We find it particularly disingenuous that the State, after misleading the trial court about when the sixty-day deadline would run, and then promising

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NUMBER 13-05-00181-CR


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG

THE STATE OF TEXAS, Appellant,


v.


ESTANISLADO MORIN, Appellee.

On appeal from the 275th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION


Before Justices Hinojosa, Rodriguez, and Garza

Memorandum Opinion by Justice Hinojosa


The State appeals from the trial court's order granting appellee Estanislado Morin's application for writ of habeas corpus and granting a new trial. (1) In three issues, the State contends the trial court (1) used the incorrect legal standard to evaluate appellee's newly-discovered evidence claim, (2) abused its discretion in granting his application for writ of habeas corpus based on newly-discovered evidence, and (3) failed to enter the habeas corpus order within the statutory time limit. We reverse and remand.

A. Factual & Procedural Background

A jury found appellee guilty of two counts of indecency with a child and assessed his punishment at five years' imprisonment and a $ 5,000 fine for each count. Because the jury recommended that the prison sentences and fines for both counts be suspended and that appellee be placed on community supervision, the trial court suspended the prison sentences and fines for both counts, and placed appellee on community supervision for five years for each count. (2) Subsequently, appellee was deported and complied with the terms of his community supervision by mail.

On October 10, 2003, appellee applied for a post-conviction writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure, alleging (1) ineffective assistance of counsel and (2) newly-discovered evidence of innocence. In support of his newly-discovered evidence allegations, appellee attached an affidavit of the complaining witness, Veronica Salazar, (3) dated September 19, 2003, wherein she recanted her prior testimony. The State did not receive notice of the application until April 27, 2004, and filed a response on May 24, 2004. The State attached an affidavit, dated May 4, 2004, wherein Salazar recanted her September 19, 2003 recantation. The State also noted that appellee should have filed his post-conviction writ pursuant to article 11.072, instead of article 11.07. (4) See Tex. Code Crim. Proc. Ann. arts. 11.07, 11.072 (Vernon 2005).

On May 27, 2004, the trial court overruled appellee's claim of ineffective assistance of counsel and ordered a hearing on appellee's issue regarding the newly-discovered evidence of innocence. That hearing was held on June 29, 2004, and Salazar testified about her conflicting affidavits. The proceedings were then recessed to July 16, 2004, so that appellee, who was absent because of his deportation, could be present.

The hearing resumed on July 16, 2004, without appellee, who waived his presence. Both sides discussed the sixty-day statutory deadline at great length, and several times the State told the trial court that it would waive the sixty-day deadline, if it could be waived. Both sides mistakenly told the court when they thought the sixty-day deadline would elapse. Salazar testified again regarding her affidavits, explaining that she was pressured by family members to execute the September 19, 2003 affidavit, and her testimony at trial was truthful. After the hearing, the trial court said that before it ruled, it wanted additional memorandums from both sides. On October 22, 2004, the trial court ruled that Salazar's credibility was a question for a jury, and orally granted appellee a new trial. A written order reflecting this ruling was signed on March 4, 2005.

B. Standard of Review

In reviewing a district court's decision to grant a habeas corpus petition, we review the application of legal standards de novo. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003). We afford almost total deference to the trial judge's determination of the historical facts supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. See Ex parte Martin, 6 S.W.3d 524, 526 (Tex. Crim. App. 1999). However, "if the record will not support the trial judge's conclusions, then this Court may make contrary findings." See Ex parte Adams, 768 S.W.2d 281, 288 (Tex. Crim. App. 1989).

C. Discussion

In its third issue, the State contends the trial court erred by failing to enter its written order within the statutory deadline of sixty days. The State argues that because the order was not entered within the sixty-day period, the order is void and appellee's application was denied by operation of law. (5)

Article 11.072 of the code of criminal procedure provides that: "Not later than the 60th day after the day on which the State's answer is filed, the trial court shall enter a written order granting or denying the relief sought in the application." Tex. Code Crim. Proc. Ann. art. 11.072. Because the State's answer to appellee's application was filed on May 24, 2004, the 60th day was July 23, 2004.

