### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 21
- 00311
- CR

Ex parte Philip Clinton Allen

FROM THE 207TH DISTRICT COURT OF COMAL COUNTY NO. 2010
- 110
- 001 , THE HONORABLE JACK H. ROBISON , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
Phillip Clinton Allen filed an application f or a writ of habeas corpus seeking an out of time appeal from his prior conviction. See Tex. Code Crim. Proc. art. 11.0 72

. The trial court denied Allen ’ s application . A llen appea ls the trial court ’ s ruling. We will affirm the trial court ’ s order.

BACKGROUND

In 201 0 , a grand jury charged A l l en with the offense of online solicitation of a minor for conduct occurring on or around Decembe r 2009

. See Tex. Penal Code § 33.021 (c)

. 1
The t rial occurred o ver a ye ar later in April 2011

. During the trial, Ma ry Smith (pseudon ym)

1 Allen was char ged unde r subsection 33.021 (c) , which p rohibi t s an individual from soliciting a minor online to meet another person , including the ac tor, with the intent that the min or will engage in se xual b e havior with the a ctor or the othe r p e r son. Tex. Penal Code § 33.021 (c) . After the trial, the Court of Criminal Appeals determined that a different portion of section 33.021, subsection 33.0 21(b) , was unconstitu t ional

. Ex parte Lo , 424 S.W.3d 10, 14, 27 (Tex. Crim. App. 2013)

. That pro vis io n, in contrast to subsection 33.021(c), prohibited so meone from communicating online with a m inor in a sexually e xplicit man ner . Id. In its opinion, the Court also exp lained that statutes like subsecti on 33.021(c) “ have been routinely upheld as cons tit ut ional. ” I

d. at 16

.2

testif ied that she took cheerleading lessons from Allen starting when she was thirteen yea rs old, that Allen h ad multiple conversations with her about sex and about having sex with her, that they exchanged text messages that were sexual in nature, that A llen ask ed her to take and show him pho tos of her naked, that she took photos of he r breasts and vagina for him to look at , that they engaged in phone sex , that he “ rub [ ed] his penis on my but t ” when they were at a cheerleading competition , and that Allen offer ed to ta ke her to a hotel to have sex. Copies of text messages between Allen and Smith were admitted into e vidence, including one in which Allen said that he could pick her up and ta ke h er to a hotel.

At trial, a recording of Allen ’ s interview by the pol ice was admitted into evidenc e. On the recording, A ll en admitt ed that he told Smith it would be nice to see nak ed photos of her, that he later saw pictures of Smith ’ s breasts and vagina , that he tried to teach her ho w to masturbate , that they had graphic conversations about sex , and that they discussed him wanting to perform oral sex on her and engage in ot her sexual acts

. After considering the evidence presented, t he jury sentenc ed Allen to six years ’ imprisonment but also recommend ed th at Allen be place d o n community supervision for th e offense , and the tri al court ordered that Allen be p la c ed o n communit y super vision for ten years. See id. § 12.33

.

Almost ten years later i n Ja nuary 2 0 2 1 , Allen filed a n application for wr it of habeas corpus seeking an out

- of

- time appeal. See T ex. Code Crim. Proc. ar t. 11.072

. In his habeas application, Allen asser ted that his trial attorney ’ s health began d eterior ating shortly after the co nvic tion , th a t his t rial attorney passed away approximately four m onths after h i s conviction , that his trial attorney did not in form hi m of his appe llate rights o r the impending deadline for fi ling a notice of appeal, that he would have appealed his conviction if he h a d been
i nformed of that option , and that he was told by an associat e of his trial attorney that the de adline3

for fi ling an appeal had run

. Regardi ng arguments he would have prese nted on appeal, Allen stated that he would have appealed “ the inclus ion of [ t he] anti

