Date: 02-05-2019

Case Style:

Ex parte Marina Urbina

Case Number: 01-18-00177-CR

Judge: Julie Countiss

Court: Court of Appeals For The First District of Texas

Plaintiff's Attorney: Jack Roady
Rebecca Klaren

Defendant's Attorney: Mervyn Milton Mosbacker Jr.

Description:

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In March 2005, a jury convicted appellant of the felony offense of aggravated
assault with a deadly weapon, assessed her punishment at confinement for five
years, and recommended that the sentence be probated.1 The trial court suspended
appellant’s sentence and placed her on community supervision for five years. She
successfully completed her community supervision, and her sentence was
discharged on April 22, 2010.
In November 2017, appellant filed her application for a writ of habeas corpus
pursuant to article 11.072 of the Texas Code of Criminal Procedure.2 In her
application, appellant asserted that her trial counsel rendered ineffective assistance
because he failed to (1) advise her of the immigration consequences of a felony
conviction for a violent crime; (2) properly investigate the case, “including failing
to investigate the criminal history and the character of the complaining witness”;
and (3) obtain subpoenas for witnesses who were prepared to testify on her behalf
at trial. Appellant specifically asserted that the State had offered her “a
misdemeanor plea” but trial counsel failed to inform her “that a plea to a
misdemeanor was preferable to conviction for a violent felony offense, vis-a-vis the
deportation process or proceedings” and, thus, she could not “make an informed

1 See TEX. PENAL CODE ANN. § 22.02(a); see id. § 22.01(a). 2 See TEX. CODE CRIM. PROC. ANN. art. 11.072.
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decision as to whether to accept the offer of a guilty plea to a misdemeanor or to
proceed to trial on the felony offense.” And she asserted that she was restrained of
her liberty because, as a result of her conviction, she “lost her status as a legal
resident alien in the United States of America and was subsequently deported to the
Republic of Mexico, where she remain[ed].”
With her application, appellant included her statement acknowledged by a
United States consular official.3 In that statement, she explained “how [she] was
misrepresented by [trial counsel] in [her] case in 2005.” According to appellant,
trial counsel “didn’t do his job to the fullest,” “wasn’t prepared during the trial,”
and “[t]he few times [they] met were useless.” Although appellant gave her trial
counsel the names of witnesses, he did not subpoena them for trial, told her
“subpoenas weren’t needed till [a] later date,” and, thus, “one of [her] key witnesses
was not present to testify since she was not subpoenaed.” And, her trial counsel
“also didn’t put [her] husband on the stand” but “put [her] 11[-]year[-]old daughter
making it look like a guilty plea.” Appellant explained that the State “had offered
a misdemeanor charge and probation time which [she] didn’t take” because she was
“concerned it could affect [her] Nursing License.” Further, her trial counsel “never
asked if [she] was an American Citizen,” and she was not “informed that a guilty
charge could change [her] [i]mmigration status.” And after she completed her

