Ex parte Octavian Becciu v. The State of Texas

Houston, TX - Criminal defense atty represented defendant Octavian Becciu with writ of habeas corpus seeking to set aside the order of deferred adjudication on the basis that his guilty plea was not voluntary.

On December 16, 2011, appellant was involved in an altercation with his

girlfriend, and he was arrested and charged with the Class A misdemeanor offense

of assault on a family member. Three days later, on December 19, appellant pleaded

guilty to the charged offense. The plea paperwork contained the following statement:

I confess that I committed the offense as alleged in the State’s

information and that each element of the State’s pleading is true. In

open court I freely and voluntarily enter my plea of guilty/nolo

contendere to the offense charged in the information and request the

Court to make immediate disposition of this case based upon my plea.

The trial court accepted appellant’s guilty plea, deferred adjudication of guilt, and

placed appellant on community supervision for one year. Appellant successfully

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discharged his community supervision obligation, and the trial court dismissed the

case against him in January 2013.

In May 2019, appellant filed the underlying application for writ of habeas

corpus. Appellant sought relief from the order of deferred adjudication, arguing that

his guilty plea was involuntary. Appellant stated that he had been involved in a

motorcycle accident on December 11, 2011, and fractured his leg. On December 16,

five days later, appellant and his girlfriend became involved in a physical altercation

at the apartment they shared, and appellant was arrested. Appellant stated that he

was not allowed to take his pain medication to the jail with him. After he was booked

in the jail, he saw medical personnel, but he was not given pain medication.

Appellant argued that three days after his arrest, on December 19, 2011, he

was taken to court for his first court appearance, where he met his court-appointed

counsel, David Fleischer, for the first time. Appellant argued:

[Appellant] tried to explain that [his girlfriend] attacked him but

[Fleischer] responded that, if he disputed her account, he would have to

proceed to trial and that it could be months before that occurred, months

that he would have to spend waiting in the Harris County Jail.

[Appellant] immediately dismissed that idea and explained to

[Fleischer] his injury, the lack of care or medication in the jail, and that

he needed to get out immediately. [Fleischer] then explained that he

was able to get the prosecutors to offer him deferred adjudication

community supervision which would allow him to get out of jail

immediately.

The most important thing to [Appellant] at that instant was the fact that,

by accepting the plea offer, he would get released from the Harris

County Jail. He agreed to do so and signed off on paperwork

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acknowledging he was entering his plea freely and voluntarily, even

though in his mind, he knew his decision was anything but that.

Appellant appeared before a visiting judge and stated that he was pleading guilty

because he was guilty, “even though he knew he was not guilty and his decision to

plead guilty was not free and voluntary.” The visiting judge accepted appellant’s

guilty plea and he was released from jail the next morning. Appellant immediately

went to the hospital, and soon thereafter, he had surgery on his leg.

Appellant argued that he had been denied employment opportunities as a

result of his criminal record. He argued that he had experienced periods of

homelessness and financial difficulties following his release from jail and from the

hospital. He stated that he attempted to enlist in the Army in 2014, but he could not

enlist because his offense involved domestic violence and he was barred from

possessing a firearm. He further stated that he had been turned down from

employment opportunities because of his criminal history. Appellant’s application

for habeas relief raised one ground for relief: he argued that his guilty plea was

involuntary “due to his medical condition and associated injury.” Appellant did not

argue that his plea counsel had rendered ineffective assistance.

In response, the State argued that appellant failed to meet his burden to prove,

by a preponderance of the evidence, that his guilty plea was involuntary. The State

argued that appellant “understood his options and that, if he disputed his guilt, he

would have to go to trial, but he did not wish to do so.” The State further contended

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that appellant had not argued that, as a result of his medical condition, he was unable

to understand the proceedings or the consequences of pleading guilty, but, instead,

appellant “freely admits that he lied to the Court and manipulated the proceedings

in order to gain his immediate release.”