- defensive pr ovision language ” in the jury charge that he a rgues ne g ated “ the ess ential element of intent. ” R elatedly , Allen argued that his trial attorney ’ s failur e to inform hi m of his appellate rights and impending de adlines deprived h im of th e opportun ity to present his appellate complaint and const ituted i neffective assistan ce of counsel , entitling him to an out

- of

- ti me appeal.
A s support for his request for habeas relief, Allen attached to his habeas application his own affidavit and an un s igned and unsworn affidavit purportedly fr om his trial
attorne y ’ s associate , David Wyrick. I n his own aff idavit, Allen stated that his trial attorney

“ did not discus s my appellate rights or deadlines . . . prior to, o r after my conviction ” ; tha t his tria l attorney “ did not discuss any appella te issues or errors ” ; tha t he last spoke with his tri al attorney on the day of trial ; and that he learned that his trial attorney passed away a few months

a fter the trial conc luded

. Further, Allen asserted that if he “ had been informed of [his] appellate rig hts and deadlines, [he ] would have hired appellate counsel and filed a n otice of appeal within the deadline. ”
T he unsigned affidavit attributed t o Wyrick st ated that in June 2011 Allen ’ s trial
attorne y enlisted h i s help w ith several criminal defense ca ses, including another case involving Allen. The document described All en ’ s trial attorney as “ very fatigued, inattentive, impulsive ,

ca valier, sho rt fused [,] and irritable ” and as having “ a li mited unde r standing of crimina l procedure and criminal defense

. ” Further, the docum en t stated that Allen ’ s trial attorney abruptly di ed a few months after Allen ’ s trial . Regarding Alle n, the document related tha t by the ti me Wyrick learned of Allen ’ s conviction, “ his thirty d a y deadline to file a notice of intent t o appeal the convictio n . . . had expired

. ” When de s cribing Wyrick ’ s in teraction with Al len, the4

document explained that Allen related th at he did not commit the offense for which he had been convicted , that Wyrick t old Al len a few months after Allen ’ s co nviction that the dead line for filing an appeal had passed , that Allen w as unaware of a deadline for filing an appeal , and that he was unaware that his trial attorney had been sick

. Regarding a conversat ion Wyrick h a d with Allen ’ s trial counsel, the docum ent explained that All en ’ s trial counsel communicated that he and Allen both “ felt proud and fortunate that . . . A llen had been ” placed on community supervision given the nature of the offense

.

After Allen filed h i s application, the State filed a resp onse summari zing the

e vidence p resented at trial indicating that Allen c ommitted the a lleged offense , including Sm ith ’ s testimo ny , text exchanges between Allen and Smith , evidence regarding photographs of Sm ith naked t h at Allen viewed , and the intervie w in which Allen made admi ssions about the sexual
nat ure of his relationship with Smith

. Further, the State asserted that the reli ef that Allen requested was ba rred by the do ctrine of laches , highlight ing th at Allen did n o t provide any expla nation for his delay in seeking an out

- o f

- time appeal. Further, the State argued that th e trial court should deny the requ ested relief unless Allen filed another affidav it or presented

some other evidence explaining the d elay. Allen d i d not s ubmit any additional evidence

.

Several weeks l ater and w ithout conven ing a hearing , th e trial co urt denied Allen ’ s application af

ter considering the applicati on , the accompanying documents , the
St ate ’ s re sponse , and the record f rom Allen ’ s trial

. T h e trial court issued findin gs of fact and conclusions of law , including the following :

1. Applicant h as not shown circumstances justifying his delay in seeking relief, and his delay was not reasonable. 2. The State of Texas has been prejudiced by App l icant ’ s length y delay in filing5

his claim reg arding his long

- stand ing conviction. Witnesses involved in the instant offense likely no longer have an independent or complete rec ollection of the events, including the su rr ounding circumsta nces; indeed, Appl i cant made much of the complainant ’ s memory issu es at trial nearly a decade ago, and Applicant himself cla imed memory issues in his interview. 3. Though Applicant admits he was a ware of his appellate deadline nearly a decade ago, he sat on his alleged cla i m for nearly t wice the five

- year period the Cour t of Criminal Appe als has indicated can implicate laches. 4

. The equitable doctrine of laches bars relief in this case. 5. In an y even t, Applicant and his claims are not credible.