3 Appellant’s habeas counsel verified her habeas application.
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probation in 2010, she was “informed that [her] immigration status would change.”
In 2011, she “was contacted by ICE to be put on (ISAP) Intensive Supervision
Appearance Program and [an] Electronic Monitoring Program” and, in December
2013, “was deported to Mexico.”
As ordered by the trial court, appellant’s trial counsel filed an affidavit
regarding his representation of appellant. In that affidavit, trial counsel testified
that he “was previously employed as an attorney licensed in the State of Texas
beginning in 1970” and was “currently retired.” He explained that he no longer had
his file from his representation of appellant; believed that the file, “along with many
other files from my representations of previous clients, was destroyed in 2008 after
Hurricane Ike”; and had “no memory of [his] representation of [appellant].”
Further, counsel was “unaware of any available documentation which [he could]
review that would refresh [his] recollection concerning [his] representation of
[appellant],” and, therefore, he could not “respond to the claims of ineffective
assistance of counsel raised by [appellant] due to the 13 years which [had] passed
since [he] represented her.”
The State responded to appellant’s application contending that the doctrine
of laches barred any habeas relief because appellant’s unreasonable delay in
pursuing relief prejudiced the State’s ability to respond to her habeas claims. The
State asserted that the issues appellant raised in her application “[could] be resolved
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upon review of official trial court records and without need for an evidentiary
hearing” and trial counsel’s affidavit “reflect[ed] that a hearing would not provide
any evidence which could assist the trial court in resolving factual issues.”4 The
State attached trial counsel’s affidavit to its response. The record does not include
any response from appellant to the State’s response or her trial counsel’s affidavit.
The court denied the requested habeas relief and issued findings of fact and
conclusions of law. The trial court’s findings include:
1. “[Trial counsel] was retained to represent [appellant] in the trial phase of cause number 04CR2126.” 2. “On March 29, 2005, a jury returned a verdict of guilty for the felony offense of aggravated assault with a deadly weapon in cause number 04CR2126 . . . .” 3. “On March 30, 2005, the jury returned a verdict assessing a sentence of five (5) years confinement in the Texas Department of Criminal Justice—Institutional Division and recommended that [appellant’s] sentence be probated in cause number 04CR2126. [Appellant] did not appeal this conviction or suspended sentence.” 4. “On April 22, 2010, [appellant] was discharged from community supervision.” 5. “This Court finds that the assertions in the court-ordered affidavit of [trial counsel] are true and credible.” 6. “The Court finds, based on a review of the official trial court records and the credible affidavit of [trial counsel], that over twelve years have passed since [appellant] was placed on community supervision in March of 2005 and over seven years have passed since [she] was discharged from community supervision in April of 2010 until the time that [she] filed the instant habeas application in November of 2017 in cause number 04CR2126.”

4 See id. art. 11.072, § 3(b).
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7. “The Court finds, based on the credible affidavit of [trial counsel], that [he] does not remember any part of his representation of [appellant] in cause number 04CR2126.” 8. “The Court finds, based on the credible affidavit of [trial counsel], that [he] no longer possesses his file from the representation of [appellant] in cause number 04CR2126 because it was destroyed in 2008.” 9. “The Court finds, based on the credible affidavit of [trial counsel], that there is nothing that can refresh [his] recollection concerning his representation of [appellant].” 10. “The Court finds, based on a review of the official trial court records and the habeas application, that [appellant] unreasonably delayed more than five years in pursuing habeas remedies in November 2017.” 11. “The Court finds, based on a review of the official trial court records and the credible affidavit of [trial counsel], that the State has been materially prejudiced in its ability to respond to the allegations of ineffective assistance of counsel as a result of [trial counsel’s] loss of memory, inability to access his files, and the unavailability of any documentation which could refresh his memory, all of which resulted from the passage of time due to [appellant’s] unreasonable delay in pursuing habeas remedies.” 12. “The Court finds that the allegations of ineffective assistance of counsel raised in the habeas application in cause number 04CR2126-83-1 should be barred in accordance with the doctrine of laches.”