The State also argued that appellant’s request for habeas relief should be

barred by the doctrine of laches. The State argued that appellant had admitted that

he learned of the adverse employment consequences his criminal history would have

while he was still on deferred adjudication in 2012, but he waited until May 2019,

more than seven years after he was placed on deferred adjudication, to bring his

habeas claim. The State argued that appellant’s delay in bringing his habeas claim

caused it prejudice because it had destroyed its file pursuant to its two-year retention

policy for misdemeanor cases and that it was likely that Fleischer, appellant’s plea

counsel, who was now the presiding judge of the Harris County Criminal Court at

Law Number 5, would no longer be in possession of appellant’s file. The State also

argued that it was prejudiced because, two years after appellant’s arrest, the arresting

officer pleaded guilty to two counts of sexual assault of a child, was sentenced to

prison, and was unlikely to be available as a witness in the event of a re-trial. As

evidence, the State attached the judgments of conviction for the arresting officer,

appellant’s plea paperwork for the charged offense, the written admonishments

appellant signed when he was placed on deferred adjudication, the offense report for

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the charged offense, and the complainant’s written statement concerning the charged

offense.

The trial court held an evidentiary hearing on appellant’s application, and

appellant testified as the only witness. Appellant testified that he first came to the

United States from Moldova in 2008 on a work and travel visa, that he applied for

asylum in 2009, and that he became an American citizen in 2019. Appellant met the

complainant in March 2010, and they moved in together in May 2010. The

complainant was one of appellant’s only connections in America. Appellant testified

that he was involved in a series of motorcycle accidents in 2011. He was not injured

in the first accident. The second accident occurred in September 2011, and appellant

broke his ankle. Appellant had surgery, and doctors placed a plate and screws in his

ankle. Appellant had a third motorcycle accident on December 11, 2011, and he

fractured his leg. Hospital personnel prescribed narcotics to help with the pain and

recommended that appellant consult a surgeon. Appellant was not able to walk

without crutches, and he described his pain as “bad” but manageable with

medication. Appellant had a follow up appointment scheduled for December 18 or

19.

Appellant testified that, on December 16, 2011, he was involved in an

altercation with his girlfriend, who “kicked and stomped” his injured ankle. After

appellant’s girlfriend called the police, an officer arrived at their apartment and

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arrested appellant. The officer did not allow appellant to take his pain medication

with him to the jail, but he was allowed to take his crutches. Appellant testified that,

at that time, he had around $20 in cash and less than $200 in a bank account. After

appellant explained that he was injured, jail personnel took away his crutches and

gave him a different set. Medical personnel ordered that appellant have a bottom

bunk, but they did not give him any medication or refer him for further examination.

When asked if he believed that he would be re-evaluated while at the jail, appellant

stated, “They said I can come back in two months.” Appellant believed that it was

possible that he might be taken to the emergency room, but that did not happen. He

testified that he did not have anyone to call to assist him in getting out of jail; he was

not allowed to contact the complainant, and his mother lived in Greece. Appellant

stated that his “main priority” was to “get out of the jail and fix [his] leg.”

Appellant testified that he had his first court appearance on December 19,

2011. Before he appeared in court, he spoke with Fleischer, his court-appointed

attorney, and explained his injury and his level of pain. Based on this conversation,

appellant understood that “[t]he only way to get out of jail and to go and have surgery

on my leg was to plead guilty” and that he would “be on probation for a year, and

after this it’s going to go away.” He understood that, upon pleading guilty, he would

be immediately released from jail. He testified that he did not know anything about

obtaining a cash, surety, or personal bond. Appellant understood that by pleading

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guilty, he had to admit that he was actually guilty of the charged offense, but he did

not believe he was guilty. When asked why he decided to sign the plea paperwork,

appellant stated: “I’m going to be able to go and fix my leg right now at Ben Taub

[Hospital] and I will have to fulfill my obligations for a year [on community

supervision]; and after this one year, it’s going to go away.” He testified that, based

on his conversation with counsel, he understood that if he did not plead guilty, it

would be three or four months before his case went to trial, and he would have to

spend that time in jail, where he had not been given pain medication. He testified

that he believed that pleading guilty was his only option for getting out of jail.