Alle n appeals the trial cour t ’ s denial of his applica tion for writ of habeas co rpu s.

STANDARD OF REVIEW AND GOVERNING LAW
An individual convi cted of a felony or misdemeanor may seek habeas “relief
from an order or judgment of conviction ordering community s upervision.” Tex. C ode Cr im.
Proc. art. 1 1.072, § 1

. When a person files a w rit application, he “mu st be, or have been, on community superv ision, and the application must challenge the legal validity of .

. . th e convicti on for which or order in which co mmunity supervisio n was im posed” or “the conditions of community supervision.” Id. art. 11.072, § 2(b)

. When making its determination, the trial
court “ may order affidavi ts, depositions, inter rogatories, or a he aring, and may rely on [it s] personal recol lection. ” Id. art

. 11.072 , § 6(b ) ; see also id. art. 11.072, § 6(c) ( set ting out when hearing may be he ld “ [i]f a hearing is ordered ” ). A ppellate courts have construed this language
to mean that no evidentiary hearing is required under article 11.072 whe n the issues can b e resol ved without one . See Ex parte Salazar , 510 S.W.3d 61 9, 62 7 (Tex. App.

— El Paso 2016, pet. ref ’ d) ; Ex parte Arjona , 402 S.W.3d 312, 319 (T e x. App.

— Beaumont 2013, no pet.) ; s ee Ex6

parte Gonzalez , 323 S.W.3d 557, 558 (T ex. App.

— Waco 2 010, pet. re f ’ d) ; E x parte Cummins , 169 S.W.3d 752, 757 (Tex. App.

— Fort Worth 2005, no pet.)

.

Appellate courts review a trial court ’ s ruling on an application for w rit of habeas corpus under an abuse

- o f

- discretion standard of review. Ex par te Zantos

- C ue bas , 429 S.W .3d 83 , 87 (T ex. App.

— Houston [1st Dist.] 2014, no pet.)

. Similar ly, appellate court s review a trial court ’ s decision not to convene a hearing under article 11.072 for an abuse of discretion. Ex parte Salazar , 510 S.W. 3 d at 626

- 27

. “A trial c ourt abuses its d i s cretion when its ruling i s arbitrary or unreasonable.” Gay tan 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 was within the zon e of reasonable disagreem ent.” Bigo n v. S t a te , 252 S.W.3d 360, 367 (Te x. Crim. App. 2008) ;

see Lopez v . State , 86 S.W.3d 228, 230 (Tex. Crim. App. 2002)

. Under that standard, appellate
courts review the record evidence “ in the light most favorable to the trial court ’ s ruling.”
Ex parte Ne lson , 5 4 6 S.W.3d 742, 746 (Tex. App.

— Houston [1st Dist.] 2 0 18, no p et.)

.

To succeed under a po st

- conviction writ of habeas corpu s, “the applicant bears the burden of proving, by a preponderance of the evidence, the facts that would entitle him to relief. ” Ex pa r t e Ali , 368 S.W.3d 827 , 830 (Tex. App.

— A ustin 2012, pet. r ef ’ d)

. In habeas corpus proceedings, “[v]irtually every fact finding involves a credibility determi nation,” and “the fact finder is the exclusive judge of the credibility of the witnesses. ” Ex pa r t e Mowbray , 943 S.W.2d 461, 465 (Tex. Crim. App. 1 996)

. F or habeas proceedings under article 11.072 , “the trial court is
the sol e finder of fact,” and appellate courts afford “almost total deference to a trial court ’ s factual findings when suppor ted by t h e record, espec ially when those findings are based upon

cr edibility and demeanor.” Ex parte Ali , 368 S.W.3d at 830

. This deferent ial review applies even when the findings are based on affidavits rather than live testimony. Ex parte T hompson ,7

15 3 S.W.3d 4 16, 418 n.1 (Tex. C rim. App. 2005)

. “When t he trial cour t ’ s findings of fact in a habeas corpus proceeding are supported by the record, the y should be accepted” by the reviewing court. See Ex parte Amezquita , 223 S.W.3d 363, 367 (Tex . Crim. App . 2006)

.

