Ex parte Vasquez

• Decision Date: 28 July 2016
• Docket Number: NO. 01-15-00728-CR,01-15-00728-CR
• Parties: Ex Parte Jaime Vasquez
• Court: Texas Court of Appeals

499 S.W.3d 602

Ex Parte Jaime Vasquez

NO. 01-15-00728-CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued July 28, 2016

Rehearing En Banc Overruled September 13, 2016

Discretionary Review Refused February 8, 2017

Franklin Bynum, Bynum Law Office, Houston, TX, for Appellee.

Devon Anderson, District Attorney-Harris County, Alan Curry, Assistant District Attorney, Houston, TX, for State.

Panel consists of Justices Jennings, Keyes, and Bland.

OPINION

Jane Bland

, Justice

Appellant, Jaime Vasquez, appeals the denial of his application for a writ of habeas corpus filed seventeen years after his 1997 guilty plea and judgment of conviction for the offense of indecency with a child. Vasquez successfully completed six years' deferred adjudication community supervision for the offense. The trial court denied Vasquez's habeas application both on its merits and, alternatively, on the basis that the application was barred under the doctrine of laches because the delay in filing materially prejudiced the State. We affirm.

BACKGROUND

On May 28, 1996, Vasquez was charged with the felony offenses of aggravated sexual assault of a child under 14 years of age and indecency with a child by contact.¹ Pursuant to a plea agreement, the State abandoned the aggravated sexual assault charge. Vasquez pleaded guilty to the offense of indecency with a child by contact. On March 14, 1997, in accordance with the plea agreement, the trial court entered a judgment assessing punishment at six years' deferred adjudication community supervision. Vasquez did not appeal the judgment and the judgment subsequently became final. On March 18, 2003, Vasquez fulfilled the conditions of his community supervision, and he was discharged.

Prior to Vasquez's completing his community supervision in March 2003, a federal immigration court ordered Vasquez deported to his home country of Mexico because Vasquez was not a legal resident in the United States when he pled guilty to the offense of indecency with a child. On May 20, 2004, the Board of Immigration Appeals (BIA) affirmed the immigration court's determination that Vasquez was subject to removal.

On September 23, 2014, while in custody after attempting to reenter the United States, Vasquez filed this application for a writ of habeas corpus—seventeen years after his guilty plea and the subsequent final judgment, eleven years after being discharged from community supervision, and ten years after the BIA's final order affirming his deportation. Vasquez asserts that he is currently confined and restrained because, as a result of the 1997 judgment, he was deported, cannot legally enter or remain in the United States, and is required to register as a sex offender. In requesting habeas relief, Vasquez complains that such collateral consequences of the 1997 judgment are an illegal confinement and restraint of his liberty because (1) he is actually innocent of the crime to which he pled guilty, (2) his guilty plea was involuntarily and unintelligently entered, and (3) he received ineffective representation from his defense counsel. On August 11, 2015, the trial court denied Vasquez's habeas application. On appeal, Vasquez challenges the trial court's determination that Vasquez failed to meet his burden to show that he is entitled to relief and that his claims are barred by laches.

DISCUSSION

In its findings of fact and conclusions of law, the trial court found that (1) Vasquez failed to demonstrate any of the three grounds for relief asserted in his habeas application and (2) to the extent that there was any merit to Vasquez's claims, the requested habeas relief was barred by laches because “determining the details of the plea bargain, discussions among parties, and reprosecuting the case-in-chief- are difficult and prejudice the State.”

I. Standard of Review

Texas Code of Criminal Procedure article 11.072

establishes the procedure for an applicant to seek habeas corpus relief “from an order or a judgment of conviction ordering community supervision.” TEX. CODE CRIM. PROC. ANN. art. 11.072, § 1 (West 2005). Under article 11.072, we have jurisdiction to consider appeals of denials of habeas corpus relief from such orders or judgments. Id . art. 11.072, § 8.

In reviewing a trial court's ruling on a habeas corpus application, we view the facts in the light most favorable to the trial court's ruling and uphold that ruling absent an abuse of discretion. See Ex parte Wheeler , 203 S.W.3d 317, 324 (Tex.Crim.App.2006)

; Kniatt v. State , 206 S.W.3d 657, 664 (Tex.Crim.App.2006). In an article 11.072 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). Thus, in conducting our review, we defer to the trial court's factual findings when supported by the record. See

Ex parte Amezquita , 223 S.W.3d 363, 367 (Tex.Crim.App.2006) ; Ex parte Thompson , 153 S.W.3d 416, 417–418 (Tex.Crim.App.2005). We similarly defer to the trial court's rulings on the application of the law to fact questions if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. See

Ex parte Peterson , 117 S.W.3d 804, 819 (Tex.Crim.App.2003), overruled on other grounds by Ex parte Lewis , 219 S.W.3d 335 (Tex.Crim.App.2007).

II. Actual Innocence

Vasquez's first ground for habeas relief alleges that he is actually innocent of the offense of indecency with a child and that the complainant “has recently come forward and recanted her original statements to the police.” When asserting a claim of actual innocence based on newly discovered evidence, the evidence presented by the habeas applicant must constitute affirmative evidence of the applicant's innocence. Ex parte Franklin , 72 S.W.3d 671, 678 (Tex.Crim.App.2002)

. Not only must the habeas applicant make a truly persuasive showing of innocence, he must also prove that the evidence he relies upon is “newly discovered” or “newly available.” Ex parte Brown , 205 S.W.3d 538, 545 (Tex.Crim.App.2006). To succeed in an actual innocence claim, the habeas applicant must demonstrate by clear and convincing evidence that no reasonable juror would have found him guilty in light of the new evidence. Ex parte Navarijo , 433 S.W.3d 558, 560 (Tex.Crim.App.2014). For the reasons below, we uphold the trial court's denial of Vasquez's actual innocence claim.

A. Newly Discovered Evidence

Vasquez's claim of actual innocence rests upon his assertion that complainant recently recanted her statements. A request for habeas relief on a claim of actual innocence requires that the applicant demonstrate that his claim is based upon “newly discovered” or “newly available” evidence:

Not only must the habeas applicant make a truly persuasive showing of innocence, he must also prove that the evidence he relies upon is “newly discovered” or “newly available.” The term “newly discovered evidence” refers to evidence that was not known to the applicant at the time of trial and could not be known to him even with the exercise of due diligence. He cannot rely upon evidence or facts that were available at the time of his trial, plea, or post-trial motions, such as a motion for new trial.

Brown , 205 S.W.3d at 545

; see also

Ex parte Holloway , 413 S.W.3d 95, 97 (Tex.Crim.App.2013) (“An applicant for habeas relief based on a claim of actual innocence must demonstrate that the newly discovered evidence, if true, creates a doubt as to the correctness of the verdict sufficient to undermine confidence in the verdict and that it is probable that the verdict would be different on retrial.”). Accordingly, habeas relief on Vasquez's actual innocence claim would be unavailable if the complainant's recanting was either known to the defense at the time of Vasquez's guilty plea or could have been known with proper diligence. See

Brown , 205 S.W.3d at 545 (citing Ex parte Briggs , 187 S.W.3d 458, 465 (Tex.Crim.App.2005), and Ex parte Tuley , 109 S.W.3d 388, 403 (Tex.Crim.App.2002) ).

The trial court held that Vasquez failed to demonstrate any newly-discovered evidence in support of his actual innocence claims. In holding that complainant's recanting was not new evidence, the trial court found that “[a]ccording to documentation included in the State's file, [complainant] recanted to the Child Protective Services counselor, the Prosecutor and her mother, Mrs. Vasquez, prior to the date of Applicant's plea of guilty.” The record contains evidence from the prosecution's file supporting the trial court's findings, including (1) a note on the inside front cover of the state's file stating that “CW recanted;” (2) a note referencing a conversation the prosecutor had with a caseworker that reads, “her impression is that CW's mom got so hysterical that CW changed story. She thinks something [between defendant and] CW happened. She didn't think CW made all this up .... CW and her mom are very close. CW wants to go home with mom.” and (3) a note from a March 13, 1997 interview of complainant by the prosecutor stating that complainant told the prosecutor that it “[did not] happen” and that “she misses her mom.” Accordingly, the record contains evidence of multiple instances in which the complainant recanted before Vasquez's guilty plea in 1997.

The trial court further found that there was no evidence in the record that complainant's recanting was hidden from the defense. Rather, evidence before the trial court suggested that complainant's recanting was known to the defense or could have been known with proper diligence. At the habeas hearing, Vasquez's defense counsel initially testified that he was unaware of complainant's recanting until the habeas proceeding, but he also testified that his memory had faded and that he had no reason to believe that the prosecution withheld evidence of the complainant's recanting. Counsel subsequently confirmed that the complainant's recanting may have been the basis for obtaining dismissal of the aggravated sexual...