With respect to his appearance before the visiting judge, appellant testified:

I was third or fourth in line. Somebody in front of me had some—they

had [objections], and the judge said, “Okay. I’m not going to take your

plea today. You’ll have to wait.” And I understood that if I say anything

other than “Guilty” or “Not guilty” I’ll have to wait until further in

August.

Appellant stated that he was not willing to wait to go to trial because he was in an

extreme amount of pain. He stated that the judge asked him if he was pleading guilty

because he was guilty, and although appellant said that he was, he was pleading

guilty because he was in pain, not because he was guilty.2 Appellant was released

2 On cross-examination, appellant acknowledged that he had the option to go to trial,

but he chose not to have a jury trial. He agreed with the prosecutor that he lied to

the visiting judge when he said, under oath at the plea hearing, that he was pleading

guilty because he was guilty and for no other reason. He agreed that he was “going

to say whatever it takes to get out that day” because he “wanted the pain to go away.”

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from jail the next morning, and he went straight to the hospital upon his release.

Once admitted to the hospital, appellant had to wait before having surgery, but

medical personnel immediately gave him pain medication. While he was in the

hospital, he began researching his case and started writing down contact information

for attorneys. He testified, “I had an entire notebook of names of lawyers that I

contacted.”3

Appellant was released from the hospital on December 31, 2011. He testified

that he was homeless for about three months. He rented a storage unit, where he

sometimes slept, and he also sometimes slept underneath a bridge. Appellant was

able to receive money from his mother during this time. Eventually, he met some

people from Moldova, his home country, and they allowed him to stay with them.

Appellant testified that he searched for employment but was turned down

because he was on community supervision. He obtained employment at Jyoti

Americas in March 2012 and made $400 to $500 per week. Around this time, he

started trying to contact attorneys but was not able to retain an attorney. He stated

that all of the attorneys that he contacted wanted $15,000 or $20,000 as a retainer,

they wanted payment upfront, and they were not willing to place him on a payment

plan. He testified that he continued to contact attorneys after he was discharged from

3 Appellant presented this notebook to the trial court to view at the habeas hearing.

This notebook was not offered as an exhibit, and it is not part of the appellate record.

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community supervision in January 2013, but he still was not able to afford an

attorney. Appellant lost his job at Jyoti Americas during the summer of 2012, but

the same company re-hired him after a month. While he was at this job, he obtained

some additional education, and at the time of the hearing, he was enrolled in junior

college. Appellant maintained this job until the company filed for bankruptcy in

2016.

Appellant tried to enlist in the Army in 2014, and he scored well on the

screening examination. He disclosed that he had a prior assault charge—specifically,

a domestic violence charge—and the recruiter immediately told him that, under

federal law, he would not be allowed to enlist. Appellant testified that, after he lost

his job with Jyoti Americas in 2016, he was unemployed for three months before he

obtained a job with a transportation company, which he held until May 2017. He

made approximately $42,000 per year at this job. He stated that he was “saving up”

to hire an attorney, but he still “did not have the full amount.” Appellant switched

jobs and worked at another company until his position was terminated in May 2018.4

He testified that, after he lost this job, he told his girlfriend at the time, “I think I’m

4 The hearing on appellant’s habeas application occurred in August 2019. Appellant

testified that he had been a contractor at a company since February 2019 and that

company had extended him an offer for full-time employment two weeks prior to

the hearing, but the company had not finished conducting his background check. He

stated that he was concerned that the company would find out about his deferred

adjudication and would not hire him on a permanent basis.

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going to have to do something about this [the deferred adjudication order] because

every time I’m going to apply for new jobs this is going to come [up] over and over

again, and I have to do this right now, or I’m never going to be able to get out of this

cycle.” Appellant started contacting attorneys again, and he retained his writ counsel

in July 2018. Appellant filed his application for writ of habeas corpus in May 2019.

Appellant’s writ counsel twice stated that he was not raising an argument that

Fleischer, appellant’s plea counsel, had rendered ineffective assistance. The trial

court indicated that it wanted to hear from Fleischer concerning what he remembered

from appellant’s plea. Because Fleischer was not available to testify that day, the

trial court recessed the hearing for a week.

When the hearing resumed, appellant’s writ counsel stated that he had spoken

with Fleischer, and Fleischer informed him that “he did not have any specific

recollection of the case, [and] he had no files pertaining to the case.” Writ counsel

also stated that Fleischer told him that, when he was in practice, he did not have any

standard procedures, that he would handle cases differently based on the particular

case, and he had “no recollection of what actually took place” in appellant’s case.

Writ counsel determined that he would not call Fleischer to testify.

At the close of the hearing, the trial court pointed out that appellant became

aware in 2012, while he was still on community supervision, that the order of

deferred adjudication had negative effects on his employment prospects, but he

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waited seven years to file his application for habeas relief. The trial court also stated

that it did not see all of the notebook that appellant had used to keep track of his

search for an attorney, but it saw a “handful of pages.” The court stated:

If somebody was trying to do something for six or seven years, I would

expect to have different colors of ink, several pages. And it was a very

small notebook, probably three and a half by five inches tops. And I

only saw like four or five pages that had anything even written on there.

The court further pointed to appellant’s testimony that, after he lost a job in 2018,

he told his girlfriend that “it looks like I’m going to have to do something about this

or it’s going to follow me around.” The court stated, “So that makes me believe that

all of this came to fruition when he came to that realization, which was probably in

the last year or two,” but appellant “had notice that this was going to be an issue

eight months after the plea, 18 months after the plea, several times in between then.”

The trial court found the State’s laches argument persuasive and denied appellant’s

application for writ of habeas corpus.

The State submitted proposed findings of fact and conclusions of law, and the

trial court signed these proposed findings and conclusions. The trial court made

several findings concerning appellant’s financial situation, his post-arrest periods of

employment, and his attempts to hire writ counsel. The trial court made the

following findings relevant to the question of laches:

44. The Court finds the applicant has maintained steady, gainful

employment since March of 2012, with only minimal periods of being

laid off and drawing unemployment benefits.

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45. The Court reviewed the relevant portions of the notebook the

applicant said he used to list all of his attempts to contact lawyers to

assist him in post-conviction proceedings, and was not persuaded that

he had made a consistent, persistent attempt to obtain representation or

to file a post-conviction writ of habeas corpus; specifically, the Court

believes that a true six-to-seven year effort would have revealed

different colors of ink, over several pages. Instead, only four or five

pages of the three-by-five-and-one-half inch notebook had anything

recorded concerning the lawyer search.

46. The Court is further convinced the applicant did not decide to

seek post-conviction relief until recently because of his own testimony

that, after losing a job in May of 2018, he told his girlfriend that he

needed to do something about his criminal history.

47. The Court finds the applicant had notice within the first year of

his plea that his criminal history would be an issue with employment,

but he waited over seven years to file his habeas application.

48. The Court finds the applicant knew of his own medical condition

at the time he entered his plea of guilty; he had received medical

treatment and had educated himself as to the availability of postconviction remedies within thirty days of his plea—well within the

statutory time limits to file a motion for new trial.

49. The Court finds the applicant’s alleged reasons for delay in

seeking post-conviction habeas relief to be not credible and

unpersuasive.

50. The Court finds the applicant failed to present evidence of any

compelling reason the doctrine of laches should not apply.

51. The Court finds the State has been prejudiced in its ability to retry

the applicant’s case because of his delay in seeking post-conviction

relief: (1) The State’s original file has been destroyed; (2) the arresting

officer has been convicted of sexual assault of a child and sentenced to

prison; and (3) the memories of necessary witnesses have likely faded.

The trial court also entered conclusions of law on both laches and the merits

of appellant’s claim that his guilty plea was not voluntary. The trial court concluded

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that appellant was not “credible with regard to his reasons for delay” in bringing his

habeas claim, appellant “had access to funds on a regular basis and educated himself

concerning his legal remedies within thirty days of entering his plea of guilty,” all

equitable factors relevant to determining whether laches should apply were resolved

against appellant, and appellant “waited seven years to file his application, and the

State has amply demonstrated how it has been prejudiced by the delay.” This appeal

followed.