The writ of habeas corpus is an extraordinary rem edy. S ee E x parte Smith , 444 S.W.3d 661, 666 (Tex. Crim. App. 2014)

. “[H]abeas is governed by the elements of equity and fairness, and those elements require a consideration of unreas onable dela y.” Ex p a rte Bowman , 447 S.W.3d 887 , 888 (Tex. Crim. App. 2014)

. Acco r dingly, the common

- law doctrine of laches applies to habeas applications. See id. ; Ex parte Smith , 444 S. W.3d at 66 6

- 68 ; Ex parte Perez , 398 S.W.3d 206, 215 (Tex . Crim. App . 2013) ; Pa stenes v
. S tate , No. 03

- 16

- 00102

- CR,
2017 WL 2 928112, at *2 (Tex. A pp.

— Austin July 6, 2017, no pet.) (mem. op., not designated for publication). The doctrine has been defined as meaning “neglect to assert right or claim which, taken together wi th lapse of time an d o ther circumstances causing prejudic e to an adverse party , operates as a bar in a court of equity. Also, it is the n eglect for an unreasonable and unexplained length of time under circumstances permitting diligence, to do what in law, should hav e been d o n e .” Ex parte Perez , 398 S.W.3d at 210 (quoting Ex parte Carrio , 992 S.W.2d 486, 487 n.2 (Tex. Crim. App. 1999) ).

When det ermining whether laches applies, courts should “keep, at the fore, the
State ’ s and society ’ s interest in the fi nality of c onvictions [ ] and cons ider the trial participants ’ faded memories a nd the diminished availability of evidence.” Ex parte Smith , 444 S.W.3d

a t 666 ( footnotes omitted)

. Laches is determined using a “sliding scale,” wherein “the extent of the pre judice the State m ust s how bears an inverse relations hip to the length of the applicant ’ s delay.” Ex parte Perez , 398 S.W.3d at 217

. The rationale for the sliding

- scale approach is based8

on the common

- sense understanding that the longer a case has been d elayed, the more l ike l y it is that the reliability of a retrial has been compr omised. Id. at 218

.

In making a la ches determination , “courts should consider

. . . [1] the length of applicant ’ s delay in requesting equitable relief, [2] the reasons for the del ay, . . . [3] the d egree

an d type of prejudice borne by the State r esulting from applicant ’ s delay .

. . . [and 4 whether the] delay may be excused.” Ex parte Smith , 444 S.W.3d at 667

. Prejudice in this context includes “anything that places the Stat e in a less favorable p osition, including prejudice to the State ’ s abil ity to retry a defendant.” Id. at 666

. The State is not requi red “ to make a

‘ particularized showing of prejudice

. ’ ” Ex parte Perez , 3 98 S.W.3d at 215

. The trial court “ may draw reas onab le inferences fro m the circ umstan tial evidence to determine whether excessive delay has likely compromised the reliability of a retrial. ” I d. at 217

. Trial cou rts may “ broadly consi der the diminished memories of trial participan ts and the diminis hed avai lability of the
S t a te ’ s evi dence, both of which may often be said t o occur beyon d five years after a c onviction is final. ” Id. a t 216

. A delay may be excused if the record shows that (1) “ an applicant ’ s delay was not unreasonable because it was due t o a justifiable excus e or excus able 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 compel ling reasons, such as new evidence that shows he is actually
in noce nt of the offense o r, in som e cases, that he is reasonably likely t o prevail on the merits .” Id. at 218 ; see E

x parte Smith , 444 S.W.3d at 667

. Laches is a question of fact, and as specified earlier, the trial court is the sole finder of fact in an a rti c le 11.072 habeas p r o ceeding. See
Ex parte Bowman , 4 47 S.W.3d at 88 8

.9 DISCUSSION
I n his sole issue on appeal, Allen cont ends that the trial court abused i ts discretion by denying his hab eas application “ be cause there was insufficient proof to establ ish that the doctrine o f laches barr ed the application. ” Allen argues that the trial court “ held no h earings and requested no affidavi ts on any of the issues necessary to appropriately find la ches ” and instead speculated “ that the witnesses would no longe r re member the facts r e levant to the case. ” Moreover, A llen conten ds th at whether the witnesses would have difficu lty remembe ring the events in question has no bearing on his request for an out

- of

- time appeal because faded memories would be a relevant cons ider ation only if he r e ceives a new trial. Further, Al len asserts that he should have an opport unity to explain the delay in seeking an out

- of

- time appeal and that the State shou ld have been required to provide evidence specifically showing how it was
pre judi ced by the delay. Allen also asserts that his tria l attorn ey ’ s f ailure to inform him of his appellate right s constituted ineff e ctive assistance of counsel and that he has shown that but for his attorney not informing him of h is rights, he would have a pp ealed his convictio n . For these

re asons , Allen argue s that this Co urt s hould reverse the tr ial court ’ s order and r emand the case to the trial court to all ow it to hold a hearing on the matter before making a subsequent ruling.

Regard ing Allen ’ s asse rt ion that the trial co u r t should have held a hearing b efore ruling o n his habeas a pplication and that this Court should remand the case and ord er a n evidentiary hearing regarding la ches, we note , as s et out above, that article 11.072 does not require a he ar ing before a trial co u r t may rule on a habeas application. See T ex . Code Crim.
Proc. art. 11.072 ; Ex parte Salazar , 510 S.W.3 d at 62 7

. Moreover, for the reasons that follow,10

we cannot conclude that the trial court abused its discretion by making its ru li ng without convening a hearing. S ee Ex parte Salazar , 510 S.W.3d a t 626

- 27

. 2

As discussed previously , the record before the tr ial court showed that Allen waited n early te n years to seek an out

- of

- time appeal. See Ex parte Smith , 444 S.W.3d at 670 ( ob se rving that “ [a] ten

- a n d

- a - half year de lay is extraordinary ” ); Ex pa rte Perez , 398 S. W.3d
at 216 n.12 (explaining “that delays of more than five years may generally be c onsidered unreasonable in the absence of any justification for the delay”)

.

Moreover , regarding the reasons f or the delay and whether the de lay may be

ex cused , Allen exp lained in his affidavit that his trial attorney did not di scuss the applicable appell ate deadlines or any potential ap pellate issues and that had he been informed of his

a pp ellate rights, he wou l d hav e timely filed a notice of appeal. Howe ver, trial court s are the factfin der s in habeas proceeding s under ar ticle 11.072 , and the trial court here det ermine d that

2 In his brief, Al len refer s to several cases from the Court of Crimin a l Appeals when asserting that a hearing should have been convened and that th is case should be remanded for a n evidentiary hearing. See Ex parte Bowman , 447 S. W.3 d 887 (Tex. Crim. App. 2014) ; Ex parte Perez , 398 S .W.3d 206 (Tex. Crim. App. 2013)

. Althoug h the Court stated in B ow man that

“ [w]e have indicated t hat the proper course of action ” when there is noth ing in the record pertaining to laches “ is to re mand to th e trial court for a h earing on the laches issue , ” the Court did not state that hearing s are mandatory in all cases a rising under ar ticle 11.072

. 44 7 S.W.3d at 888 . Similarly, although the C ourt in Perez reman ded the case , 3 98 S.W.3d at 219 , and alth oug h the trial court elect ed to hold a n evidentiary he aring on remand, see Ex parte Perez , 445 S

