### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-15-00785- CR

The State of Texas, App ellant

v. Robert Luther Trevino, Appellee

F ROM TH E DISTRI CT COURT O F LAMP ASAS CO UNTY, 27TH JUDICI AL DISTRICT

NO. 886 6A, H ONO RAB LE JO HN GAUNTT, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Robert L uther Trevino was char g ed with misapplication of trust funds in an amount of $500 or more with an intent to defr aud. See Tex. Prop. Code §§ 162.031(a) (setting out elements

o f offe nse), .032(b) (spec ify ing that offe nse is third-deg ree felony if person misapplies “$ 5 0 0 o r

more . . . with intent to defr aud”)

. Trevino and the S tate entered into a plea-bar g ain ag ree ment in which he ag ree d to enter a plea of nolo contende re to the char g ed offe nse in exchang e for the State ag ree ing to rec ommend that his adjudication of g uilt be defe rre d and that he be place d on community supervision. See Tex. Code Crim. P roc. a rt. 27.02(5) ( explaining that plea of nolo c ontender e has

same leg al eff

ect as g uilty plea)

. I n acc ordanc e with that ag ree ment, Trevino enter ed a plea of nolo contende re, and the district court deter mined that there was sufficie nt evidenc e to support the plea. During the punishment phase of the hear ing, the State asser ted that ther e was an

err or in the pre- sentenc e investiga tion repor t. Specifica lly , the State mentioned that the restitutionamount listed in the repor t was approximately $8,000 and ref ere nced a differ ent victim than the one alleg ed in the offe nse at issue. See id. art. 42.037(a) (empowe ring trial court sentenc ing defe ndant to require defe ndant “to make restit u tion to any victim of the offe nse”) , (m) (providing that “[a]n order of restitution may be enfor ced by the state or a victim n am ed i n t h e order to rec eive the restitution in the same manner as a judgme nt in a civil action”)

. Fur ther, the State explained that it had previously provided the district court with a letter arg uing that the evid en ce would show that “Qua lity Turf Fa

rms of West Columbi a, Texas, is still owed $1211.25 and that Mike Carter of North Texas H y dromulch Service s is due and pay able $84,325.20.” I n addition, the State contende d that those amounts “ar e due and pay able and

. . . need to be paid as terms and conditions of probation.” I n response , Trevino ur g ed that he did not owe the amounts proposed by the State. At the end of the hear ing, the district court pronounce d that it was go i n g t o d efer Trevino’ s adjudication and place d him on community supervision for ten y ear s, and the district court also explained that it has “cor rec ted the pay

ments on the amount of restitution as follows: $1,211.25 to Quality Turf Fa

rms; $84,325.20 to Mike Carter .” I mmediately afte rwa rds, Trevino moved to wi thdraw his plea of nolo contende re and urg ed that he was rely ing on the amount of restitutio n listed in the pre- sentenc e-inve stiga tion repor t when he ag ree d to the terms of the plea barg ain. The d is tr ic t c o u r t d e n ie d th e r e q

u e s t b u t g r a

n te d T r e v in o th e r ig

h t to a p p e a l “ [i ]n o r d e r to f

ix a ny p r o b le m. ” The d i s trict court’s order of defe rre d adjudication is consistent with its oral pronounce ment, including the amount of re stitut ion owed.

Approxim ately two y ear s afte r the district court defe rre d Trevino’ s adjudication, Trevino filed an applica

tion for writ of ha

beas c orpus. See id. art. 11.072, § 1 (authorizing person

2convicted of felony to seek relief from “an order or a judg ment of convic tion ordering community supervision”). I n his application, Trevino reque sted that he be g rante d an out-of-time appea l in order to appea l the order defe rring h i s ad j u d i cation and placing him on community supervision. See E x parte McCarty , No. 03-14-00575- CR, 2015 WL 2089091, at *1, *4 (Tex. App.—Austin Apr. 29, 2015, no pet.) (mem. op., not desig nated for publication) (addr essing habea s cl ai m that applicant’ s attorney faile d t o file notice of appea l and concluding “that an out-of-time appea l is a permissible reme dy under article 11.072”). Specifica lly , he arg ued that his plea “wa s not fre ely and voluntarily

enter ed” a

nd that “the evidence was leg ally insufficient to support convic tion,” and he also asser ted that his “plea was enter ed based on his understanding of the restitution amount ref lected in the” pre- sentenc e-inve stiga tion repor t, “which was far less than the amount that was ultimately ” impos ed

