his guilty plea is voluntary ‘constitute[s]

a formidable barrier in any subsequent collateral proceedings’” (quoting Blackledge v. Allison,

431 U.S. 63, 73-74 (1977))).

               Finally, the trial court specifically determined that the State would be prejudiced

by granting the requested relief because the evidence forming the basis for the charge had been

destroyed and because the officer who arrested Govea and investigated the crime no longer

had any recollection of the events in question. See Ex parte Vasquez, 499 S.W.3d at 612, 614

(upholding trial court’s determination that applicant’s habeas claims that his plea was

involuntary and that he was denied effective assistance of counsel were barred by laches, in part,

because memory of witnesses had faded and because files had been destroyed); Ex parte

Tavakkoli, 2015 WL 993654, at *2, *3 (affirming trial court’s decision that State would be

prejudiced by requested habeas relief and noting that marijuana had “been destroyed” and that

“the arresting officer likely ha[d] no independent recollection of events”).

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

deferring to the trial court’s findings, we conclude that the record supports the trial court’s

determination that Govea’s habeas claim is barred by laches and that the trial court did not

abuse its discretion by denying his application for writ of habeas corpus.        In light of our

resolution of Govea’s fourth issue on appeal, we need not address his first three issues. See Tex.

R. App. P. 47.1.


                                        CONCLUSION

               For all the reasons previously given, we affirm the trial court’s order denying

Govea’s application for writ of habeas corpus.



                                             __________________________________________
                                             Thomas J. Baker, Justice

Before Justices Goodwin, Baker, and Triana
 Concurring Opinion by Justice Goodwin

Affirmed

Filed: August 21, 2019

Do Not Publish




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