. W.3d 719, 724 (Tex. Cr im . App. 2014) , the Cour t did not r equire an evi dent iary hearing or otherwise indicat e that an evi dentiary hearing was warranted in the c irc um sta nces present he re, see Ex parte Perez , 398 S .W .3d at 219 ; see also Ex parte Davila , 530 S.W.2d 543, 545 (Tex. Cri m. App. 1975) (op. on reh ’ g) (explaining in habeas context that hearing was not required under article 11.07). Moreover, th e procedura l p os ture s from both ca ses are distinguishable from th e one here. See Ex parte Bowman , 447 S.W. 3d at 888 (remanding wher e laches was ra ised for first time on appeal); Ex parte Perez , 398 S.W.3d at 215, 219 (remand ing to allow S tate and applicant “ to produ ce ad ditional evidence ” “ [ i]n li ght of [the] revised a pproach to the doctrine of laches ” that Co urt of Crimi nal App eals h ad just a dopted ) ; see also Ex parte Smith , 444 S.W.3d 661 , 663 , 667 (Tex. C rim. App. 2014) (remanding case to allow applicant to addres s l ac hes af ter determining “ that a court may sua spo nt e cons ider and det ermine whe ther laches sh ould bar relief

” ).11

Allen ’ s claims in his affi davit were not credible

. See Ex parte F assi , 388 S. W.3d 881, 8 88 (Tex. App.

— Houston [14th Dist.] 2012, no pet.) (noting “ that the habeas court was free to disbelieve appellant ’ s self

- serving testi mony ” ) ; see also Kniatt v. State , 206 S.W.3d 657, 665 (Tex. Crim. App. 2006) ( explaining that “ [a ]n a pplicant ’ s delay in s eeking habeas corpus relief may prejudice th e credibility of his claim ” )

.

When deciding what , i f any, weight to gi ve All en ’ s affidavit, the trial court was aided by the record from the under lying criminal proceeding as well as th e court ’ s memory of th a t proceeding

. For example , during hi s intervi ew with the police, Allen initially told the police that nothing imp roper happened , that Smith initiated m ost of the contact, and that she started

a cting “ clingy , ” but he later admitted t o having an “ improper ” r e lationship with her

. M o reover, despite the extensive te xt history between Allen and Smith being admitted into evidence and documenting graphic sexual statements th at he made to her, Allen tes tified during the
pun ishment phase that s he was a liar

. Simil a r ly, Al len denied having physical contact wit h Smith , but Allen a dmitted during his interview that there had been contact whe n she backed into him at a cheerle ading competition

.

In additi on, when evaluating Allen ’ s statement t ha t he would have appeal ed hi s conviction in the hop es of receiving a new trial , the tri al court could have considered the fact that Allen was placed on community supervision rath er than sent to prison despite the sig nificant evidence supporting his guilt, i n cluding his own admis sions , his text messages with Smith discussin g sexual t opics and suggesting getting a hotel , and his viewing nude images of her

. Cf. Ex parte Torres , No. 03

- 14

- 00169

- CR, 2015 WL 2066232, at *6 n. 1 (T ex. App.

— Austin Apr. 29, 2 015, n o pet.) (mem. op., not d esigna t e d for publication) (observing that h a b eas courts12

evaluating claim that appli cant would have insiste d on trial should consider “ evidence concerning the likelihood of success at tr ial ” ).

Further, although the affidavit purport ed ly from Wyrick describ ed All e n ’ s trial attorney as being overwhelme d by his criminal defense c ases and as having a limited understa nding of c riminal procedure, the trial court c ould have considered that the affidavit was neither signed by Wyrick n or s worn to w hen decidi ng what, if any , w e i ght to give those
sta tements in the d ocument

. Cf. Evan s v. S ta te , 628 S.W.3d 358 , 365 (Tex. App.

— Fort Worth 2021, no pet.) ( noting that “unsworn ‘contention[s] ’

. . . could not serve in li eu of affidavit ” and
did not satisf

y affidavit requirement)

. Mor e o ver, the trial court could have consi dered the portion of the document relating that Allen ’ s trial counsel pu rportedly told Wyrick that Allen and his attorney were both happy with the outcome of the trial because Allen had b ee n plac ed on community s up erv i s ion a nd not sent to prison even thoug h the conviction was for online solicitation of a minor.

Similarly, the trial court could have consid ered the statement attributed to Wyrick and referen ced by Allen in his application e xp laining that Wyrick in forme d A l l en a few month s after trial that th e deadline for filing an appeal had run . A dditionally, the court could have

cons idered how despite being notified of the S t ate ’ s laches argument made in response to the writ applica tion , d espite having an oppor tunit y t o re spond or file additional evidence bef ore th e
t rial co urt ruled , and despite the S t ate explicitl y inviting Allen in its re sponse to “ file a subsequent affidavit which adequately justifi es the delay ” if there was an explan at ion , Allen provided no expl a na t i on for the nearly ten

- year de lay ot her t han having not been informed abo ut his appellate rights and did not set out any efforts that he made seeking to advance his request for an out

- of

- time appeal before filing the habeas a pplication. Cf. Ex pa rte R obe r ts ,13

494 S.W.3d 771 , 7 7 4, 776 (T ex. A pp.

— H ouston [14th Dist.] 2016, pet. ref ’ d) (co ncluding t hat laches bar r ed relief and n oting that trial counsel died after conviction and that applicant waited

near ly thirteen years before fi ling habeas applicati on)

.

Re g a r ding pr ejudice , the S t at e explained in its response that the delay impaired its ability to retry Allen sh ould he prevail in an out

- of

- ti me appeal

. Although Allen contends that this type of prejudice should not be consid ered here beca use he is current ly o n ly seek ing an appeal rat h er than a new trial, courts consider “ whether excessive delay has likely compromised the reliability of a retrial ” when de termining if a cla im is barred by la ches. See Ex parte Perez , 398 S.W.3d at 217 ; see a lso id. at 20 8 , 2 10 , 2 15 (noting applicant ’ s a rgument that prejudice
to State ’ s “ ability to re

- try applicant is irrelevant to laches inquiry ” where applicant sought to pursue out

- of

- ti me petition for discretionary review a nd then ex p a n ding “ the definition of prejudice

. . . t o permit consideration of anything that places the S t ate in a less favorable position ” ) . Moreover, given the significant de lay at issue in this case, the State ’ s burden to produce evidence establishing pre judice is significantly lesse n ed be c ause of “ th e c o m mon - sense understanding that the lo nge r a case has been delayed, the more likely it is that the reliability of a retrial has been compr omised. ” I d. at 218

. I n its response, the S t ate noted that at trial Sm ith had diff iculty remem ber ing details of t he of

f e nse and surrounding behavior given the delay between the actions and the trial and asserted that her m emory would have diminished further during the ten

- year delay. C f. Ex parte Perez , 398 S.W.3d at 2 17 (o bse rving that trial cour ts “ may draw reasonab le i n ferences

. . . to de termine whether exc essive delay has likely compromised the reliability of a retrial ” ). When assessing any prejudice to the State, the t rial court was free to consider its own recollecti ons and the record from t he underlying trial , an d t he record supports the trial court ’ s determination that14

the del ay prejud iced the S tate. For example, a lthough Smith rem embered many details, she admitted that she did not remem ber why Allen starte d commun i ca ting with he r by cell phon e , how long they co m m unic ated before a se xual topi c was dis cussed , when sex was discu ssed for the first time, how many sexually

- themed conversations they had, whether they discussed oral

se x, what she said in response to his su gge stion that they g et a hotel , how often the y d i s cussed

sex , what she said in certain text m essages, who se idea it was for her t o tak e pictures of herself naked , how many times she used his phone to take pictures o f her self, and how people found
out about th e improper communicat ions

. Additionally, Smi t h testified that the reason she could not remember certain details was because the incidents occurred “ a long time ” ago. Further, Allen fo cused on Smith ’ s inability to recall details as part of his defensiv e s trategy through his

c ross - examination of h er.