Based on its findings of fact and conclusions of law, the trial court denied
appellant’s requested habeas relief.
Standard of Review
Generally, an applicant seeking post-conviction habeas relief must prove his
claims by a preponderance of the evidence. Ex parte Richardson, 70 S.W.3d 865,
870 (Tex. Crim. App. 2002). We view the facts in the light most favorable to the
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trial court’s ruling. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App.
2003), overruled in part on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex.
Crim. App. 2007). In a post-conviction habeas corpus proceeding, the trial judge is
the sole finder of fact. See Ex parte Garcia, 353 S.W.3d 785, 788 (Tex. Crim. App.
2011); Ex parte Martinez, 451 S.W.3d 852, 856 (Tex. App.—Houston [14th Dist.]
2014, pet. ref’d). We afford almost total deference to the court’s findings of fact
that are supported by the record, especially when the trial court’s fact findings are
based upon an evaluation of credibility and demeanor. Ex parte Amezquita, 223
S.W.3d 363, 367 (Tex. Crim. App. 2006); Ex parte Peterson, 117 S.W.3d at 819.
We afford the same level of deference to the trial court’s rulings on “applications
of law to fact questions” if the resolution of those questions turn on an evaluation
of credibility and demeanor. Ex parte Peterson, 117 S.W.3d at 819. In such
instances, we use an abuse-of-discretion standard. See Ex parte Garcia, 353 S.W.3d
at 787. However, if the resolution of those ultimate questions turns on an
application of legal standards absent any credibility issue, we review the
determination de novo. See Ex parte Peterson, 117 S.W.3d at 819.
Laches
In the trial court, the State contended that the doctrine of laches barred
appellant’s requested habeas relief. Laches is an equitable doctrine that bars an
applicant’s habeas claim if her unreasonable delay in raising the claim resulted in
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prejudice to the State. See Ex parte Perez, 398 S.W.3d 206, 210 (Tex. Crim. App.
2013) (citing Ex parte Carrio, 992 S.W.3d 486, 487–88 (Tex. Crim. App. 1999)).
The Texas Court of Criminal Appeals has explained that the defense of laches
“typically requires proof by a preponderance of the evidence of two elements:
unreasonable delay by the opposing party and prejudice resulting from the delay.”
Id. at 210 n.3 (citations omitted). In determining the issue of laches in habeas
corpus cases, courts are to consider the totality of the circumstances, i.e., “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.” Id. at 217.
In regard to prejudice, “a court may draw reasonable inferences from the
circumstantial evidence to determine whether excessive delay has likely
compromised the reliability of a retrial.” Id. However, even if the State presents
proof of prejudice, a court “must then weigh that prejudice against any equitable
considerations that militate in favor of granting habeas relief.” Id.
As to the degree of proof required, “the extent of the prejudice the State must
show bears an inverse relationship to the length of the applicant’s delay.” Id. Thus,
“the longer an applicant delays filing his application, and particularly when an
applicant delays filing for much more than five years after [the] conclusion of direct
appeals, the less evidence the State must put forth in order to demonstrate
prejudice.” Id. at 217–18. Although it has not adopted a bright-line rule, the Court
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of Criminal Appeals has recognized that a delay longer than five years “may
generally be considered unreasonable in the absence of any justification for the
delay.” Id. at 216 n.12.
Here, the record reflects that the trial court based its findings and conclusions
on the trial court record and trial counsel’s affidavit. That record shows that
appellant was convicted and placed on community supervision in 2005 and filed
her habeas application in 2017—approximately twelve years after her conviction
and approximately seven years after her sentence was discharged. In his affidavit,
appellant’s trial counsel testified that he no longer had appellant’s file, believed that
it was destroyed in 2008 after Hurricane Ike, did not remember his representation
of appellant, and was “unaware of any available documentation which [he could]
review that would refresh [his] recollection concerning [his] representation of
[appellant].” Accordingly, the record supports the trial court’s findings that the
State has been materially prejudiced in its ability to respond to appellant’s
allegations of ineffective assistance of counsel as a result of her trial counsel’s “loss
of memory, inability to access his files, and the unavailability of any documentation
from which [he] could refresh his memory all of which resulted from the passage
of time due to [appellant’s] unreasonable delay in pursuing habeas remedies.” See
Ex parte Roberts, 494 S.W.3d 771, 776 (Tex. App.—Houston [14th Dist.] 2016,
pet, ref’d) (“Diminished memories and lost evidence weigh heavily in favor of
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laches.”); see, e.g., Ex parte Aruizu, No. 01-15-00250-CR, 2016 WL 1590618, at
*8 (Tex. App.—Houston [1st Dist.] Apr. 19, 2016, no pet.) (mem. op., not
designated for publication).
Further, the record does not reflect any justification for appellant’s delay in
seeking habeas relief. The habeas record indicates that she knew the immigration
consequences of her conviction in 2010, when she was “informed that [her]
immigration status would change.” See Ex parte Vasquez, 499 S.W.3d 602, 613
(Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) (concluding appellant knew
consequences of guilty plea at least by time he was deported and deportation later
affirmed). And, the record further indicates that appellant’s deportation to Mexico
should not have prevented her from filing her habeas application as she did file an
application in 2017, although she remained in Mexico. Appellant unreasonably
delayed more than five years in pursuing habeas remedies in November 2017.
Accordingly, the record supports the trial court’s finding that appellant
unreasonably delayed more than five years before filing her habeas application in
March 2017.
Considering the evidence in the light most favorable to the trial court’s ruling
and deferring to the trial court’s findings supported by the record, we conclude that
that the trial court did not abuse its discretion in finding that laches barred
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appellant’s habeas relief as to her claims of involuntary plea and ineffective
assistance of counsel.

Outcome: We affirm the order of the trial court denying appellant habeas relief.

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