Ex Parte George Vasquez ( 2009 )

Affirmed and Memorandum Opinion filed April 2, 2009

Affirmed and Memorandum Opinion filed April 2, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-01066-CR

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EX PARTE GEORGE VASQUEZ

On Appeal from the County Criminal Court at Law No. 7

Harris County, Texas

Trial Court Cause No. 1557578

M E M O R A N D U M   O P I N I O N

This is an appeal from the denial of an application for habeas corpus relief from a misdemeanor conviction.  See Ex parte Jordan, 659 S.W.2d 827, 828 (Tex. Crim. App. 1983) (holding that appeals from the denial of relief sought in misdemeanor post-conviction writs of habeas corpus are properly directed to the intermediate courts of appeals).  On March 2, 1978, appellant entered a guilty plea to driving while intoxicated, and he was sentenced to three days in jail, with credit for two days served, and assessed a $200 fine.  No appeal was taken.  Thirty years later, appellant challenges his conviction, asserting he was deprived of a jury trial, was not informed of his right to a jury trial before he entered his plea, did not waive his right to a trial by a jury, and the judgment is fatally defective.^[1]  We affirm.

For a court to have jurisdiction over a habeas application in a misdemeanor case under section 11.09 of the Code of Criminal Procedure,^[2] an applicant must be confined or restrained by either a charge or a conviction.  See Ex parte Schmidt, 109 S.W.3d 480, 483 (Tex. Crim. App. 2003).  Appellant certainly is no longer confined in jail by this conviction. However, the jurisdiction of the county court to issue the writ of habeas corpus is not limited to cases in which the applicant is confined.  Id. at 481.  Collateral consequences related to a conviction, such as the use of the conviction to enhance punishment in other cases, may also constitute confinement.  Ex parte Crosley, 548 S.W.2d 409, 410 (Tex. Crim. App. 1977); see State v. Collazo, 264 S.W.3d 121, 126 (Tex. App.CHouston [1st Dist.] 2007, pet. ref=d) (noting that Athe fact that [an applicant] is not physically confined does not preclude his application or deprive the trial court of jurisdiction@).  For example, in Ex parte Davis, the First Court held that an applicant denied entry into the military as a result of his prior misdemeanor conviction was sufficiently confined to authorize his application for writ of habeas corpus.  748 S.W.2d 555, 557 (Tex. App.CHouston [1st Dist.] 1988, pet. ref=d).

To prevail on a writ of habeas corpus, the proponent must prove his allegations by a preponderance of the evidence.  Ex parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim. App. 1995) (en banc).  We review a trial court=s ruling on an application for a writ of habeas corpus under an abuse of discretion standard.  Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006).

The trial court filed written findings of fact and conclusions of law.  In conducting our review, we accord great deference to the trial court=s findings and conclusions and must be particularly mindful that the trial court is the exclusive judge of the credibility of the witnesses.  Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006).  Such deference must be given even when, as in this case, all of the evidence is submitted by affidavits.  See Ex parte Wheeler, 203 S.W.3d 317, 325‑26 (Tex. Crim. App. 2006).

In appellant=s application for writ of habeas corpus, he raised two grounds for relief: (1) there is no valid jury waiver; and (2) the judgment was not signed by the trial court.

The court found that appellant=s habeas application is barred under the doctrine of laches. The doctrine of laches operates to bar a party=s claim after he has neglected to assert that claim for an unreasonable and unexplained length of time under circumstances permitting diligence.  Ex parte Carrio, 992 S.W.2d 486, 487 n.2, 488 (Tex. Crim. App. 1999).  The doctrine of laches is based upon the maxim that equity aids the vigilant and not those who sleep on their rights.  In re Steptoe, 132 S.W.3d 434, 439-40 (Tex. Crim. App. 2004) (Price, J., concurring).  The Court of Criminal Appeals has recognized that the doctrine of laches is a theory that may, and should be, employed in the determination of whether to grant habeas corpus relief.  Corrio, 992 S.W.2d at 488.  In order to prevail on a laches claim, respondent must make a particularized showing of prejudice.  Id. (citing the federal rule with approval).  The length of delay alone will not constitute either unreasonableness of delay or prejudice.  Id.

Appellant asserts that the record is silent as to a waiver of the right to a jury trial. Waiver of a jury cannot be presumed from a silent record on direct appeal.^[3] Samudio v. State, 648 S.W.2d 312, 314 (Tex. Crim. App. 1983).  This record is not silent.  The State provided affidavits from the trial judge and appellant=s counsel in the 1978 proceeding averring that their custom was to ensure that it was explained to each defendant that waiver of their right to a jury trial was a consequence of a guilty plea.

The only document provided from the court file on the 1978 conviction is the judgment with attached sentence, neither of which contain an express waiver of the right to a jury trial.^[4]  There are no other documents relating to the plea; specifically, there is no plea agreement, no judicial confession, or stipulation of evidence.  The trial court found that a Certificate of Record Search provided by the Harris County District Clerk showed that unspecified records in this case had been destroyed.

Thus, the State made a particularized showing of prejudice by the inability to produce records showing appellant knowingly waived a jury trial.  Laches is appropriate to bar a claim that the record is silent when there is evidence that parts of the record have been destroyed due to the passage of time. 

The trial court also found that appellant=s affidavit claiming that no oneC not his attorney, the trial judge, or the prosecutorC informed him he had a right to a jury trial was not credible because of appellant=s failure to challenge the plea during the last thirty years, combined with his long criminal history.^[5] The Court of Criminal Appeals has recognized that in some circumstances, the applicant=s delay in seeking relief can prejudice the credibility of his claim.  See Ex parte Young, 479 S.W.2d 45, 46 (Tex. Crim. App. 1972).  The testimony of the defendant alone is insufficient to rebut the presumption of regularity in the judgment.  Reeves v. State, 500 S.W.2d 648, 649 (Tex. Crim. App. 1973);  Brown v. State, 917 S.W.2d 387, 390 (Tex. App.CFort Worth 1996, pet. ref=d).  We conclude that the trial court did not abuse its discretion in determining that appellant=s claim that he did not waive his right to a jury trial was not credible.

In appellant=s second ground, he asserted that the judgment is defective because it was not signed by the trial judge.  The statute requiring the judge=s signature on judgments and sentences, section 1 of article 42.01 of the Code of Criminal Procedure, applies only to judgments entered after September 1, 1981.  Jones v. State, 843 S.W.2d 92, 100-01 (Tex. App.CDallas 1992, pet. ref=d).  See Act of June 8, 1981, 67th Leg., R.S., ch. 291, ' 149, 1981 Tex. Gen. Laws 761, 820.  The trial court found that the lack of a signature did not invalidate the presumptive validity of the judgment.  Because there was no signature requirement when appellant was convicted in 1978, the trial court did not abuse it discretion in denying appellant=s claim for relief.

In conclusion, we hold that the trial court did not abuse its discretion in denying appellant=s application for habeas corpus relief.  We affirm the order of the trial court. 

PER CURIAM

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Appellant=s counsel has not favored the Court with a brief in this appeal, despite being granted an extension of time until February 27, 2009.  In an appeal from an order in a habeas corpus proceeding, the court of appeals may determine whether it desires briefs.  Tex. R. App. P. 31.1. Habeas corpus appeals are to be heard at the earliest practicable time.  Tex. R. App. P. 31.2.  Accordingly, the Court has determined that it will consider this appeal on the record without briefs.

^[2]  The statute provides as follows:

If a person is confined on a charge of misdemeanor, he may apply to the county judge of the county in which the misdemeanor is charged to have been committed, or if there be no county judge in said county, then to the county judge whose residence is nearest to the courthouse of the county in which the applicant is held in custody.

Tex. Code Crim. Proc. Ann. art. 11.09 (Vernon 2005) (emphasis supplied).

^[3]  We assume, without deciding, that a silent record is also insufficient in a habeas proceeding.  But see West v. State, 720 S.W.2d 511, 519 (Tex. Crim. App. 1986) (holding that in a collateral attack, the burden is on the party attacking the validity of a conviction to show that the entire record is silent as to jury waiver),  Bruce v. State, 744 S.W.2d 618, 619 (Tex. App.CHouston [1st Dist.] 1987, pet. ref=d) (recognizing that the rule in Samudio was limited to direct appeals). 

^[4]  There is also no transcription of a hearing on the plea proceeding included the record.  At the time of appellant=s 1978 plea, misdemeanor jury waivers were not required to be in writing. See State v. Welch, 810 S.W.2d 13, 16 (Tex. App.CAmarillo 1991, no pet.).

^[5]  The trial court found that during the intervening thirty years, appellant was twice convicted of misdemeanor driving under the influence of drugs, misdemeanor driving while intoxicated reduced from a felony, felony driving while intoxicated, another misdemeanor driving while intoxicated, a second felony driving while intoxicated, and when this application was filed, he was charged with a third felony driving while intoxicated.  The court added that appellant entered a guilty plea to this latest charge, on September 4, 2008, and received a seven-year probated sentence.