Ex Parte Jaime v. Mancilla ( 2021 )

Affirmed and Memorandum Opinion filed October 26, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00052-CR
EX PARTE JAIME V. MANCILLA
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Cause No. 1046871A
MEMORANDUM OPINION
Applicant Jaime V. Mancilla appeals from the trial court’s order denying his
application for a writ of habeas corpus filed under article 11.072 of the Texas Code
of Criminal Procedure. We affirm the trial court’s denial of habeas corpus relief.
I. INVOLUNTARY PLEA
Applicant argues that his plea was involuntary because his counsel was
ineffective. He argues that he was denied effective assistance of counsel based on
counsel’s failure to investigate the three-year delay in appellant’s arrest and failure
to bring a claim that appellant’s Sixth Amendment right to a speedy trial was
violated.
A. General Legal Principles
We review a ruling on an application for writ of habeas corpus for an abuse
of discretion. Ex parte Garcia, 353 S.W.3d 785, 787 (Tex. Crim. App. 2011). A
trial court abuses its discretion when it acts without reference to any guiding
principles or when it acts arbitrarily or unreasonably. Ex parte Wolf, 296 S.W.3d
160, 166 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). A trial court abuses
its discretion if its decision lies outside the zone of reasonable disagreement. Id.An applicant seeking post-conviction habeas corpus relief shoulders the burden to
establish by a preponderance of the evidence that the facts entitle the applicant to
relief. Id.We examine the evidence in the habeas 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 trial court is the sole fact finder in a post-conviction application for
writ of habeas corpus under article 11.072. Ex Parte Torres, 483 S.W.3d 35, 42
(Tex. Crim. App. 2016). We afford almost total deference to the habeas court’s
determination of historical facts supported by the record, especially when those
factual findings rest upon an evaluation of the witnesses’ credibility and demeanor.
Ex parte Reed, 402 S.W.3d 39, 42 (Tex. App.—Houston [14th Dist.] 2013, pet.
ref’d). We apply the same deference to review the habeas court’s application of
law to fact questions if resolving those determinations rests upon an evaluation of
credibility and demeanor; if the outcome of those ultimate questions turns upon an
application of legal standards, we review the habeas court’s determination de novo.
Id. We will uphold the trial court’s ruling as long as it is correct on any theory of
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law applicable to the case. Ex parte Taylor, 36 S.W.3d 883, 886 (Tex. Crim. App.
2001) (per curiam).
A criminal defendant has the right to effective assistance of counsel in
guilty-plea proceedings. Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim.
App. 2010). “In order to prevail on a Sixth Amendment claim of ineffective
assistance of counsel, a habeas applicant must show, by a preponderance of the
evidence, that ‘counsel’s performance was deficient.’” Ex parte Bowman, 533
S.W.3d 337, 349 (Tex. Crim. App. 2017) (quoting Strickland v. Washington, 466
U.S. 668, 687–88 (1984)). “The applicant must show that counsel’s performance
failed to satisfy an objective standard of reasonableness under prevailing
professional norms.” Id. at 349–50. We must assess reasonableness under the
circumstances of the case viewed at the time of counsel’s conduct. Id. “There are
countless ways to provide effective assistance in any given case.” Strickland, 466
U.S. at 689. There is a presumption that counsel “rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional
judgment.” Id; see Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001)
(“The review of counsel’s representation is highly deferential and presumes that
counsel’s actions fell within a wide range of reasonable professional assistance.”).
“Counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary. Id at 691.
“[A] particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of deference to
counsel’s judgments.” Wiggins v. Smith, 539 U.S. 510, 521–22 (2003).
In addition to showing that counsel’s performance fell below an objective
standard of reasonableness under prevailing professional norms, the habeas
applicant must also show that there is a reasonable probability that but for
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counsel’s errors, the result of the proceeding would have been different. Jackson
v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). In the context of a motion
to dismiss for violating the applicant’s Sixth Amendment right to a speedy trial,
applicant must show that the motion would have been granted. See id.(“[A]ppellant was still obliged to prove that a motion to suppress would have been
granted in order to satisfy Strickland.”); Roberson v. State, 853 S.W.2d 508, 510–
12 (Tex. Crim. App. 1993) (without a showing that a pre-trial motion had merit
and that a ruling on the motion would have changed the outcome of the case,
counsel will not be ineffective for failing to assert the motion).
“The Sixth Amendment to the United States Constitution, made applicable
through the Fourteenth Amendment, guarantees a speedy trial to an accused.”
Gonzales v. State, 435 S.W.3d 801, 808 (Tex. Crim. App. 2014). A court should
consider the four Barker factors in addressing a speedy-trial claim: (1) the length
of delay, (2) the State’s reason for delay, (3) the defendant’s assertion of his right
to a speedy trial, and (4) prejudice to the defendant because of the length of the
delay. See Barker v. Wingo, 407 U.S. 514, 530 (1972); see also Balderas v. State,
517 S.W.3d 756, 767 (Tex. Crim. App. 2016). To trigger a full Barker analysis, a
defendant must first make a threshold showing that the interval between accusation
and trial is “presumptively prejudicial.” Balderas, 517 S.W.3d at 767. Generally,
courts deem delays approaching one year as unreasonable enough to trigger further
inquiry. Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003).
B. Background
Appellant sexually assaulted his sister-in-law on October 30, 2005. In early
November 2005, investigators spoke with the complainant, applicant’s wife, and
applicant. Applicant’s wife provided applicant’s phone number to investigators.
After meeting with investigators, in mid-November 2005, appellant was indicted.
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The police report indicated that officers responded to a disturbance at an
apartment, the address where the sexual assault occurred as listed in the report. In
his statement to the investigator, applicant indicated that he, his wife, and the
complainant had returned to his apartment after going out drinking and that a
consensual sexual encounter occurred there between applicant and the
complainant.
In January and February 2006, four months after the assault, authorities
attempted to serve the arrest warrant on applicant at the address listed in the police
report. Authorities again attempted this address in April 2006 but were informed
by neighbors that applicant had moved. The records show that the authorities
attempted to locate applicant by checking the Texas Workforce Commission
Database in December 2006, January 2008, and May 2008. Applicant was not
arrested until March 2009. In June 2009, applicant pleaded guilty and was
sentenced to ten years’ deferred adjudication.
Applicant’s former trial counsel testified that he occasionally files speedy-
trial motions when he believes his client has a viable claim but did not “really
recall having focused very much on that point” in applicant’s case. He testified
that, had he considered it viable in applicant’s case, he would have filed a speedy-
trial motion. Applicant’s trial counsel did not make any attempt to investigate
efforts made by law enforcement to execute on the arrest warrant.
A sergeant with the Harris County Sheriff’s Office testified regarding the
records for the Harris County Sheriff’s Office and attempts to serve applicant’s
arrest warrant. The officer testified that the sheriff’s office entered the warrant into
a state database and a national database. In April 2006, applicant’s warrant was
“pulled for Operation Falcon,” a “task force between the sheriff’s office, U.S.
Marshalls as well as other agencies.” The task force was to “go after certain types
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of warrants” with the U.S. Marshalls but that the sheriff’s office did not have
access to the records of the results of the task force operations. The officer
testified that there are approximately sixty-five agencies in Harris County that
“have jurisdiction” to serve warrants and that the sheriff’s office is only required to
document its own attempts at serving the warrant. The officer testified that he
would not know about any other attempts made to serve applicant’s warrant that
may have occurred through another agency, but that no one in the sheriff’s office
had gone to a physical address to locate applicant between April 2006 and March
2009.
Applicant testified that his lawyer never advised him of his “right to a
speedy trial.” Applicant testified that he and his wife were in constant contact
during this period, they separated for a time, resumed their relationship, and had a
child. Applicant also had frequent contact with the complainant. Applicant
testified that he knew there was an investigation, but that he was not aware of any
news coverage of the incident, he was able to maintain employment, and it did not
impede his life in any way.
The trial court concluded that, because of the three-year delay, applicant was
entitled to an examination of his speedy-trial claim. However, upon review of the
Barker factors, the trial court concluded that applicant’s speedy-trial motion would
have been unsuccessful. The trial court concluded that “there is no evidence that
the delay was deliberate or the result of negligence. There is no evidence that the
[applicant’s] reputation, employment, and/or marriage suffered from the delay.
The [applicant] was not subject to incarceration, anxiety, and there is no evidence
his defense was impaired.”
The trial court concluded that trial counsel’s conduct was within the range of
competence of criminal defense attorneys and that if a speedy-trial motion had
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been filed, it likely would have failed. The trial court also considered
“unpersuasive” applicant’s testimony that he would not have pleaded guilty and
insisted on going to trial, because the State possessed DNA evidence of the sexual
encounter and the complainant did not recant her statement regarding the sexual
assault.
C. Speedy Trial
Assuming without deciding that applicant showed by a preponderance of the
evidence that his trial counsel failed to conduct an adequate preliminary
investigation to inform his decision to not file a speedy-trial motion, applicant must
also show that a speedy-trial motion would have been successful. See Jackson,
973 S.W.2d at 957. To determine whether a speedy-trial motion would have been
successful, we review and balance the Barker factors. See 407 U.S. at 530.
1. Length of Delay
The delay of forty-three months from indictment to applicant’s guilty plea is
sufficient to trigger a speedy-trial analysis. See Harris v. State, 827 S.W.2d 949,
956 (Tex. Crim. App. 1992) (noting delay of eight months or longer is
presumptively unreasonable and triggers speedy-trial analysis).
2. Reason for Delay
The evidence showed that the sheriff’s office attempted to serve applicant
three times at his residence, the location of the sexual assault, shortly after he was
indicted. In the last service attempt made by the sheriff’s office, the neighbors
confirmed that applicant had moved. While the officer testified that there are
sixty-five other agencies that may serve warrants, aside from “Operation Falcon,”
there was no evidence of attempts, if any, made by other agencies. The evidence
showed that from May 2006 through March 2009, the sheriff’s office continued to
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check various databases for applicant’s location or address but did not make any
attempts to physically serve the warrant until March 2009. A reasonable inference
is that the sheriff’s office did not have a good address for applicant and was unable
to locate applicant through their usual database inquiries.
Applicant argues that no effort was made to contact the complainant,
applicant, or applicant’s wife to ascertain an address for service of the warrant.
However, this assertion is not supported by the record. Neither applicant’s wife
nor the complainant testified at the hearing. It is unclear from the record whether
applicant, the complainant, or the complainant’s wife were contacted to locate and
serve the warrant on applicant. The officer testified that the sheriff’s office did not
have access to the contact information in the Houston Police Department’s police
report. The officer also testified that he was unaware that the complainant was the
applicant’s sister-in-law. The trial court found the officer’s testimony credible.
Based on the evidence, reasonable inferences therefrom, and the deference
given to the trial court in factual determinations, the trial court did not abuse its
discretion in concluding that the State was neither deliberately delaying applicant’s
trial nor negligent in failing to locate and serve him. See Kelly v. State, 163
S.W.3d 722, 726–27 (Tex. Crim. App. 2005) (deferring to trial court’s resolution
of factual issues, right to draw reasonable inferences therefrom, and ability to
completely disregard uncontroverted witness testimony based on evaluations of
credibility and demeanor in speedy trial context); see also Cantu v. State, 253
S.W.3d 273, 282 (Tex. Crim. App. 2008) (“[A]ll evidence must be viewed in the
light most favorable to [the trial court’s] ruling.”).
3. Timely Assertion of Right
A defendant’s timely assertion of his right to a speedy trial may depend upon
whether the defendant knew about the outstanding charges. See Doggett v. United
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States, 505 U.S. 647, 653 (1992). When a defendant is not aware that charges have
been filed, courts hold it would be illogical to impose a penalty for not asserting
speedy-trial rights during that period. See Phillips v. State, 650 S.W.3d 396, 400
(Tex. Crim. App. 1983) (not faulting defendant for not asserting his right to speedy
trial where he was unaware that he had been indicted and, therefore, had no
opportunity to assert his right); Gonzales, 435 S.W.3d at 812 (undisputed evidence
established defendant had no knowledge that charges were filed against him, thus
failure to not assert his right for that six year period was not held against him). It
was undisputed that applicant did not know of the pending charges.1 Thus,
applicant’s failure to assert his right during the time period between his indictment
and arrest cannot be held against him. See Phillips, 650 S.W.3d at 400; Gonzales,
435 S.W.3d at 812. However, applicant claims that his trial counsel was
ineffective for failing to file a motion to dismiss based on the denial of his right to
a speedy trial. If trial counsel had immediately filed a motion to dismiss, the trial
court may have weighed his request for dismissal, rather than request for speedy
trial, against applicant when weighing the Barker factors. See Cantu, 253 S.W.3d
at 284; Phillips, 650 S.W.2d at 401 (Tex. Crim. App. 1983) (“[Appellant’s] prime
object was not to gain a speedy trial, but was an attempt to have the charge against
him dismissed. Although a motion to dismiss notifies the State and the court of the
speedy-trial claim, a defendant’s motivation in asking for dismissal rather than a
prompt trial is clearly relevant, and may sometimes attenuate the strength of his
claim.” (quotation and citation omitted)). Thus, while we do not fault applicant for
not raising the speedy-trial issue in the forty months between his indictment and
arrest, if his counsel had filed a motion to dismiss as applicant insists he should
have, the trial court could weigh this factor against applicant, but not heavily.
1
The trial court did not make an express credibility determination on this portion of
applicant’s testimony.
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4. Prejudice
“When a court analyzes the prejudice to the defendant, it must do so in light
of the defendant’s interests that the speedy-trial right was designed to protect: (1)
to prevent oppressive pretrial incarceration, (2) to minimize the accused’s anxiety
and concern, and (3) to limit the possibility that the accused’s defense will be
impaired.” Cantu, 253 S.W.2d at 285. Of these, the last is the most serious
because the defendant’s inability to prepare his case skews the fairness of the entire
system. Id. “[E]xcessive delay presumptively compromises the reliability of a
trial in ways that neither party can prove or, for that matter, identify.” Doggett,
505 U.S. at 655.
Here, applicant failed to demonstrate or articulate any sort of prejudice. See
Dragoo, 96 S.W.3d at 315–16 (prejudice factor weighed against violation of
defendant’s speedy-trial right even though three-and-a-half-year delay was
“patently excessive” and “presumptively prejudicial” because defendant
acquiesced in the delay and failed to demonstrate prejudice); Phipps v. State, 630
S.W.2d 942, 946 (Tex. Crim. App. 1982) (where defendant demonstrated no
prejudice by four-year delay between arrest and trial and defendant waited until
one month before trial to assert his right to a speedy trial, defendant’s Sixth
Amendment right to a speedy trial not violated). Applicant was aware that there
was an investigation but testified that it did not impede his life in any way.
Applicant did not put on any evidence that at the time of his guilty plea his defense
had been impaired, that he had been subjected to a lengthy pre-trial incarceration,
that any witnesses had died or become unavailable, or that he suffered any kind of
anxiety or concern over the charges.
Applicant argues that the State’s delay of over forty-two months raises a
presumption of prejudice and that the State has the burden of affirmatively proving
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the delay left the applicant’s ability to defend himself unimpaired. See Dragoo, 96
S.W.3d at 315 (agreeing that three-and-a-half year delay between arrest and trial
was “patently excessive” and “presumptive[ly] prejudice[ial]” to the defendant’s
ability to defend himself); Zamorano v. State, 84 S.W.3d 643 (Tex. Crim. App.
2002) (delay of four years supported “inference of actual prejudice” under fourth
Barker factor, but considering the defendant’s evidence of prejudice as well).
In Shaw the delay between the defendant’s indictment and trial was a period
of thirty-eight months. Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App.
2003). The court stated that it “must presume that the lengthy delay here did
adversely affect [the defendant’s] ability to defend himself” and the “presumption
is extenuated by [the defendant’s] longtime acquiescence in the delay.” Id. at 890.
The court concluded that because the trial court could have reasonably concluded
that the defendant did not “demonstrate any actual prejudice” that the fourth
Barker factor weighed against finding a violation of the defendant’s right to a
speedy trial. Id. at 890–91.
In applicant’s case, the lengthy delay of forty-three months would have
raised a presumption that applicant’s ability to defend himself was adversely
affected. See Dragoo, 96 S.W.3d at 315 (thirty-six month delay); Shaw, 117
S.W.3d at 889 (thirty-eight months). However, there is no evidence in the record
as to whether trial counsel was aware that this presumption would apply in
applicant’s case or whether trial counsel knew that the State could rebut the
presumption based on the facts of the case at the time of the guilty plea. Cf.
Roberson, 852 S.W.2d at 510 (“It is possible that counsel consulted with his client
and determined that production of the photos would in fact discredit appellant’s
sole defense of mistaken identity. . . . Although a hearing was held on appellant’s
motion for new trial based on allegations of ineffective assistance, no questions
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were asked of counsel in this respect.”); Jackson, 973 S.W.2d at 956 (defendant
claiming ineffective assistance of counsel by attorney’s failure to file motion to
suppress had to prove motion would have been granted).
Because there is no evidence that trial counsel was aware that the delay
would be considered presumptively prejudicial or whether trial counsel knew
whether the State would be able to rebut the presumption, there was no evidence of
any prejudice, anxiety or lengthy pre-trial incarceration, and trial counsel testified
that it was his practice to file a speedy-trial motion when he believed it to be
meritorious, we presume that trial counsel’s representation fell within the wide
range of reasonable and professional assistance. See Mallett v. State, 65 S.W.3d
59, 63 (Tex. Crim. App. 2001). Accordingly, we conclude that this factor weighs
in favor of the State, but not heavily.
5. Balancing the Barker Factors
Balancing the four factors, we agree with the trial court that applicant’s
speedy-trial motion would likely have failed. Applicant has failed to prove by a
preponderance of the evidence that a speedy-trial motion would have been
meritorious.
D. Ineffective Assistance of Counsel
Appellant has not shown that a speedy-trial motion would have been
granted. See Jackson, 973 S.W.2d at 956; Roberson, 853 S.W.2d at 510–12. As a
result, he has not shown that his trial counsel was ineffective.
II. CONCLUSION
Because the record fails to affirmatively demonstrate the alleged ineffective
assistance of counsel and because applicant has failed to carry his burden of proof
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to establish ineffective assistance of counsel, we affirm the trial court’s denial of
habeas corpus relief.
/s/ Ken Wise
Justice
Panel consists of Justices Wise and Bourliot and Senior Justice Jamison.*
Do Not Publish — TEX. R. APP. P. 47.2(b).
*
Senior Justice Martha Hill Jamison sitting by assignment.
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