 AFFIRM;     Opinion    Filed October 11,2012




                                                   In The
                                     .tnatrt uf   irah
                              Fifth 1itrirt uf Lixa,3 at t1a11ai
                                            No. 05-12-00872CR


                              EX PARTE E1)GAR OTONIEL MEDRANO


                            On Appeal from the 401st Judicial District Court
                                         Collin County, Texas
                              Trial Court Cause No. W401-82845-06-11C2


                                                OPINION
                            Before Justices ONeill, FitzGerald, and Lang-Miers
                                       Opinion By Justice FitzGerald

        Edgar Otoniel Medrano appeals the trial       Court S   order denying his second post-conviction

application for writ   of   habeas corpus. In the trial court, appellant raised the complaint that he was

illegally restrained and his conviction was invalid because his guilty plea was made involuntarily in

violation of the federal and state constitutions. We affirm.

                                               BAcKGRouND

        On January 4. 2007, appellant entered a guilty plea to the offense of possession of

methamphetamine in an amount less than one gram. The trial court placed appellant on deferred

adjudication comnnlnity supervision. On January 14. 2011. the trial court entered a judgment

adjudicating appellant’s guilt lbr the offense and assessed punishment at two years’ confinement in

state jail, probated for two years. On July 8,2011. appellant filed an application for writ of habeas
 corpus alleging ineffective assistance of counsel. The trial court denied relief on August 12. 201!

 On November Ii. 201!, appellant tiled a motion to reopen the evidence on his application. The
                                                                                               trial
 court denied the motion.

              On March 30. 20! 2. appellant filed this second application for writ of habeas corpus. In his

 application appellant alleged his guilty plea was involuntary because he entered it while suffering

from “emotional and psychological issues” arising from his childhood experiences in war-torn
                                                                                             El
Salvador. Appellant alleged his psychological issues were magnified by his decision to hire
                                                                                            as
defense counsel a childhood friend. Appellant contends his contact with counsel “unleashed a flood

of repressed memories and emotions so overwhelming that [appellant] was unable to communicate

with his attorney on any meaningful level, thus rendering him incapable of assisting with
                                                                                          the
preparation of his defense with any reasonable degree of rational understanding.” Appellant alleges

he “broke his silence” and first sought mental health treatment for his condition on September
                                                                                               30,
2011.

             As evidence of his condition. appellant submitted to the trial court a sealed report detailing

the results of a psychological assessment conducted on dates in February and April of 2012.
                                                                                            The
report diagnoses appellant with chronic positraumatic stress disorder, generalized anxiety disorder,

major depressive disorder, paranoid and avoidant personality disorders, insomnia, and severe

psychological distress related to appellant’s being separated from his family, educational problems.

and being detained in an ICE facility facing possible deportation or prison.

            The record also contains an affidavit tiled by a second attorney who represented appellant

in community supervision revocation proceedings and in his initial habeas application. Appellant’s




   1
       There is no indication in the record that appellant appealed either his conviction or the denial
                                                                                                        of his first writ application.
 second counsel swore he was not informed of or aware of appellant s experiences in El Salvador or

 any psychological, emotional, or mental issues stemming from those experiences.

         In its response to appellants writ application, the State contended appellant laded to show

he could not have presented the voluntariness issue in his first writ application. The State further

contended that appellants claim of mental incompetency is at odds with the evidence before the trial

court. The trial court agreed with the State’s position and denied appellant’s writ application on the

ground appellant had not shown his claims could not have been presented in a previously tiled writ

application because the factual or legal basis for the claim was unavailable on the date the previous

application was filed.” Alternatively, the trial court also found that appellant had “not proved by a

preponderance of the evidence that his guilty plea was involuntary.”

                                           APPLICABLE L,w

        An applicant for habeas corpus relief alleging he entered an involuntary guilty plea must

prove his claim by a preponderance of the evidence. Knialt v. State, 206 S.W.3d 657. 664 (Tex.

Crim. App. 2006). In reviewing the trial court’s order denying habeas corpus relief, we view the

facts in the light most favorable to the trial court’s ruling. See Exparte Peterson. 117 S.\V.3d 804.

819 (Tex. Crim. App. 2003) (per curiam), overruled on other grounds by Ex par/c Lewis, 219

S.W.3d 335 (Tex. Crim. App. 2007). We will uphold the trial courf s ruling absent an abuse of

discretion. See id     We afford almost total deference to the trial court’s determination of the

historical facts that the record supports. See Ed. We likewise defer 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. See Ed.      If the resolution of the ultimate question turns on an application of legal

standards. we review the determination de novo. See Ed.

        A trial court may not accept a plea of guilty “unless it appears that the defendant is mentally
 competent and the plea is free and voluntary.” TEX. CODE       (RIM. PROC ANN.      art. 26.13(h) (West

 Supp. 2011). A defendant is incompetent to stand trial ifhe does not have a sufficient present ability

to consult with his law er with a reasonable degree of rational understanding or a rational. as well

as flictual, understanding of the proceedings against him.         TEN. CODE CRIM, PRoc. ANN. art.

46B.003(a) (West 2006).         The defendant is presumed competent to stand trial unless proved

incompetent by a preponderance of the evidence. Jd. at art. 46B.003(b). When the trial court has

had the opportunity to observe the accused in open court, hear him speak, observe his demeanor, and

question him about the voluntariness of’ his plea. the trial   court   need not make an inquiry into the

accused’s mental competency unless an issue is raised of the accused’s mental competency to enter

the plea. See Kuvava     1’. State.   538 S.W.2d 627. 628 (Tex. Crim. App. 1976).

        To obtain consideration of the merits on or relief upon an application for writ of habeas

corpus filed after final disposition of an initial application, an applicant must plead and prove

sufficient thcts to show that the current claims and issues were not, and could not have been.

presented in his initial application because the factual and legal basis for the claims and issues was

unavailable on the date the applicant filed his initial application. See T[3X. CODE CRIM. PROC. ANN.

art. 11 .072, §9(a) (West 2005). The factual basis for a claim is considered unavailable on a date “if

the factual basis was not ascertainable through the exercise of reasonable diligence on or before that

date.” See Id. at art. 11 .072, §9(c).

                                                 ANA1vs IS

        On the record presented. appellant has not shown he could not have presented his

voluntariness issue in his first writ application. The traumatic events appellant allegedly experienced

occurred many years before appellant entered his plea. Appellant’s plea counsel was certainly aware

of the events because he and appellant grew up as friends in El Salvador. Although appellant
 contends his engagement of his childhood friend as counsel in 2006 triggered his incompetency, he

 did not seek professional help fir his problems until September 30,2011. Appellant admits in his

 application that the trial court asked him during the plea hearing if he had ever been to a mental

 hospital or had any indication he was not competent or sane. When appellant responded “No, sir”,

the trial court found him competent. Appellant does not contend the trial court had any reason to

inquire further into his competence at the time he entered his plea. Appellant’s second counsel, who

represented appellant in revocation proceedings and in appellant’s first habeas application, has sworn

he was unaware of any such issues during his representation of appellant. As the State points out.

nothing in the psychological evaluation appellant presents shows it could not have been performed

in 2007 at the time of appellant’s plea nor does the report indicate appellant’s mental state was

unascertainable at the time he entered his plea or later at the time he filed his first writ application.

        The trial court was under no obligation to accept appellant’s explanation for why he did not

raise this issue in his initial writ application. An applicant’s delay in seeking habeas corpus relief

may prejudice the credibility of his claim. Kniati, 206 S.W.3d at 664. The trial court found both that

appellant had not shown he could not have raised his competency issue in his first writ application

and that appellant had not shown his plea was involuntary. This Court is required to give due

deference to the trial court’s fact-findings. ExparleAmezqiiira. 223 S.W.3d 363. 367 (Tex. Crim.

App. 2006).

                                             CoNcLUSION

        On the present record, we cannot conclude the trial court abused its discretion in finding

either that appellant failed   to   show he could not have presented his claim in his earlier writ

application or that appellant failed to show that his guilty plea was involuntary. Thus. we conclude

the trial court did not abuse its discretion in denying appellant’s application for writ of habeas
corpus. Sce Kniun. 206 S.W.3d at 664. We overrule appellant’s sole issue.

       We affirm the trial court’s order denying appellant the relielsought by his application for writ

of habeas corpus.




                                                      IRRYl. I !l/(H R\LI)
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Do Not Publish
Tex. R. App. P. 47
120872F.I.J05
                                  Qinurt ni Appri1
                         .fiftIi itrirt nf rxti at Ja11ai

                                         JUDGMENT
EX PARFE EDGAR OTONIE1.                               Appeal from the 401st Judicial District
MEDRAN()                                              Court of Collin County. Texas. (Tr.Ct.No.
                                                      W401 -82845-06-I-1C2).
No. 05-1200872-CR                                     Opinion delivered by Justice FitzGerald.
                                                      Justices O’Neill and Lang-Miers
                                                      participating.

       Based on the Court’s opinion of this date, the order of the trial court denying relief on
appellant’s application for writ of habeas corpus is AFFIRMED.



Judgment   entered October 11 201 2.




                                                     KI RRY P. FIl ZGERAI .1)
                                                     .H. 11(11
