Public lewdness

Case Number: 03-16-00102-CR

Judge: Jeff Rose

Court: TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

Plaintiff's Attorney:

The Honorable Stacey M. Soule
Ms. Carly Dessauer
Mr. Ryan Palmquist
The Honorable Jana Duty

Defendant's Attorney:

Kristin Etter

Description: Pastenes’s application seeking habeas relief came more than 17 years after his
conviction. Despite completing two years of community supervision, Pastenes now contends that
he is suffering the consequences of his plea of guilty and that his liberty is restrained because he is
subject to removal from the United States.
Pastenes’s application states that he is a citizen of Mexico, that he speaks only
Spanish, and that he was arrested in Williamson County on a misdemeanor charge of public
lewdness. He contends that his retained counsel, who executed a waiver of arraignment and
magistrate’s warning for Pastenes, was not present when Pastenes pleaded guilty to the offense. The
record reflects that a “Waiver of Arraignment and Magistrate’s Warning” was filed July 7, 1998,1
and that Pastenes pleaded guilty the next day, July 8, 1998. The record further reflects that Pastenes
at that time signed “Judicial Admonishments” including the statement, “I am voluntarily and
knowingly waiving my right to have an attorney.”
Pastenes’s habeas application included an affidavit from attorney Russ Sablatura,
stating that he made no court appearance for Pastenes and that he has no independent recollection
of representing Pastenes beyond executing the waiver of magistration that expedited Pastenes’s jail
release. Sablatura explains that under “the procedures regarding jail releases at that time, a person
could hire an attorney to waive appearance before a magistrate and thus bond out of jail more quickly
than waiting for a formal magistration to occur.” Sablatura states that he does not have a physical
or electronic file to refresh his memory or offer any additional information.
Pastenes’s habeas application also included an affidavit from immigration attorney
Maria Cecilia Partida, which states that in 1994 Pastenes’s mother petitioned for him to come to the
United States “but because of numerical limitations a green card did not become available to him
The record does not reflect the date that Pastenes signed this waiver, only the filing date.1 2
until September 2015.” Partida states that after Pastenes became eligible for legal residency, it was
determined that his public-lewdness conviction “would create legal obstacles that may prevent him
from being granted legal residency.”
At the hearing on Pastenes’s habeas application, the trial court admitted into
evidence a notice from the Williamson County Attorney’s Office stating that because of its 5-year
document-retention policy, the Office no longer had any record on Pastenes. The trial court also
admitted into evidence a probation termination affidavit from the Williamson County Adult
Probation Department, stating that Pastenes’s probation has terminated, that the Department has no
documents regarding Pastenes’s supervision because his probation term preceded the installation of
their current casefile software system, and that the Department no longer has the “hard file” per its
record retention procedure.2
The trial court denied Pastenes’s habeas application and issued findings of fact and
conclusions of law holding that Pastenes’s application for writ of habeas corpus was “barred by the
equitable doctrine of laches.”
DISCUSSION
Standard of review for habeas applications
Pastenes contends on appeal that he is entitled to habeas relief because he was
deprived of his right to counsel when he entered his plea of guilty in 1998 and that the doctrine of
The court also admitted what appears to be an incomplete incident report for Pastenes’s2 public-lewdness offense that is missing the victim’s statement at the scene. 3
laches does not preclude his application for habeas relief. We address the latter issue first because
it is dispositive. See Tex. R. App. P. 47.1.
We review a trial court’s ruling on a habeas claim under an abuse-of-discretion
standard, considering the record in the light most favorable to the trial court’s ruling. Kniatt v. State,
206 S.W.3d 657, 664 (Tex. Crim. App. 2006). The applicant bears the burden of establishing
by a preponderance of the evidence that the facts entitle him to relief. Ex parte Thomas,
906 S.W.2d 22, 24 (Tex. Crim. App. 1995). We afford almost total deference to the habeas court’s
determinations of historical fact that are supported by the record. Ex parte Garcia, 353 S.W.3d 785,
788 (Tex. Crim. App. 2011). This deferential review applies even when the findings are based on
affidavits rather than live testimony. Manzi v. State, 88 S.W.3d 240, 244 (Tex. Crim. App. 2002).
Where resolution of the ultimate question turns on the application of legal standards, we review
those determinations de novo. 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); see also
Ex parte Amanze, No. 05-16-00579-CR, 2016 Tex. App. LEXIS 12701, at *12-13 (Tex.
App.—Dallas Nov. 30, 2016, pet. ref’d) (mem. op., not designated for publication).
A person convicted of a felony or misdemeanor may seek habeas relief from an order
or a judgment of conviction ordering community supervision. Tex. Code Crim. Proc. art. 11.072,
§ 1. When the application is filed, the applicant must be, or have been, on community supervision,
and the application must challenge the legal validity of: (1) the conviction for which or order in
which community supervision was imposed; or (2) the conditions of community supervision.
Id. § 2(b); see Ex parte Ali, 368 S.W.3d 827, 830 (Tex. App.—Austin 2012, pet. ref’d) (considering
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habeas application, even after applicant completed his community supervision sentence, based on