. I n addition, Trevino contende d that he communicated his desire to appea l the district court’s order to his attorney and that he did not lear n that his attorney did not file the notice of appea l until afte r the deadline had passed. I n response , the State fi led a motion opposing the reque sted relief and arg uing that Trevino’ s reque sted relief was barr ed by the doctrine of lache s. See Ex parte Carrio , 992 S.W .2d 486, 488 (Tex. Crim. App. 1999) (explaining that doctrine of lache s may

serve as basis to deny habea s relief ), overruled in part by Ex parte Perez , 398 S.W .3d 206, 213 (Tex. Crim. App. 2013). The State also filed an aff idavit from Trevino’ s trial counsel in which his attorney aver

red that he had told Trevino on multipl e occa sions that he did not do appellate work and told Trevino to hire a

n appellate lawy er. D u r in g th e h a b e a s h e a r in g , T r e v in o te s ti f

ie d th a t h is tr ia l a tt o r n e y w a s a ls o r e p r e s e n ti n g him in the civil matter, that he did not ag ree to the amount of restitut ion order ed, that he int ended

3to appea l the amount of restitution imposed, that his trial attorney told him that he was g oing to file

an appea l, and that he thought that his attorney had filed an appea l. Fur ther, Trevino explained that he was not informed that his trial attorney did not file an appea l until afte r the deadline for filing an appeal had run. I n his testimony , Trevino discussed how he beg an sear ching for a new at t o rn ey approximately one month a fter being informed that his trial attorney did not file an appea l, how he met with the attorney who ended up repr esenting him in the habe as proc eeding months later, how he decide d t o wait on the outcome of the civil case befor e pursuing a challeng e to the criminal conviction bec ause he did not have enoug h money to pur sue both c ases at the same time, and how he pursued a challeng e to the criminal conviction as soon as he had the financ ial resour ces to do so. I n the hear ing, Trevino also explained that althoug h he was rea dy to proce ed in the civil suit, the suit

was dismiss ed beca

use the other party , North Texas Hy dromulch, did not have any money to pursue its claims, and he stated that he was unawa re of any discussion about the civil case being dismiss ed beca use of the r estitution ordered in the c riminal case

.

I n addition, T revino admitted into e vidence two letters fr om his trial counsel to the district court in which the a ttorney reque sted finding s of fac t a nd conclusions of law so that “I can proce ed with [Trevino’s] appea l,” a letter from his trial counsel to him in which his attorney stated that “I have completed my work in f iling for the appea l on the criminal case ,” and a letter from his trial counsel to him that was mailed afte r the deadline to file the appea l had run explaining that the

case was “in the appea l phase” but that his attorney did not prac tice appellate law and asking Trevino to come pick up the c ase f ile. During the hea

ring , the State did not call any witnesses to the stand but did arg ue that the r equeste d relief was ba rre d by the doctrine of lac hes.