I n assessing the merits of Allen ’ s ineffecti veness c laim and his assertion that he was unaware of his appellate rights , the trial court could have consid ered how it discussed in front of Allen and the ju ry the possibility t ha t the jury ’ s d ecision could be a ppealed to this Court and potentially reversed. Moreover, when asserting his ineffectiveness claim below, Allen noted that he objected during the jury

- charge conference to the inclusion in the charge o f l anguage from the stat ute in effect a t the time sp e c ifying that it is not a defense that “ th e actor did not intend for the me eting to occur , ” ass e rting that the “ anti

- defensive ” language i s inconsistent with the p ortion of the statute specifying that the person mu s t have “ the i nt ent that the minor ” en g age i n sexual conduc t

. See Act of May 25, 2005, 79th Leg. , R. S., ch. 1273 , § 1 , sec. 33.021 (c) , (d) , 2005 Tex. Gen. Laws 4049, 4050 (amended 2007, 20 15, and 2021) (current version at T ex. Penal Code § 33.02 1 ). Allen urged that he would have ar gued on app eal t h at the in clusion of the language constituted jury

- charge error.15 Duri ng the charge con ference , Allen did object to the inclusion of the language set
out above. After listening to Allen ’ s argument , the trial court ended the hearing and instructed th e S t a te to consider whether it wanted to include that language in the charge given that the two provisions “ sound[ed] con tra dictory to ” one another . On the next day, the S t ate informed the trial court t hat it did not want to i nclude the disputed l anguage , an d that language was not included in the jury charge

. Cf. Williams v. State , 937 S .W.2d 479, 490 (Tex. Crim. App. 1996 ) ( explaining that jury is presumed to follow cou rt ’ s instructions as given)

. For these r e asons , the tria l court could have reasonably co n c luded that Allen would likely not prevail on the meri ts of his claims

. Havi ng examined the relevant consideratio ns, we conclude that the trial court did not abuse its discretion by de termining t hat Allen ’ s habeas claim s could b e resolved without

con ven i n g an evidentiary hearing and that his r equest f or an out

- of

- time appeal was b arred by laches

. See Ex parte B ecciu , 615 S.W.3d 482, 495 (T ex. App.

— Houston [1 st Dist.] 2020, no pet.) ( upholding tri al court ’ s decision that la ches barred relief where ap p lic a n t waited seven ye ars before filing writ applica tion, where State showed it had been prejudiced by delay, and where applicant presen ted no evidence of comp elling reason why laches should not apply) ; Ex parte Robe rts , 494 S.W.3d at 774, 776 , 777 ( affirm ing t rial court ’ s ruling tha t la ches barred relief

w here applicant “ waited almost thirteen years before bringin g his ha beas a ppl i cation ” and did
not “ provide an explanation or reason for this delay , ” w here State has been prej udiced by delay due to loss of evi d e nce, and where trial court could have concluded based on record that applicant would likely not prevail on merits of ine ffe ctive assistance claim)

.

T herefore , we overrule Allen ’ s issue on appe al. S ee Ex parte Smith , 444 S.W.3d
at 66 7

- 68 (noting tha t “ [ p ]rotracted habeas co rpus litigation defers co n victions ’ finality , ”16

undermines confidence in integrity of judicia l procedures, a nd impairs orderly ad ministration of justice , explaining tha t there must be point at which conviction becomes final and at

w hi c h deterrent effects of immediacy and certain ty of punishment out w eigh right to repeatedly appeal conviction)

.
CON CLUSION

Havin g overruled Allen ’ s issue on appeal, we affirm the trial court ’ s or der denying Allen ’ s appl ication for writ of habeas corpus

.

_________________________________________ _ Thomas J. Bake r , Justice Before Justic es Goodwin, Baker, and T riana Affirmed Filed: June 15, 2022
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