Habeas corpus petitions are to be heard without delay. See Tex. Const. art. I, § 12; Tex. Code Crim. Proc. Ann. art 11.07; Martin v. Hamlin, 25 S.W.3d 718, 719 (Tex. Crim. App. 2000); McCree v. Hampton, 824 S.W.2d 578, 578-79 (Tex. Crim. App. 1992). The proper remedy to a trial court's delay in ruling on a habeas corpus petition under article 11.072 is to file for a petition for a writ of mandamus from this Court. See Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Crim. App. 1991). After a trial court's ruling on a habeas corpus petition, compliance with statutory deadlines becomes moot. See McCree, 824 S.W.2d at 579; see also Ex parte Kendrick, No. 01-95-00161-CR, 1996 Tex. App. LEXIS 3400, *2 (Tex. App.-Houston [1st Dist.] 1996, pet. ref'd) (not designated for publication).

The record shows the trial court failed to rule on appellee's habeas corpus petition within the sixty days required by article 11.072. However, because the trial court ultimately ruled on the petition, we conclude that the timing issue is moot. (6) The State's third issue is overruled.

In its first issue, the State contends the trial court used the incorrect legal standard to evaluate appellee's newly-discovered evidence claim. Claims of actual innocence fall into two categories: Herrera claims and Schlup claims. See Schlup v. Delo, 513 U.S. 298 (1995); Herrera v. Collins, 506 U.S. 390 (1993). A bare claim of actual innocence based solely on newly-discovered evidence is an Herrera claim, whereas a claim of actual innocence that is tied to a claim of constitutional error at trial is a Schlup claim. Schlup, 513 U.S. at 314. Because the Herrera and Schlup claims are different, they employ different burdens of proof. Id.

Because the verdict of a constitutional-error-free trial commands the greatest respect, the criminal justice system has a need for finality, and retrying stale cases that were originally tried years before imposes a heavy burden on the State, the burden of proof in Herrera claims is "extraordinarily high." See Herrera, 506 U.S. at 417; Davila v. State, 147 S.W.3d 572, 577-78 (Tex. App.-Corpus Christi 2004, pet. ref'd). To succeed in an Herrera claim, "the petitioner must show by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence." Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996).

Appellee's first trial was found to be error-free by this Court in Morin v. State, No. 13-01-00001, 2002 Tex. App. LEXIS 3783 (Tex. App.-Corpus Christi 2002, pet. ref'd) (not designated for publication). Furthermore, appellee's claim of innocence is unaccompanied by a claim of constitutional error and is therefore an Herrera claim. Accordingly, appellee must show by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence. Because the trial court ruled that "the proper forum to decide the credibility of a victim is the jury," we conclude it used the wrong legal standard. The State's first issue is sustained.

In light of our disposition of the State's first and third issues, it is unnecessary to address the State's second issue. See Tex. R. App. P. 47.1.

The trial court's order granting appellee's application for a writ of habeas corpus is reversed. The case is remanded to the trial court to timely determine whether appellee has shown by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence. (7)


FEDERICO G. HINOJOSA

Justice


Do not publish. See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this the 17th day of August, 2006.

1.
See Tex. Code Crim. Proc. Ann. art. 44.01(k) (Vernon Supp. 2006) ("The state is entitled to appeal an order granting relief to an applicant for a writ of habeas corpus under Article 11.072.").

2.
This Court affirmed appellee's conviction on May 23, 2002. See Morin v. State, No. 13-01-001-CR, 2002 Tex. App. LEXIS 3783 (Tex. App.-Corpus Christi 2002, pet. ref'd).

3. Appellee is Veronica Salazar's uncle by marriage to her mother's sister.

4. The record reflects that the parties agreed to proceed under article 11.072, and that relator did not need to refile.

5.
Because the State's third issue affects our ability to consider the State's remaining two issues, we will decide it first.

6.
We find it particularly disingenuous that the State, after misleading the trial court about when the sixty-day deadline would run, and then promising to waive it in any event, is now raising it as an issue on appeal.

7.
It would be improper for this Court to evaluate the merits of appellee's petition de novo because only the district court has the power to grant appellee's petition. See Tex. Code Crim. Proc. Ann. art 11.072 (Vernon 2005); see also Ex parte Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002) (ordering remand of article 11.07 habeas petition to consider under correct standard).

Now we know why Marshall Dissented in Strickland v Washington.......no attorney "engaged" unless paid! Even he knew that!

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NUMBER 13-04-00271-CR



COURT OF APPEALS



THIRTEENTH DISTRICT OF TEXAS



CORPUS CHRISTI B EDINBURG



RAUL YDROGO, JR., Appellant,



v.



THE STATE OF TEXAS, Appellee.



On appeal from the 105th District Court of Kleberg County, Texas.



MEMORANDUM OPINION[1]



Before Justices Hinojosa, Rodriguez, and Garza

Memorandum Opinion by Justice Hinojosa



Appellant, Raul Ydrogo, Jr., pleaded guilty to the offense of aggravated assault. The trial court deferred the adjudication of guilt and placed appellant on community supervision for a term of five years. In 2002, in response to the State=s motion to revoke appellant=s community supervision, the trial court ordered Ydrogo to attend a Substance Abuse Felony Punishment Facility. In 2004, the State filed a second motion to revoke. After appellant pleaded Atrue@ to the allegations contained in the motion, the trial court found that appellant had violated the terms of his community supervision, adjudicated him guilty of the offense of aggravated assault, and assessed his punishment at twenty years= imprisonment. In three issues, appellant contends he received ineffective assistance of counsel at the hearing on the motion to revoke his community supervision. We affirm.

Appellant contends his counsel was ineffective because (1) he did not present any evidence in defense of appellant, (2) he advised appellant to plead Atrue@ to the violations in the motion to revoke community supervision, and (3) he failed to present any evidence at the punishment phase of the hearing.

We adhere to the United States Supreme Court=s two‑pronged test to determine whether counsel=s representation was so inadequate that it violated appellant=s Sixth Amendment right to counsel. Strickland v. Washington, 466 U.S. 668, 687‑88 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986); Munoz v. State, 24 S.W.3d 427, 433 (Tex. App.BCorpus Christi 2000, no pet.). Allegations of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). First, the appellant must show that counsel=s performance was deficient; in other words, that counsel=s assistance fell below an objective standard of reasonableness. Hernandez, 726 S.W.2d at 55. The deficiency must be of the extent that counsel failed to function as counsel. Yates v. State, 917 S.W.2d 915, 920 (Tex. App.BCorpus Christi 1996, pet. ref=d). Second, the appellant must prove that Athe deficient performance prejudiced the defense@ by Aa reasonable probability that, but for counsel=s errors, the result of the proceeding would have been different.@ Munoz, 24 S.W.3d at 433. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 693; Hernandez, 726 S.W.2d at 55. AFailure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.@ Strickland, 466 U.S. at 700.

Appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991). In the absence of evidence of counsel=s reasons for the challenged conduct, we will assume a strategic motivation and will not conclude that the conduct was deficient unless the conduct was so outrageous that no competent attorney would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); Thompson, 9 S.W.3d at 814; see Aldrich v. State, 104 S.W.3d 890, 896 (Tex. Crim. App. 2003) (AAppellate courts can rarely decide the issue of unreasonable performance because the appellate record rarely speaks to the strategic reasons that counsel may have considered.@).

There is a rebuttable presumption that counsel is better positioned than the appellate court to judge the pragmatism of the particular case and that counsel made all significant decisions in the exercise of reasonable professional judgment. Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App. 1992). The presumption may be rebutted by evidence of counsel=s reasoning or lack thereof. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). The most effective way to demonstrate ineffective assistance of counsel is by presenting evidence at a hearing on a motion for new trial. See generally McCain v. State, 995 S.W.2d 229, 245 (Tex. App.BHouston [14th Dist.] 1999, pet. denied).

The record reflects that appellant filed a motion for rehearing of the motion to revoke, but no action was taken on the motion. Thus, the record contains no evidence demonstrating counsel=s reasoning or lack thereof. Consequently, appellant=s allegations of ineffectiveness are not firmly founded in the record, and the record does not affirmatively demonstrate the alleged ineffectiveness. McFarland, 928 S.W.2d at 500. Accordingly, we hold that appellant has not sustained his burden of proving his ineffective assistance claims by a preponderance of the evidence.[2] Appellant=s first, second, and third issues are overruled.

The judgment of the trial court is affirmed.



FEDERICO G. HINOJOSA

Justice





Do not publish. See Tex. R. App. P. 47.2(b).



Memorandum Opinion delivered and filed

this the 8th day of June, 2006.

[1] Because the issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and facts in this opinion except as necessary to advise the parties of our decision and the basic reasons for it. See Tex. R. App. P. 47.4.



[2] This holding does not prevent appellant from raising this claim by an application for post-conviction writ of habeas corpus. Ex parte Nailor, 149 S.W.3d 125, 130-31 (Tex. Crim. App. 2004); Ex parte Varelas, 45 S.W.3d 627, 629 (Tex. Crim. App. 2001).