4After convening the hear ing on the writ application, t h e district court issued the

following rele vant finding s of fa ct and c onclusions of law: Finding s of Fa ct F. After applicant was place d on defe rre d adjudicati o n , [hi s] attorney

. . . filed a Motion for NewTrial, and a lso filed a Reque st for F indings of F act. G. The court did not specific ally rule o n t h e M o tion for New Trial, and it was overr uled by opera tion by

law. H. After applicant was place d on defe rre d adjudication[, his] attorney

. . . wrote two letters to the Court, and in both letters indica ted he wa s pursuing an appe al. I . No notice of

appea l was filed by

trial counsel. J

. Applicant did not lear

n that a Notice of Appe al had not bee n filed until F ebrua ry 24, 2014. At that time, the time for filing a notice of appea l had alre ady

expired. K. Applicant reta ined Walter M. Reave s , J r., to repr esent him in all habea s and appellate proce eding s in J uly of 2015. L

. Applicant retai n ed counsel to reque st an out of time appea l as soon as he was financ ially

able to do so. Conclusions of L aw B. A pplicant’s Notice of Appe al was not filed on a timely basis. C. Applicant was entitled to appea l under the law, having rec eived approva l from the trial court to appe al. D. Applicant de sired to appe al from the judg ment. E. Applicant is entitled to the opportunity to file an out- o f- t i me appea l. See, e.g. , Ex parte Dorsey , No. AP-75986, 2008 WL 4151929, *1 (Tex. Crim. App. Sept. 10, 2008) (not desig nated f

or publication).

5Acc ording ly , the district court g rante d Trevino’ s application. After the district court

made its deter

mination, the State appea led the district court’s order

. See Tex. Code Crim. Proc. art. 1 44.01(k) (authorizing State to appea l order g ranting habeas relief under article 11.072). We will aff irm the district court’s or der.

STANDARD OF REVIEW

Appellate c ourts revie w a tria l court’s ruling on a habe as cla im under an a buse-of

discretion st andar d. Kniatt v. Stat e , 206 S.W .3d 657, 664 (Tex. Crim. App. 2006). “A trial court abuses its discretion when its ruling is arbitra ry or unrea sonable.” 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 rea sonable disag ree ment.” 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,

we “re view the rec ord evidenc e in the light most favor able to the trial court’s rulin g. ” K n i a t t , 206 S.W .3d at 664. Fur

ther, “[a]n applica

nt’s delay in se eking habea s corpus relief may prejudice the cr edibility

of the c laim.” Id. An individual who has been convicted of a felony or misdemeanor may seek habea s “re lief from an order or a judgme nt of conviction order ing community supervision. ” T ex . Code Crim. Proc. art. 11.072, § 1. “At the t i m e t h e ap p l i cation is filed, the applicant must be, or have been, on community supervision, and the application must challeng e the leg al validity of

. . . the conviction for which or order in which community supervision was imposed; or . . . the conditions

After the State filed its notice o f ap p ea l , i t filed a reque st with the district court for 1 additional finding s of fa ct and c onclusions of law spec ifically perta ining to the doc trine of lac hes. 6of communi ty supervision.” Id. § 2(b); see also Ex parte Motta , No

. 1 3 -1 3-00667-CR, 2014 WL

6602280, at *1 (Te x . App.—Corpus Christi Nov. 20, 2014, no pet.) (mem. op., not desig nated f or publication) (addr essing appea l of habea s application filed unde r ar ticle 11.072 by individual who pleade d g uilty to offe nse “and was place d on defe rre d-adjudica t i o n co mmunity supervision”). I n g ener al, a post-conviction writ of habea s corpus may not be used to decide matters that could have been raised at trial and on direc t appea l. See Tex

. C o d e C ri m . P roc. art. 11.072, § 3. To succe ed under a pos t -c o n viction writ of habea s corpus, “the applicant bear s the burden of proving , by a preponde ranc e of the evidenc e, the fac ts that would entitle him to relief .” Ex parte Ali , 368 S.W .3d 827, 830 (Tex. App.—Austin 2012, pet. ref ’d). I n habea s proce eding s, “[v] i rt u al l y ever y fac t finding involves a cre dibilit y deter mination,” and “the fac t finder is the ex clusive j udg e of the credibility of t he witnesses.” Ex parte Mowbray , 943 S.W .2d 461, 465 (Tex. Crim. App. 1996). For habea s proce eding s under article 11.072, “the trial court is the sole finder of fac t,” and appellate courts aff ord “almost total defe renc e to a trial court’s fac tual finding s when supported by the re cord, e specia lly when those finding s are based upon cre dibilit y and demeanor.” Ex par t e A l i , 3 6 8 S.W .3d at 830; see also id. (stating that there is less potential for di sreg arding trial court’s findings in article 11.072 appea l than in appea l under a rticle 11.07 whe re c ourt of cr iminal appeals “ is the ultim ate f act f inder” ).

