Ex Parte Julio Gialito Aruizu ( 2015 )

ACCEPTED
01-15-00250-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
7/9/2015 3:04:13 PM
CHRISTOPHER PRINE
CLERK
FILED IN
1st COURT OF APPEALS
No. 01-15-00250-CR HOUSTON, TEXAS
7/9/2015 3:04:13 PM
In the Court of Appeals for the CHRISTOPHER A. PRINE
First District of Texas Clerk
At Houston
♦
No. 1943590
In County Criminal Court at Law Number Seven
Of Harris County, Texas
♦
Ex parte
JULIO GIALITO ARUIZU
Appellant
♦
State’s Appellate Brief
♦
Devon Anderson Clinton A. Morgan
District Attorney Assistant District Attorney
Harris County, Texas Harris County, Texas
State Bar No. 24071454
Molly Wurzer morgan_clinton@dao.hctx.net
Assistant District Attorney
Harris County, Texas 1201 Franklin St., Suite 600
Houston, Texas 77006
Telephone: 713.755.5826
Oral Argument Not Requested
Statement Regarding Oral Argument
The appellant requested oral argument, though he gave no
particular reason why. The State believes that the briefs in this case
adequately apprise this Court of the issues and the law, and any
marginal benefit from oral argument does not justify the considerable
amount of time that preparation for oral argument requires of the
parties and the Court. The State does not request oral argument.
i
Identification of the Parties
Counsel for the State:
Devon Anderson
 District Attorney of Harris County
Molly Wurzer
— Assistant District Attorney on original application
Clinton A. Morgan
 Assistant District Attorney on appeal
Appellant:
Julio Gialito Aruizu
Counsel for the Appellant:
Lance Nguyen
— Counsel on original application and on appeal
Trial Judge:
Pam Derbyshire
 Presiding judge
ii
Table of Contents
Statement Regarding Oral Argument ................................................. i
Identification of the Parties .............................................................. ii
Table of Contents ................................................................................ iii
Index of Authorities ............................................................................ iv
Statement of the Case .......................................................................... 1
Statement of Facts ................................................................................ 1
Summary of the Argument .................................................................. 4
Reply to Point One
The appellant did not conclusively prove his innocence. His affidavits
failed to rebut the State’s evidence. Moreover, in light of the police
officer’s report the trial court had a basis for concluding that the
appellant’s evidence was not credible. ............................................................... 6
I. Standard of Review: The trial court’s findings of fact are
entitled to near-total deference, and its ultimate decision is
reviewed only for an abuse of discretion. ..................................................... 6
II. Argument
A. The appellant’s Herrera claim fails because he did not
produce evidence conclusively showing his innocence. ..................... 8
B. This Court should reject the appellant’s “Schlup-type claim of
innocence” because Schlup is irrelevant to this case. ....................... 11
Reply to Point Two
The appellant’s ineffective-assistance claim is barred by laches
because he waited more than twelve years to raise it and he has
offered no reason to justify the delay................................................................ 14
Conclusion .......................................................................................... 17
Certificate of Compliance and Service ........................................... 18
iii
Index of Authorities
Cases
Ex parte Ali
368 S.W.3d 827 (Tex. App.—
Austin 2012, pet. ref’d) .............................................................................................. 7
Ex parte Bowman
447 S.W.3d 887 (Tex. Crim. App. 2014) ........................................................... 15
Ex parte Carrio
992 S.W.2d 486 (Tex. Crim. App. 1999) ........................................................... 14
Ex parte Garcia
353 S.W.3d 785 (Tex. Crim. App. 2011) .............................................................. 6
Ex parte Navarilo
433 S.W.3d 588 (Tex. Crim. App. 2014) ...................................................... 9, 10
Ex parte Perez
398 S.W.3d 206 (Tex. Crim. App. 2013) .................................................... 14, 15
Ex parte Tuley
109 S.W.3d 388 (Tex. Crim. App. 2002) .............................................................. 8
Ex Parte Villegas
415 S.W.3d 885 (Tex. Crim. App. 2013) ........................................................... 13
Ex parte Zantos-Cuebas
429 S.W.3d 83 (Tex. App.—
Houston [1st Dist.] 2014, no pet.) ......................................................................... 7
Herrera v. Collins
506 U.S. 390 (1993) .................................................................................................... 8
Kniatt v. State
206 S.W.3d 657 (Tex. Crim. App. 2006) .............................................................. 7
Schlup v. Delo
513 U.S. 298 (1995) .......................................................................................... 11, 12
Shanklin v. State
190 S.W.3d 154 (Tex. App.—
Houston [1st Dist.] 2005), pet. dism’d, improvidently granted
211 S.W.3d 315 (Tex. Crim. App. 2007) .............................................................. 7
iv
Statutes
TEX. CODE CRIM. PROC. art. 11.072 ................................................................................. 6
v
Statement of the Case
In July 2002, the appellant pleaded guilty to the misdemeanor
offense of assaulting a family member. (CR 12). In accord with an
apparent plea bargain, the trial court assessed punishment at fifteen
days’ confinement in the county jail. (CR 12).
In January 2014, the appellant filed an application for a writ of
habeas corpus challenging his 2002 conviction. (CR 5-10). In February,
2014, the appellant filed an amended petition. (CR 19-26). The trial
court denied relief. (CR 104). The appellant filed a notice of appeal, 1 and
the habeas court certified his right of appeal. (CR 108-09, 110).
Statement of Facts
The record contains two sources of information regarding the
underlying events of this case: 1) A police report from the date of the
offense; (CR 87-88) and 2) three affidavits that the appellant submitted
with his habeas petition, but which the trial court found to be not
credible. (CR 29-30, 35-42; Supp. CR 7).
1The notice of appeal was filed on March 9, which would be 34 days after the date
on which the trial court entered its order denying relief. However, the notice of
appeal also seems to have been mailed, which might render it timely filed. The State
received a copy of the notice of appeal via fax on March 5, the thirtieth day after
relief was denied.
1
The police report indicates that the officer was dispatched to the
appellant’s home “in response to a possible family disturbance.” (CR 87).
The complainant was Juana Lerma, who at that time had been the
appellant’s wife for twelve years. (CR 87). Juana told the officer that she
had gotten a phone call from an unknown woman, and the woman had
claimed to be the appellant’s “girlfriend.” (CR 87). Juana said that she
and the appellant had a “heated verbal argument,” after which Juana
went to a friend’s residence. (CR 87).
[Juana] stated that the [appellant] later came to her friend’s
residence and forced her to leave with her [sic.]. She stated
that she attempted to get out of their vehicle and the
[appellant] struck her several times, causing her physical
pain. [Juana] stated that once they got back to their
residence they continued to argue. [Juana] stated that the
[appellant] grabbed her around the neck and throat and
choked her causing her physical pain. I observed that
[Juana] had red marks around her neck and upper chest
area. [Juana] stated that the [appellant] then grabbed her by
the hair and pulled it forcefully causing her pain.
[Juana] stated that the [appellant] has assaulted her
numerous times over the past twelve years. She stated that
she has never called before because she depended on the
[appellant] financially but that now she is just tired of the
assault and abuse.
(CR 87-88).
The appellant’s affidavits tell a different story. According to an
affidavit from Juana, on May 4, 2002 she received a phone call from a
2
woman claiming she and the appellant “had been seeing each other
romantically.” (CR 35). Juana said that she and the appellant had an
argument about this, and during this argument, she called 911 and said
that the appellant had “pushed” her, even though he had not. (CR 35-36).
When police arrived, Juana told them that the appellant “pushed” her.
(CR 36). The police arrested the appellant, and between that time and
February 2014 Juana never spoke about the matter to anyone — not to
the appellant’s trial counsel, not to any other police officer, not to
anyone from the prosecutor’s office, and not to the appellant, who
moved back in with her after he bailed out of jail and lived with her
during the pendency of the charges. (CR 36-37, 40).
According to the appellant’s affidavit, on May 4, 2002, he had an
argument with Juana regarding his suspected infidelity, and during that
argument he “never threatened, pushed, touched, or hit Juana.” (CR 39).
Juana then went into their home and sometime later police arrived. (CR
39-40). The appellant told the police that he did not touch Juana, but the
police arrested him and took him to the station. (CR 40).
The appellant bonded out of jail and hired Manuel Barrera as his
attorney. (CR 40). The appellant told Barrera that he did not harm Juana.
(CR 40). Barrera never spoke to Juana or the couple’s son, Edgar. (CR
3
40). Instead, Barrera advised that his case had been assigned to “a good
judge,” and if he wanted to go to trial he would have to attend many
more court dates than if he pleaded guilty. (CR 40). The appellant now
believes that if Barrera had advised him of the possibility of going to a
jury trial he would have done so because of “the lack of any physical or
other evidence supporting Juana’s claim that [he] pushed her.” (CR 40).
The appellant now claims that he pleaded guilty only “[b]ecause [he] did
not have any knowledge that at a jury trial [he] would have had a chance
at winning the case ….” (CR 41).
The third affidavit was from the appellant and Juana’s son, Edgar
Lerma. (CR 29-30). According to this affidavit, on May 4, 2002 Edgar
(then fourteen years-old) was standing inside the door and heard his
parents having an argument outside. (CR 35). Edgar did not hear any
“sounds of violence or physical fighting” during this argument; when
Juana came inside he “did not see any signs of physical pain, discomfort,
or injury ….” (CR 35).
Summary of the Argument
The appellant presents on appeal the same three claims that he
presented in the trial court, though the State somewhat takes issue with
4
how they have been presented. The appellant purports to raise two
types of “actual innocence” claims and an ineffective-assistance claim.
However, one of the “actual innocence claims” is a Schlup claim which is
not an “actual innocence” claim at all; Schlup claims provide a method
— if the court believes the defendant is probably innocent — for federal
courts to address claims of trial error that would otherwise be barred by
federal procedural rules. Because Schlup does not provide a standalone
basis for relief, it is not a standalone claim. The State will address the
appellant’s claims in what it believes to be the most logical order.
In his first point of error, the appellant claims that the trial court
erred in rejecting his actual innocence claim. However, the trial court
found the appellant’s evidence not credible. Because the trial court’s
credibility finding is adequately supported by the record, the trial court
was correct to reject the appellant’s actual innocence claim.
In his second point of error, the appellant claims that the trial
court erred in rejecting his ineffective-assistance claim. However, the
appellant waited more than twelve years to make this claim, by which
time trial counsel had no memory of the case and could not respond to
the appellant’s claims. The appellant offered no explanation for why he
did not assert this claim earlier. Accordingly, this claim is barred by
5
laches, and the trial court was correct to reject it as such. To whatever
degree Schlup could provide a basis for addressing this claim on its
merits, the trial court was correct in not doing so because the appellant
produced no credible evidence of his innocence.
Reply to Point One
The appellant did not conclusively prove his innocence. His
affidavits failed to rebut the State’s evidence. Moreover, in light of
the police officer’s report the trial court had a basis for concluding
that the appellant’s evidence was not credible.
I. Standard of Review: The trial court’s findings of fact are
entitled to near-total deference, and its ultimate decision
is reviewed only for an abuse of discretion.
Code of Criminal Procedure Article 11.072 “establishes the
procedures for an application for a writ of habeas corpus in a felony or
misdemeanor in which the applicant seeks relief from an order or a
judgment of conviction ordering community supervision.” TEX. CODE
CRIM. PROC. art. 11.072 § 1. An Article 11.072 writ is litigated through the
trial court, and the trial court judge is the sole finder of fact. Ex parte
Garcia, 353 S.W.3d 785, 788 (Tex. Crim. App. 2011). Accordingly, an
appellate court addressing an Article 11.072 writ gives “almost total
deference to a trial court’s determination of the historical facts that the
6
record supports ….” Id. at 787 (quoting Guzman v. State, 955 S.W.2d 85,
89 (Tex. Crim. App. 1997)).
This level of deference applies even if the trial court makes its
factual determinations based on affidavits. Ex parte Ali, 368 S.W.3d 827,
841 (Tex. App.—Austin 2012, pet. ref’d). The trial court is entitled to
make credibility determinations on affidavits, and “is not required to
believe factual statements contained within an affidavit, even when they
are uncontradicted by other affidavits.” Shanklin v. State, 190 S.W.3d 154,
167 (Tex. App.—Houston [1st Dist.] 2005), pet. dism’d, improvidently
granted, 211 S.W.3d 315 (Tex. Crim. App. 2007).
An appellate court reviewing a trial court's ruling on an Article
11.072 writ must review the record evidence in the light most favorable
to the trial court's ruling and must uphold that ruling absent an abuse of
discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006);
Ex parte Zantos-Cuebas, 429 S.W.3d 83, 87 (Tex. App.—Houston [1st
Dist.] 2014, no pet.).
7
II. Argument
A. The appellant’s Herrera claim fails because he did
not produce evidence conclusively showing his
innocence.
A habeas applicant’s assertion that he is entitled to have his
conviction reversed because he is actually innocent of the offense for
which he was convicted is called an Herrera claim, named after Herrera
v. Collins, 506 U.S. 390 (1993). Granting relief on such a claim is
appropriate only if the applicant shows by “clear and convincing
evidence that, despite the evidence of guilt that supports the conviction,
no reasonable juror could have found the applicant guilty in light of the
new evidence.” Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App.
2006) (quoting Ex parte Tuley, 109 S.W.3d 388, 392 (Tex. Crim. App.
2002).
This showing must overcome the presumption that the conviction
is valid and it must unquestionably establish the applicant's innocence.
Ibid. Because of the respect that the legal system owes to legally-
obtained verdicts, making such a showing is “a Herculean task.” Ibid. The
Court of Criminal Appeals has given as examples of the sort of evidence
that is capable of supporting such a finding: “trustworthy witness
recantations … exculpatory scientific evidence, trustworthy eyewitness
8
accounts, and critical physical evidence.” Ex parte Franklin, 72 S.W.3d
671, 678 n.7(Tex. Crim. App. 2002). Though this list is non-exclusive, the
focus on reliability and credibility emphasizes that habeas courts are
not to lightly revisit jury verdicts.
In this case, the appellant produced three affidavits: one from him,
one from the complainant, and one from their son. The trial court found
those affidavits not credible, and this Court is obliged to defer to that
finding.
Even if the trial court found the affidavits credible, they would not
support a finding of actual innocence. The affidavit from the appellant is
of no value here; a defendant’s statement that he is innocent is not the
sort of evidence that will support a Herrera claim. The affidavit from the
son provides no affirmative evidence of innocence; the closest it gets is
to say that the son did not witness the appellant beat the complainant.
The complainant’s recantation is the appellant’s best evidence, but
it is still insufficient to support a finding of actual innocence. In Ex parte
Navarilo, the Court of Criminal Appeals addressed an Herrera claim in
which the complaining witness recanted her accusations. Ex parte
Navarilo, 433 S.W.3d 588 (Tex. Crim. App. 2014). The evidence of guilt at
trial had consisted of the complainant’s testimony as well as testimony
9
from others regarding injuries the complainant had suffered from
Navarilo’s sexual assault. Id. at 560-63. At the habeas hearing, thirteen
years after the trial, the complaining witness said that Navarilo had not
committed the offense, and she had only testified that he did because
her grandmother had put her up to it. Id. at 564-66. The trial court found
that her recantation was credible — indeed, more credible than her trial
testimony had been — and recommended that relief be granted. Id. at
566.
The Court of Criminal Appeals rejected this, however, because the
recantation did not include as much detail as had the complainant’s trial
testimony, and because the recantation did not explain away the
physical evidence presented at trial. Id. at 568-71. Accordingly, the court
concluded that a reasonable juror, when confronted with the trial
evidence and the recantation evidence, could still have convicted
Navarilo, thus he had not proven he was actually innocent.
This case is quite similar. The complainant’s affidavit, on its own,
seems to show that the appellant was innocent, but it provides no
explanation for the injuries that the police officer observed when he
responded to the call. Compare CR 35-37 to CR 87-88. Moreover, the
recanting affidavit is less detailed than was the statement that the
10
complainant made to the police officer: The statement to the officer
described the complainant going to a friend’s house and the appellant
forcing her to go home, it specified that the appellant had been abusing
her for years, and it specified that the appellant assaulted her in several
ways (striking, choking, and pulling hair); the recanting affidavit merely
said that on one particular date at one particular place the appellant did
not assault her by pushing her. Faced with the evidence that the State
had at the time the appellant pled guilty, a rational juror could have
discounted the complainant’s later recantation and still concluded that
the appellant had assaulted her. Accordingly, even if the appellant’s
affidavits were credible they would not support his Herrera claim.
B. This Court should reject the appellant’s “Schlup-type
claim of innocence” because Schlup is irrelevant to
this case.
In his first point, which relates to his claim of “actual innocence,”
the appellant presents what he calls his “Schlup-type claim of
innocence.” (Appellant’s Brief at 7-8). In Schlup v. Delo, the Supreme
Court dealt with a habeas applicant whose claims were barred by
federal rules of procedure because he had failed to raise the claim in a
previous writ application. Schlup v. Delo, 513 U.S. 298, 301 (1995).
11
However, Schlup accompanied his allegations of trial error with
evidence tending to show that he was actually innocent of the charged
offense. Id. at 306-11. The Supreme Court held that, because habeas is
an equitable remedy, if a petitioner whose claims of trial error are
otherwise barred by the federal prohibition on subsequent writ
applications can produce evidence showing that “more likely than not”
he is actually innocent, the habeas court should waive application of that
prohibition and address his allegations of trial error on the merits. Id. at
326-27.
Although Texas courts have developed the unfortunate habit of
referring to “Schlup actual innocence claims,” Schlup itself did not
involve a claim that the applicant should be released based on his
innocence. The claim in Schlup involved nothing more than waiving a
federal procedural rule for the narrow class of applicants who can
provide substantial proof of their innocence; to gain relief on a Schlup
claim a petitioner must still show that there was constitutional error at
his trial. Schlup described itself as opening a procedural “gateway” for
certain petitioners to present their claims of constitutional error at trial.
Id. at 316.
12
Moreover, Schlup was a federal case that created an equitable
exception to federal procedural rules; its application to a state habeas
case, which is controlled by state statutory law, is not obvious. See Ex
Parte Villegas, 415 S.W.3d 885, 887 (Tex. Crim. App. 2013) (Price, J.,
concurring). Even if this case involved a procedural bar on the appellant
raising his claim — which it does not — Section 9 of Article 11.072
governs subsequent writs in cases like the appellant’s, and Schlup
(which was not decided on constitutional grounds) would be of no
effect.
There is not now and there never has been any procedural bar to
the appellant raising his “actual innocence” or ineffective-assistance
claims. Schlup has no relevance to this case. See Villegas, 415 S.W.3d at
886-87 (per curiam) (where petitioner raises claim on initial petition,
consideration of “Schlup innocence claim” is irrelevant because there is
no procedural bar to overcome).
13
Reply to Point Two
The appellant’s ineffective-assistance claim is barred by laches
because he waited more than twelve years to raise it and he has
offered no reason to justify the delay.
In his habeas application, the appellant alleged that his trial
counsel had rendered ineffective assistance, and that his guilty plea was
involuntary because of this ineffective assistance. (CR 19-24). The trial
court ordered trial counsel to file an affidavit answering numerous
questions, but in his affidavit trial counsel replied that he had no
recollection of this case whatsoever and he had lost his files from 2002.
(CR 82-86). The trial court found that the appellant’s “unreasonable
delay of almost twelve years in pursuing his habeas claim … prejudiced
[the State] in its ability to respond,” thus the appellant’s claim was
barred by the doctrine of laches. (CR 6).
Laches is an equitable doctrine that bars a party’s claim if that
party’s unreasonable delay in raising the claim has resulted in prejudice
to the opposing party. Ex parte Perez, 398 S.W.3d 206, 210 (Tex. Crim.
App. 2013) (citing Ex parte Carrio, 992 S.W.2d 486, 487-88 (Tex. Crim.
App. 1999)). The Court of Criminal Appeals has long held that laches can
apply to post-conviction writs of habeas corpus, and in a recent case
14
noted that laches applies to Article 11.072 writs. See Ex parte Bowman,
447 S.W.3d 887, 888 (Tex. Crim. App. 2014).
In this case, the appellant waited twelve years to file his writ
petition. See Perez, 398 S.W.3d at 216 (noting general guideline that the
State’s ability to retry a defendant is diminished after five years).
Neither in the trial court nor on appeal has he made any effort to justify
this delay. All of the information he presented in his habeas petition has
been available to him since his guilty plea; he lived with the complainant
and his other supposedly exculpatory witness during the pendency of
his charges, so whether or not his attorney spoke with them should have
been readily ascertainable. (See CR 40 (appellant’s affidavit criticizing
defense counsel for not speaking with complainant and witness who
lived in same home as appellant)).
Because of the appellant’s delay, the State’s ability to respond to
his claim has been prejudiced: Trial counsel’s time-related memory and
document loss make it impossible to obtain any credible evidence as to
his actions and the reasons for them. The trial court’s conclusions that
the appellant’s claim is barred by laches is supported by the record, and
15
accordingly this Court should reject the appellant’s second point of
error. 2
2 It might be tempting to ask whether Schlup would provide a basis for addressing
the appellant’s claim despite laches. The State urges this Court to resist that
temptation. First, the interaction between Schlup and laches is a novel matter that
the appellant has not briefed and on which the State can find no authority; neither
this Court nor the State should make the appellant’s argument for him. Second,
Schlup works to circumvent federal procedural rules, but laches is an equitable
doctrine that is substantive in nature. See Ex parte Smith, 444 S.W.3d 661, 665 (Tex.
Crim. App. 2014) (explaining substantive reasons for applying laches). Third, even if
Schlup could apply to circumvent laches, the trial court found the evidence of the
appellant’s innocence to be not credible and this Court must defer to that
determination.
16
Conclusion
The State respectfully submits that all things are regular and the
judgment of the trial court should be affirmed.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ C.A. Morgan
CLINTON A. MORGAN
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
713.755.5826
Texas Bar No. 24071454
17
Certificate of Compliance and Service
I certify that, according to Microsoft Word’s word counting
function, the portion of this brief for which Rule of Appellate Procedure
9.4(i)(1) requires a word count contains 3,154 words.
I also certify that I have requested that efile.txcourts.gov
electronically serve a copy of this brief to:
Lance Nguyen
lancehac2@gmail.com
/s/ C.A. Morgan
CLINTON A. MORGAN
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002-1923
(713) 755-5826
Texas Bar No. 24071454
Date: July 9, 2015
18