Laches

In his first issue, appellant argues that the trial court erred by denying habeas

relief because his guilty plea was involuntary. In his second issue, he requests that

this Court abate this appeal to allow him to raise, in the trial court, the ineffectiveness

of his plea counsel as a ground for habeas relief. In his third issue, appellant contends

that the trial court erred by concluding that his request for habeas relief was barred

by the doctrine of laches. Because the trial court expressly ruled that laches applied

to bar relief, and this issue is dispositive of this appeal, we address this issue first.

A. Standard of Review

Code of Criminal Procedure article 11.072 governs habeas corpus

proceedings involving a person who is serving or who has completed a term of

community supervision. See TEX. CODE CRIM. PROC. ANN. art. 11.072; Ex parte

Vasquez, 499 S.W.3d 602, 606 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d). In

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a proceeding under article 11.072, the trial court is the sole finder of fact. See TEX.

CODE CRIM. PROC. ANN. art. 11.072, §§ 6–7 (providing that trial court shall enter

written order granting or denying relief sought and shall enter written order including

findings of fact and conclusions of law); State v. Guerrero, 400 S.W.3d 576, 583

(Tex. Crim. App. 2013); Ex parte Garcia, 353 S.W.3d 785, 787–88 (Tex. Crim. App.

2011) (stating that, in article 11.072 habeas case, in which trial court is sole fact

finder, there is “less leeway” to disregard trial court’s findings as opposed to article

11.07 habeas case, in which Court of Criminal Appeals is ultimate fact finder).

An applicant seeking habeas corpus relief must prove his claim by a

preponderance of the evidence. Ex parte Torres, 483 S.W.3d 35, 43 (Tex. Crim.

App. 2016); Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). The trial

court may believe any or all of a witness’s testimony. Guerrero, 400 S.W.3d at 583.

We afford almost total deference to a trial court’s fact findings when supported by

the record, especially when the findings are based upon credibility and demeanor.

Id.; Ex parte Ali, 368 S.W.3d 827, 830 (Tex. App.—Austin 2012, pet. ref’d) (“‘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.”). We afford the same

amount of deference to the trial court’s application of the law to the facts when the

resolution of the ultimate question turns on an evaluation of credibility and

demeanor. Vasquez, 499 S.W.3d at 606; Ali, 368 S.W.3d at 831. We must review the

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record evidence in the light most favorable to the trial court’s ruling, and we must

uphold that ruling absent an abuse of discretion. Kniatt, 206 S.W.3d at 664; Ex parte

Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006); see Ex parte Osvaldo, 534

S.W.3d 607, 623 (Tex. App.—Corpus Christi–Edinburg 2017) (applying “highly

deferential” standard of review to laches issue because laches is fact question and,

in article 11.072 proceedings, trial court is sole fact finder), aff’d sub nom. Ex parte

Garcia, 547 S.W.3d 228 (Tex. Crim. App. 2018). We review de novo mixed

questions of law and fact that do not depend upon credibility and demeanor. Ex parte

Weinstein, 421 S.W.3d 656, 664 (Tex. Crim. App. 2014).

B. Doctrine of Laches

The writ of habeas corpus is an extraordinary remedy, and granting the writ

“must be underscored by elements of fairness and equity.” Ex parte Smith, 444

S.W.3d 661, 666 (Tex. Crim. App. 2014). The elements of equity and fairness

“require a consideration of unreasonable delay.” Ex parte Bowman, 447 S.W.3d 887,

888 (Tex. Crim. App. 2014) (per curiam); see Smith, 444 S.W.3d at 666 (“To

determine whether equitable relief should be granted then, it behooves a court to

determine whether an applicant has slept on his rights and, if he has, whether it is

fair and just to grant him the relief he seeks.”); see also Kniatt, 206 S.W.3d at 664

(stating that applicant’s delay in seeking habeas relief may prejudice credibility of

his claim). The Court of Criminal Appeals has thus held that the common law

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doctrine of laches applies to all habeas cases. Bowman, 447 S.W.3d at 888; Ex parte

Perez, 398 S.W.3d 206, 215 (Tex. Crim. App. 2013) (“Texas courts may apply the

common-law doctrine of laches in determining whether to grant habeas relief.”).

The Court of Criminal Appeals has defined the common law doctrine of laches

as follows:

[The] neglect to assert [a] 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.

Perez, 398 S.W.3d at 210 (quoting Ex parte Carrio, 992 S.W.2d 486, 487 n.2 (Tex.

Crim. App. 1999)). When considering whether the State has been prejudiced by the

defendant’s delay in seeking habeas relief, courts may consider “anything that places

the State in a less favorable position, including prejudice to the State’s ability to retry

a defendant.” Id. at 215; Vasquez, 499 S.W.3d at 612. Proof of “mere passage of

time” is insufficient to raise laches. Perez, 398 S.W.3d at 219. The decision of

whether to apply the doctrine of laches is a “case-by-case inquiry.” Id. at 216. Courts

may consider “the totality of the circumstances in deciding whether to grant

equitable relief,” including “the diminished memories of trial participants and the

diminished availability of the State’s evidence.” Id. at 215–16 (noting that

“diminished memories of trial participants” and “diminished availability of the

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State’s evidence” both “may often be said to occur beyond five years after a

conviction becomes final”).

In Perez, the Court of Criminal Appeals addressed relevant factors a court

should consider when determining whether a claim for habeas relief should be barred

by laches:

Similar to a court’s review of a claim that a defendant’s right to a speedy

trial has been violated, it may be proper to consider, among all relevant

circumstances, factors such as the length of the applicant’s delay in

filing the application, the reasons for the delay, and the degree and type

of prejudice resulting from the delay. As we have observed with respect

to speedy-trial complaints, “[n]o single factor is necessary or

sufficient.” Instead, courts must “engage in a difficult and sensitive

balancing process” that takes into account the parties’ overall conduct.

In considering whether prejudice has been shown, a court may draw

reasonable inferences from the circumstantial evidence to determine

whether excessive delay has likely compromised the reliability of a

retrial. If prejudice to the State is shown, a court must then weigh that

prejudice against any equitable considerations that militate in favor of

granting habeas relief.

Id. at 217. The extent of prejudice that the State must show “bears an inverse

relationship to the length of the applicant’s delay” in bringing the habeas proceeding.

Id. The longer a defendant delays in filing a habeas application, “and particularly

when an applicant delays filing for much more than five years after conclusion of

direct appeals,” the less evidence the State must present to demonstrate prejudice.

Id. at 217–18. The Court of Criminal Appeals reasoned that this “sliding-scale

approach is based on the common-sense understanding that the longer a case has

been delayed, the more likely it is that the reliability of a retrial has been

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compromised.” Id. at 218. Additionally, when determining whether habeas relief is

warranted, we must consider “the State’s broad interest in the finality of a longstanding conviction.” Id.; see Ex parte Saenz, 491 S.W.3d 819, 826 (Tex. Crim. App.

2016) (“In general, the doctrine of laches is intended to address the broader interests

of the criminal-justice system, such as prejudice to the State’s ability to prosecute a

defendant or to respond to allegations due to the loss of evidence . . . .”).

Courts may reject the State’s reliance on laches when the record shows that

(1) an applicant’s delay was not unreasonable because it was the result of 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 showing that he is actually innocent of

the offense or, in some cases, that he is reasonably likely to prevail on the merits.

Perez, 398 S.W.3d at 218; see Smith, 444 S.W.3d at 667 (“But equity does not

require that an applicant be barred from relief by mere delay alone.”). Generally, in

cases of “excessive” delay, it is more likely that the State will be able to show

prejudice as a result of the delay, and the applicant “will face a difficult task to show

why his application should not be barred by laches.” Perez, 398 S.W.3d at 219.

The Court of Criminal Appeals declined to impose a requirement that a

defendant assert a claim for habeas relief within a specific period of time, stating

instead that it “will continue to apply laches as a bar to relief when an applicant’s

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unreasonable delay has prejudiced the State, thereby rendering consideration of his

claim inequitable.” Id. The Court noted, however, that a delay of more than five

years “may generally be considered unreasonable in the absence of any justification

for the delay.” Id. at 216 n.12; Vasquez, 499 S.W.3d at 613.

C. Analysis

Here, the trial court expressly determined that the doctrine of laches barred

appellant’s claim for habeas relief and made specific fact findings and conclusions

of law. It is undisputed that appellant pleaded guilty to the charged offense and was

placed on deferred adjudication community supervision on December 19, 2011. He

successfully completed community supervision, and the trial court dismissed the

charge against him in January 2013. Appellant filed his application for habeas relief

on May 19, 2019.

On appeal, appellant argues that the seven-plus year delay in bringing his

habeas claim was reasonable and justifiable because of his economic hardships and

his need to save money to retain an attorney, which took several years. The trial

court found that, upon being released from jail on December 20, 2011, appellant

immediately went to the hospital, where he stayed for approximately ten days. The

trial court found that, while he was in the hospital, appellant began researching his

case and compiling names of attorneys who could potentially represent him.

According to appellant, every attorney he contacted wanted between $15,000 and

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$20,000 to represent him. The trial court made several specific findings concerning

appellant’s employment history at specific companies and his search for an attorney.

The court also made the following findings:

44. The Court finds the applicant has maintained steady, gainful

employment since March of 2012, with only minimal periods of being

laid off and drawing unemployment benefits.

45. The Court reviewed the relevant portions of the notebook the

applicant said he used to list all of his attempts to contact lawyers to

assist him in post-conviction proceedings, and was not persuaded that

he had made a consistent, persistent attempt to obtain representation or

to file a post-conviction writ of habeas corpus; specifically, the Court

believes that a true six-to-seven year effort would have revealed

different colors of ink, over several pages. Instead, only four or five

pages of the three-by-five-and-one-half inch notebook had anything

recorded concerning the lawyer search.

46. The Court is further convinced the applicant did not decide to

seek post-conviction relief until recently because of his own testimony

that, after losing a job in May of 2018, he told his girlfriend that he

needed to do something about his criminal history.

47. The Court finds the applicant had notice within the first year of

his plea that his criminal history would be an issue with employment,

but he waited over seven years to file his habeas application.

Ultimately, the trial court found that appellant’s “alleged reasons for delay in seeking

post-conviction habeas relief to be not credible and unpersuasive” and that appellant

“failed to present evidence of any compelling reason the doctrine of laches should

not apply.”

The Court of Criminal Appeals has declined to apply a specific, bright-line

time period in which a defendant must seek post-conviction habeas relief; however,

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the court has noted that a delay of more than five years in seeking habeas relief “may

generally be considered unreasonable in the absence of any justification for the

delay.” See Perez, 398 at 216 n.12; Vasquez, 499 S.W.3d at 613. Here, it is

undisputed that appellant waited more than seven years after he pleaded guilty to

seek habeas relief. Appellant argues that the record “accounts for all the time that

[appellant] has sought relief from his plea,” and he emphasizes his employment

history and financial instability as justifications for his delay.

The trial court, however, expressly found appellant’s testimony and reasons

for his delay in seeking habeas relief to be not credible. The trial court made findings,

which are supported by the record, that while appellant had periods in which he was

unemployed, he was employed for the majority of time between March 2012 and

May 2019, when he sought habeas relief.5 The trial court also found that appellant

realized while he was on community supervision in the year following his guilty plea

that his criminal history could have an adverse effect on his employment

opportunities, but appellant waited more than seven years—until May 2019—to

bring his habeas claim. This finding was supported by appellant’s testimony

5 We note that, in an unpublished opinion, the Court of Criminal Appeals has stated

that “[l]ack of funds, pro se status, and/or the lack of sophistication of the law would

not, without more, excuse [the defendant’s] twenty-two year delay” in seeking

habeas relief. Ex parte Caudill, No. WR-86,762-02, 2019 WL 1461929, at *7 (Tex.

Crim. App. Jan. 30, 2019) (not designated for publication). In Caudill, the Court of

Criminal Appeals disagreed with the trial court’s recommendation to grant habeas

corpus relief, concluded that laches applied, and denied habeas relief. Id. at *9.

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concerning his difficulty finding a job in 2012 and his testimony that he attempted

to enlist in the Army in 2014, but he could not do so because his offense involved

domestic violence. Appellant told his girlfriend in 2018 that he thought he would

“have to do something about this [the deferred adjudication order] because every

time I’m going to apply for new jobs this is going to come [up] over and over again,

and I have to do this right now, or I’m never going to be able to get out of this cycle.”

Furthermore, although appellant testified that he attempted to search for an

attorney who would assist him, but he could not afford the initial retainer, the trial

court expressly found this testimony to be not credible as well. The trial court viewed

portions of a notebook—which is not part of the appellate record—that appellant

kept detailing his search for an attorney, but the court did not believe that these

efforts constituted a “consistent, persistent attempt to obtain representation” which

could potentially justify the delay in seeking habeas relief. The trial court found that,

instead, it was only after appellant experienced difficulties obtaining a job in May

2018, more than six years after his guilty plea, that he decided to seek postconviction relief. As this proceeding is governed by Article 11.072, and the trial

court is the ultimate fact finder, we afford almost total deference to the trial court’s

fact findings when they are supported by the record, especially when those fact

findings turn on an evaluation of credibility and demeanor. See Guerrero, 400

S.W.3d at 583; Ali, 368 S.W.3d at 830 (“‘When the trial court’s findings of fact in a

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habeas corpus proceeding are supported by the record, they should be accepted’ by

the reviewing court.”).

In addition to finding that appellant’s delay in seeking habeas relief was

unreasonable and not justified, the trial court also found that this delay prejudiced

the State. Specifically, the trial court found that the State had been prejudiced

because its original file had been destroyed pursuant to its retention policies, the

arresting officer had been convicted of sexual assault of a child and sentenced to

prison, and “the memories of necessary witnesses have likely faded.” In its response

to appellant’s writ application, the State explained that it has a two-year retention

policy for misdemeanor cases and that, while appellant’s plea paperwork was still

available on a Harris County computer system, the State’s file for the case had been

destroyed. See Ex parte Roberts, 494 S.W.3d 771, 776–77 (Tex. App.—Houston

[14th Dist.] 2016, pet. ref’d) (concluding that State had been prejudiced by delay in

seeking habeas relief in part because, during intervening time period, both State and

trial counsel had “lost or destroyed relevant evidence”); see also Vasquez, 499

S.W.3d at 614 (considering evidence that files had been destroyed and relevant plea

participants lacked independent recollection of plea due to passage of time between

plea and habeas proceedings and concluding that record supported trial court’s

finding of material prejudice to State by defendant’s delay). The State also attached

copies of judgments reflecting that the officer who arrested appellant had been

25

convicted of two counts of sexual assault of a child, and the State argued that this

officer would likely be unavailable as a witness if appellant’s case was retried. See

Perez, 398 S.W.3d at 215 (stating that, when considering whether the State has been

prejudiced by delay in bringing habeas proceedings, court may consider “anything

that places the State in a less favorable position, including prejudice to the State’s

ability to retry a defendant”).

Ultimately, the trial court concluded that no evidence justified appellant’s

seven-year delay in filing his writ of habeas corpus, that the State demonstrated that

it had been prejudiced by appellant’s delay, that appellant had presented no evidence

of any compelling reason why laches should not apply, and that appellant’s claim

for habeas relief should be barred by laches. Viewing the record in the light most

favorable to the trial court’s findings and affording almost total deference to the trial

court’s findings, especially those that turn on credibility and demeanor, as we must

in this Article 11.072 habeas proceeding, we cannot conclude that the trial court

abused its discretion by determining that the doctrine of laches applies and bars

appellant’s claim for habeas relief. See Kniatt, 206 S.W.3d at 664; Osvaldo, 534

S.W.3d at 623. We therefore hold that the trial court did not abuse its discretion in

denying appellant’s application for a writ of habeas corpus.

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We overrule appellant’s third issue.6

We affirm the judgment of the trial court.