DISCUSSIO N I n its sole issue on appea l, the State urg es that the district court err ed by g ranting the relief reque sted beca

use the doctrine of lache s applied in this case and should ha ve barr ed Trevino from pursuing an out-of-time appea l. See Stansberry v. State , 239 S.W .3d 260, 2 64 (Tex. Crim.

7App. 2007) (explaining that out-of-time appea l may be g rante d throug h habea s relief and that if outof-time appea l is g rante d, defe ndant is returne d to point in appellate proce ss when he can g ive notice of appea l and perf

ect his appea l); cf. Palmer v. State , No. 03-15-00525- CR, 2015 WL 5096318, at *1 n.1 (Tex. App.—Austin Aug

. 28, 2015, pet. ref ’d) (mem. op., not desig nated for publication) (noting in context of article 11.07 of Code of C riminal Procedur e that reme dy for untimely filed notice of appea l “is to file a post-convic tion writ of habea s corpus” ).

The doctrine of lache s is a common-law principle that preve nts a party from asser ting

a claim when there was an un re as o n ab le delay in prese nting the claim and when the other party i s p re j u d i ce d b y the delay , and that principle applies in the habea s context. See Ex parte Perez , 398 S.W .3d at 210 & n.3. Among other “re levant circ umstances,” a trial court may consider “fa ctors such as the leng th of the applicant’ s delay in filing the application, the rea sons for that delay , and the deg ree and ty

pe of prejudice resulting from the delay .” Id. at 217; see also id. (stating that there is “an inverse rela tionship” betwee n extent of prej u d ice that must be shown and leng th of delay ). When de termining if the State has been prejudice d, a court may consider “ any

thing that place s the State in a less favor able posit ion, including prejudice to the S tate’s ability to retry a defenda nt, so that [t he] court may consider the totality of the circ umstances in deciding whether to g rant equitable relief .” Id. at 215. A t rial court may also consider “the dim inished m emories of trial participa nts and the diminis hed availab i l i ty of the State’s evidenc e, both of which may often be said to occur bey ond five y ear s afte r a conviction bec omes final.” Id. at 216; see also id. at 217-18 (explaining that “the longe r an applicant delay s filing his application, and particula rly when an applicant delay s filing f or much more than five y ear s afte r conclusion of di rec t appea ls, the l ess evidence the State

8must put forth in order to demonstrate prejudice ”). Stated differ ently , a court may “re ject the State’s relianc e on lache s when the rec ord shows that” the “dela y was not unrea sonable beca use it was due to a justifiable excuse or e x cusable neg lect,” tha t “the State would not be materia lly prejudice d as

a result of the delay ,” or that “the applicant is entitled to equitable rel i ef fo r o t h er compelling

rea sons.” Id. at 218.

Viewing the evidenc e prese nted to the district court in the light most favor able to the court’s ruling and g iven t hat reviewing courts mus t aff ord al m o s t t o t al defere nce to a trial court’s finding s that are supported by the rec ord, we must c onclude that the district c ourt did not abuse its discretion when it deter

mined that Trevino wanted to appea l the district court’s order defe rring his adjudication, that Trevino’ s lawy er informed Trevino and the court that he was actively pursuing an appea l, that no appea l was filed, that Trevi n o d i d n o t d iscover that no appea l had been filed until afte r the deadline to file had run, and that Trevino hired an attorney to reque st an out-of-time appea l when he was financ ially able to do so. See Ex parte McCarty , 2015 WL 2089091, at *3 (explaining that claim that attorney did not timely file appea l fell u n d er ar t i cl e 11.072 beca use it challeng es l ega l i t y of conviction and that out-of-time appea l may be g rante d as reme dy ); cf. Ex parte Coy , 909 S

. W .2d 927, 928 (Tex. Crim. App. 1995) (conc luding that applicant was “entitled to an outof-time appea l” beca

use his counsel fa i l ed t o comply with proce dural rule and, there fore , denied applicant “ of an oppor

tunity for mea ningf ul appellate r eview” ). Further, althoug h the rec ord does reve al that a y ear and sever al months passed betwee n the time when Trevino discovere d that his trial attorney had not filed a notice of appea l and when he filed an a

pplication for wr it of habea s corpus, c ourts have ty pically held that the doctr ine

9of lache s applied in the habea s context when the delay s wer e signific antly longe r than the one at

issue in this case . See Ex parte Smith , 444 S.W .3d 661, 663 (Tex. Crim. App. 2014) (noting delay

o f 1 0 y ear s and rema

nding case to trial court to allow applicant opportunity to explain delay s o th a t d e te r mi n a ti o n r e g a r d in g w h e th e r la c h e s a

p p li e s c o u ld b e ma d e ) ; E

x p a r te Ca r

r io , 9 9 2 S. W. 2 d a

t 488-89 (holding application for post-conviction writ of habea s corpus in abey ance while trial court addre ssed issue of whether doctrine of lache s prohibited relief reque sted fourtee n y ears after

c o n v ic ti o n w a s im

p o s e d ) ; E x p a r te R o b e r ts , N o . 1 4

- 1 5

- 0 0 3 3 8

- CR ,

_ _ _ S. W. 3 d

_ _ _ , 2 0 1 6 W L 1 0 9 7 7 3 1 , at *3-4 (Tex. App.—Houston [14t h Dist.] Mar. 10, 2016, pet

. ref ’d) (conc luding that trial court did not abuse its discretion by deny ing habea s application wher e appli ca n t waited thirteen y ear s to file application); Ex parte Gonzales , No. 09-14 -0 0 250-CR, 2015 WL 690823, at *2 (Tex. App.—B eaumont Fe b. 18, 2015, no pet.) (mem. op., not desig nated for publication) (dec iding that trial court could have rea sonably conclude d “that the nine-y ear delay was unrea so n ab l e and unexplained, compromi s ed the reliability of a retria l, and was prejudicia l to the State”); Ex parte Rey na , 435 S.W .3d 276, 280 (Tex. App.—Waco 2014, no pet.) (dete rmining that trial court did not

err in deny ing relief wher e delay was twenty y ear s long) ; see also Ex parte Perez , 398 S.W .3d at 216 n.12 (re cog nizi ng that “dela y s of more than five y ear s may g ener ally be considere d unrea sonable in the abse nce of

any justification for the de lay ”). Moreove r, when asser

ting that it has been prejudice d by the delay , the State does not arg ue on appea l a

nd did not a

rg ue in the habe as hea

ring that the delay

would neg atively impact its ability to pursue the case , that the evidenc e that the State would need has been compromised due to the delay , or that th e memories of those involved have diminis hed. I nstead, the State arg ues on

10appea l that it has been prejudice d beca use it should be able to rely on the finality of court judgme nts when seeking to rec over restitution. Specifica lly , the State contends that g ranting habea s relief will undermine “the State’s interest in being able to proce ed with a judgme nt an d order to include the eff orts of probation depar

tments to collect restitution

. . . without conce rn that afte r such eff orts have been ma de the ve ry

basis for those e ffor

ts may be subjec t to attack af

ter the de adline for

appea l.” Although the State does have a “br o ad interest in the finality of a long- standing conviction,” see Ex parte Perez , 398 S.W .3d at 2 18, we note that this ty pe of g ener al interest is somewhat lessened in this case g iven the amount of delay actua lly at issue and g iven the absenc e of any showing that the State’s ability to pursue this particula r case h ad somehow been prejudice d. F u r th e r , w e c a

n s e e n o r e a s o n to c o n c lu d e th a t th e f a c t th a t th is c a s e in

v o lv e s r e s ti tu

ti o n to th e a ll e g e d victim should, on i ts own, compel a de termination that the State has somehowbeen pr ejudiced.

I n addition to arg uing that it has been prejudice d in the manner descr ibed above, the State also ref

ers to the companion civil case betwee n North Texas Hy dromulch, which was owned by Carter , and Sprinkleman, L L C, which was owned by Trevino, and arg ues that Trevino was awa re of the c onnection betwe en the suits and eve n informed the district c ourt that if the jury in the civil suit returne d a damag es awa rd that was less than the amount of restitution order ed, “we would like for [t he district court] to take [t hat] in[ to] consideration and may be suspend some of that pay ment.” Fur ther, the State highlig hts tha t T revino waited ten months a fter the civil suit had been dismiss ed with prejudice to file his a pplication for wr it of habea s corpus. I n light of the prec eding , the State contends that if the relief is g rante d, “the dismiss al of the companion civil case in relianc e of finding and judgme nt of restitution [wil l have] harme d the overa ll interest of society ,” including the interest

11of the victim in this c ase, by aff ecting “the ability [of] courts to act and rely on the finality of court finding s and order s that have passed the deadlines for appea ls” and by aff ecting the ability of citizens “to rely on order s of the co u rt s fo r relief and protec tion.” Finally , the State urg es that the State’s and s o ci ety ’s interests “would not have been materia lly prejudice d” if Trevino had soug ht relief befor e the civil suit was dismiss ed beca use “the parties to the civil suit could still [have] protec t[ ed] their intere sts.”

To the extent that the State is asser ting that its interests and those o f its citizens would be prejudice d if the reque sted relief wer e g rante d beca use the companion civil suit had alre ady been dismiss ed in relianc e on the amount of restitution order ed in this case , we have been unable to find any support for the proposition that this ty pe of alleg ed prejudice is a rele vant consideration when deter

mining whether the doctrine of lache s should preve nt an applicant seeking habea s relief from obtaining an out-of-time appea l. See Ex p a r t e Saenz , No. WR -80,945-01, ___ S.W .3d ___, 2016 WL 1359214, at *5 (Tex. Crim. App. Apr. 6, 2016) (explaining that “the doctrine of lache s is intended to addre ss the broade r interests of the criminal-justice s ys t em , s uch as prejudice to the State’s ability to prosec ute a defe ndant or to respond to alleg ations due to the loss of evidenc e, rathe r than being focuse d on the ills of repe tition and wasted resour ces cause d by an applicant’ s failure to act more quickly in raising his c laims” (empha sis a dded))

. Moreove r, nothing in the rec ord in this

case indicates that the civil suit was dismiss ed beca use of or in response to the judgme nt in the underlying criminal case . On t he contrary , as discussed a bove, Tre vino testified that the civil suit

was dismiss ed beca

use North Texas Hy dromulch did not have the funds t o p u rs u e t he suit, and T revino rela ted that he was unawa re of any discussions indicating that the suit was d i s m i s s ed beca use a judg ment had bee n issued in the criminal ca se. 12For all of these re as o n s , we must conclude that the district court did not abuse its

discretion by reje cting the State’s asser tion that T re v i n o ’s claim was barr ed by the doctrine of lache s or by g ranting Trevino the habea s relief that he reque sted. Acc ording ly , we overr ule the State’s issue on appe al.

CONCLUSION

Having overr

uled the State’s issue on ap p ea l , we aff irm the district court’s order g ranting Trevino’ s application for writ of habe as cor

pus.

__________________________________________ David Pury ear , J ustice Be fore Chief J ustice Rose, Jus tices Pury ear and Pember

ton Affir med Filed: June 23, 2016 Do Not Publish

13