collateral legal consequences of applicant’s inability to obtain citizenship or permanent resident alien
status and risk of removal proceedings).
Laches applies to habeas applications
Habeas is governed by the elements of equity and fairness, and those elements require
a consideration of an applicant’s unreasonable delay. Ex parte Bowman, 447 S.W.3d 887, 888 (Tex.
Crim. App. 2014). The common-law doctrine of laches is defined as
neglect to assert 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.
Ex parte Perez v. State, 398 S.W.3d 206, 210 (Tex. Crim. App. 2013) (internal citations omitted).
Courts apply laches as a bar to relief when a habeas applicant’s unreasonable delay has prejudiced
the State, thereby rendering consideration of his claim inequitable. Id. at 219. The Court of
Criminal Appeals has stated that when determining whether laches will bar a habeas application,
courts should “keep, at the fore, the State’s and society’s interest in the finality of convictions, and
consider the trial participants’ faded memories and the diminished availability of evidence.”
Ex parte Smith, 444 S.W.3d 661, 666 (Tex. Crim. App. 2014). Laches is determined using a “sliding
scale,” wherein “the extent of the prejudice the State must show bears an inverse relationship 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 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 compromised. Id. at 218. Trial
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courts “may draw reasonable inferences from the circumstantial evidence to determine whether
excessive delay has likely compromised the reliability of a retrial.” Id. at 217. Delays of “more than
five years may generally be considered unreasonable in the absence of any justification for the
delay.” Id. at 216 n.12.
Because delay alone is insufficient to establish the bar of laches, courts should
consider factors including: (1) the length of applicant’s delay in requesting equitable relief; (2) the
reasons for the delay; (3) the degree and type of prejudice borne by the State resulting from
applicant’s delay; and (4) whether the delay may be excused. Ex parte Bowman, 447 S.W.3d at 888;
see also Ex parte Reyna, 435 S.W.3d 276, 280 (Tex. App.—Waco 2014, no pet.) (affirming order
denying habeas relief based on 20-year delay in filing habeas application and prejudice to State from
destruction of arrest records, destruction of breath-test records, and death of trial court judge). Delay
may be excused when the record shows that: (1) an applicant’s delay was not unreasonable because
it was due to 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 that shows he is actually innocent of the offense.
Ex parte Smith, 444 S.W.3d at 667. Laches is a question of fact and, in article 11.072 cases such as
this one, the trial judge is the sole finder of fact. See Ex parte Bowman, 447 S.W.3d at 888.
Pastenes’s habeas application is barred by laches
The record here supports the trial court’s determination that Pastenes’s application
is barred by laches. The court’s findings addressed the length of the delay in requesting equitable
relief, Pastenes’s stated reason for the delay, the degree and type of prejudice to the State resulting
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from Pastenes’s delay, and the court’s rejection of Pastenes’s excuse for the delay. Specifically, the
court found that Pastenes waited over 17 years to file his application and that time has prejudiced
the State—Pastenes’s lawyer does not have a file for Pastenes’s case or even much of a recollection
of having represented Pastenes; the County Attorney’s case file has been destroyed; the related
probation file has been destroyed; and the court staff has changed. See Perez, 398 S.W.3d at 217
(“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.”).
Pastenes’s only stated reason for the delay was that he did not suffer harm and was
not “restrained in his liberty” until September 2015, when he figured out that his conviction could
bar him from green-card eligibility. The trial court was not persuaded by Pastenes’s excuse,
concluding that he first suffered harm from his conviction when he was required to comply with the
conditions of his probation, not almost two decades later. Cf. Ex parte Tavakkoli,
No. 09-14-00358-CR, 2015 Tex. App. LEXIS 2032, at *10-11 (Tex. App.—Beaumont Mar. 4, 2015,
pet. ref’d) (mem. op., not designated for publication) (rejecting habeas applicant’s challenge to
laches determination in which he claimed that his right to relief was not ripe until he was placed
under deportation proceedings). The trial court also concluded that Pastenes could have consulted
with an immigration attorney and discovered the immigration consequences of his conviction any
time during the intervening 17 years and that the consequences of Pastenes’s conviction “did not
come to exist in September of 2015 when Applicant first consulted an attorney—they already
existed after Applicant’s conviction for public lewdness.” Finally, the court concluded that
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Pastenes’s 17-year delay in filing his habeas application was unreasonable and that the unreasonable
delay resulted in prejudice to the State.
Having reviewed this record in the light most favorable to the trial court’s ruling and
with proper deference to the trial court’s findings, we conclude that Pastenes has not met his burden
of showing that the facts entitle him to relief and has not shown that the trial court abused its
discretion by denying his application for writ of habeas corpus. See Kniatt, 206 S.W.3d at 664;
Ex parte Thomas, 906 S.W.2d at 24; see also Ex parte Reyna, 435 S.W.3d at 280. Based on our
resolution of this issue, we need not address Pastenes’s first issue.

Outcome: