The State of Texas v. Rosemarie Flores

Reverse and Render and Opinion Filed April 2, 2024

In The
Court of Appeals
Fifth District of Texas at Dallas
Nos. 05-23-00897-CR
05-23-00905-CR

EX PARTE THE STATE OF TEXAS

On Appeal from the County Criminal Court No. 6
Dallas County, Texas
Trial Court Cause Nos. MC23A0366, MC23A0351

MEMORANDUM OPINION
Before Justices Partida-Kipness, Nowell, and Smith
Opinion by Justice Nowell
We withdraw our prior opinion and judgment in case 05-23-00897-CR dated

March 11, 2023, and substitute the following opinion and judgment in its place.

The State appeals the trial court’s order granting the relief requested in the

applications for writ of habeas corpus filed by Rosemarie Flores. The State contends

(i) the trial court abused its discretion when it considered the merits of appellee’s

applications because it lacked jurisdiction to do so, (ii) the trial court erred in finding

laches did not bar appellee’s claims, and (iii) the trial court erred in granting

appellee’s applications because appellee failed to prove by a preponderance of the

evidence that her pleas were involuntary. For the reasons that follow, we conclude
the trial court abused its discretion in granting appellee’s requested relief because

the writ applications are barred by the equitable doctrine of laches. We reverse the

trial court’s order and render a judgment denying appellee’s applications for habeas

relief.

I. BACKGROUND FACTS

On February 1, 1996, appellee Rosemarie Flores entered negotiated pleas of

nolo contendere to two Class B misdemeanor offenses of prostitution and was

sentenced to thirty days in county jail in each case. Appellee did not appeal her

convictions. Twenty-seven years later, in March 2023, appellee filed applications

for a writ of habeas corpus challenging the convictions in each case.

In her applications, appellee alleged that her pleas in the underlying

misdemeanor cases were “involuntary and the result of ineffective assistance of

counsel.” Specifically, appellee alleged that her court-appointed attorney, who she

did not identify in the applications, did not visit with her or admonish her until the

day she entered her pleas, did not explain the waivers she was making by entering

her pleas, did not admonish her on the collateral consequences of her pleas, did not

admonish her that the cases would remain on her record, and “made no serious effort

to obtain deferred adjudication or community supervision” for her. Appellee further

alleged that counsel’s representation was inadequate because he failed to advise her

“as to other collateral consequences of a conviction, such as a bar to certain state

licenses, exclusion from certain jobs and exclusion from certain professional

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schools. He also failed to admonish her about the moral consequences of having a

prostitution conviction on her record.”

The trial court held a hearing on appellee’s applications. Appellee testified

that she was presently employed as a “paralegal/office manager” for her writ

counsel, Vickers Cunningham, and has been a legal assistant in writ counsel’s office

since April 19, 2019. Further, appellee testified that she had obtained her bachelor’s

degree and wished to attend the “University of North Texas Law School,” but she

could not sit for the bar examination because her 1996 misdemeanor convictions

were for crimes involving moral turpitude. During the hearing, appellee provided no

testimony that she was unaware of the waivers that would result from entering pleas

of guilty/nolo contendere.

At the conclusion of the hearing, the trial court made the following ruling:

The Court is finding that there is sufficient collateral damage in this
case and denying the claim of laches by the State. And the Court is
finding that the [appellee’s] pleas at the time were involuntary because
the attorney — there is uncontradicted evidence that the [appellee] was
not aware of what all of her options were.

But, even though Mr. Fitzenhagen was not required by law to inform
her, the Court is finding that the pleas entered were not made knowingly
and intelligently. And, thereby, they were involuntary, because of her
not knowing all of her options.

You know, and personally, when I heard your client testifying, I
thought, well, just because she would have been unaware of those
options doesn’t mean that she would have taken advantage of them. But
that’s not the point of the law. The law is, bottom line, is she wasn’t
even given the opportunity to reject it.

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The trial court entered a written order in each case granting habeas relief on

the basis that appellee’s pleas were involuntary due to the ineffective assistance of

her counsel.

II. THE TRIAL COURT HAD JURISDICTION TO CONSIDER
APPELLEE’S WRIT OF HABEAS CORPUS APPLICATIONS.

Initially, we address the State’s claim the trial court lacked jurisdiction to

consider appellee’s writ applications. Specifically, the State argued that because

appellee failed to show she was confined, restrained, or subject to any collateral

consequence as a result of her misdemeanor convictions, the trial court lacked

jurisdiction to address her writ applications. We disagree.

A. Standard of Review

In reviewing the trial court’s decision to grant or deny habeas corpus relief,

we view the facts in the light most favorable to the trial court’s ruling and uphold

that ruling absent an abuse of discretion. Ex parte Wheeler, 203 S.W.3d 317, 324

(Tex. Crim. App. 2006). A trial court abuses its discretion when it acts without

reference to any guiding rules or principles or when it acts arbitrarily or

unreasonably. Ex parte Ali, 368 S.W.3d 827, 830 (Tex. App.–Austin 2012, pet.

ref’d).

B. Applicable law

To prevail on a postconviction writ of habeas corpus, the applicant bears the

burden of proving, by a preponderance of the evidence, the facts that would entitle

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him to relief. Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002).

Habeas corpus is a remedy available to applicants who are “restrained in their

liberty.” See TEX. CODE CRIM. PROC. ANN. art. 11.01. A defendant convicted of a

misdemeanor offense may attack the validity of the conviction by way of habeas

corpus if she is either (1) confined or restrained as a result of a misdemeanor charge

or conviction or (2) is no longer confined but is subject to collateral legal

consequences resulting from the conviction. See TEX. CODE CRIM. PROC. ANN. art.

11.09; Ex parte Rinkevich, 222 S.W.3d 900, 902 (Tex. App.–Dallas 2007, no pet.).

The word “confined” refers not only to the “actual, corporeal and forcible detention

of a person,” but also to “any coercive measures by threats, menaces or the fear of

injury, whereby one person exercises a control over the person of another[] and

detains him within certain limits.” TEX. CODE CRIM. PROC. ANN. art. 11.21. The

statute uses the word “restraint” to mean “the kind of control which one person

exercises over another, not to confine him within certain limits, but to subject him

to the general authority and power of the person claiming such right.” TEX. CODE

CRIM. PROC. ANN. art. 11.22. Thus, the concept of “restraint” justifying the remedy

of habeas corpus is broader than actual physical restraint; it encompasses not only

confinement or physical custody, but also current and potential collateral

consequences resulting from a conviction. Ex parte Harrington, 310 S.W.3d 452,

457–58 (Tex. Crim. App. 2010). Therefore, a person who is not in actual physical

custody but is suffering some collateral consequence as a result of her conviction

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may seek habeas corpus relief. See id. (holding adverse consequences to applicant’s

present and future employment opportunities constitute confinement); State v.

Collazo, 264 S.W.3d 121, 126–27 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d)

(holding denial of opportunity to obtain a Texas peace officer license constitutes

confinement); Ex parte Davis, 748 S.W.2d 555, 557 (Tex. App.—Houston [1st Dist.]

1988, pet. ref’d) (holding denial of entry into the military constitutes confinement or

restraint).

C. Analysis

Appellee discharged her sentences in these cases approximately twenty-seven

years before she filed her writ of habeas corpus applications. Thus, she was required

to prove she was suffering from collateral consequences related to her convictions

to confer jurisdiction upon the trial court to consider the merits of her application.

See TEX. CODE CRIM. PROC. ANN. art. 11.23. In her writ application and at the

hearing on her writ application, appellee presented evidence that her misdemeanor

convictions would prevent her from sitting for the Texas Bar Examination.

Accordingly, appellee suffers potential future consequences arising from her 1996

misdemeanor convictions. We agree with the trial judge’s finding that appellee is

“confined” for purposes of Texas Code of Criminal Procedure article 11.09.

Therefore, we hold the trial court had jurisdiction to consider the merits of appellee’s

claim. Harrington, 310 S.W.3d at 457–58. We overrule the State’s first issue.

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III. THE DOCTRINE OF LACHES BARS APPELLEE’S RELIEF.

In its second issue, the State argues the trial court erred in granting appellee’s

applications for writs of habeas corpus because the doctrine of laches bars her

request for relief.1 Based on the length of the appellee’s delay in filing the

applications—twenty-seven years—and appellee’s failure to provide any reason for

her delay, and because the passage of twenty-seven years severely prejudices the

State in its ability to retry these cases, we agree the equitable doctrine of laches bars

appellee’s request for relief.

A. Applicable law

The equitable doctrine of laches refers to a party’s failure to assert a claim

which, along with the lapse of time and other circumstances causing prejudice to the

adverse party, bars the claim. Ex parte Perez, 398 S.W.3d 206, 210 (Tex. Crim. App.

2013). The trial court considers the totality of the circumstances, including all forms

of prejudice, when deciding whether to apply the doctrine of laches. Id. at 208. Since

the decision in Perez, the State need not make a particularized showing

1
Appellee argues the State elected not to bring the issue of laches before the trial court. We disagree.
The State asserted that the doctrine of laches applies to the facts of this case in both its briefing to the trial
court and to this Court. Moreover, the trial court rejected the State’s laches defense in its oral
pronouncement granting appellee’s requested relief.

Even if the State failed to raise the issue of laches, this Court could consider whether laches should bar
appellee’s habeas claims. The State does not waive a laches defense to an application for writ of habeas
corpus by failing to raise the defense in the habeas court. Ex parte Bowman, 447 S.W.3d 887, 888 (Tex.
Crim. App. 2014). The Court of Criminal Appeals reasoned that habeas is governed by the elements of
equity and fairness, and those elements require a consideration of unreasonable delay. Id.
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of prejudice. Id. at 215. Rather, the trial court may consider “anything that places the

State in a less favorable position, including prejudice to the State’s ability to retry a

defendant[.]” Id. “[T]he longer a case has been delayed, the more likely it is that the

reliability of a retrial has been compromised.” Id. at 218. This includes “the

diminished memories of trial participants and the diminished availability of the

State’s evidence, both of which may often be said to occur beyond five years after a

conviction becomes final.” Id. at 216.

It may be proper for a reviewing court to consider, among all relevant

circumstances, factors such as the length of the applicant’s delay in filing the

application, the reasons for the delay, and the degree and type of prejudice resulting

from the delay. Id. at 217. No single factor is necessary or sufficient. Id. Instead,

courts must “engage in a difficult and sensitive balancing process” that takes into

account the parties’ overall conduct. Id. 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.

Id. If prejudice to the State is shown, a court must then weigh that prejudice against

any equitable considerations that militate in favor of granting habeas relief. Id.

The degree of proof required is a “sliding scale.” Id. at 217. That is, the extent

of the prejudice the State must show bears an inverse relationship to the length of

the applicant’s delay. Id. The longer the delay, particularly when the delay exceeds

five years after conclusion of direct appeals, the less evidence the State must present

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to demonstrate prejudice. Id. at 215. “[D]elays of more than five years may generally

be considered unreasonable in the absence of any justification for the delay.” Id. at

216 n.12.

B. Analysis

Appellee’s habeas applications were filed more than twenty-seven years after

her pleas of guilty/nolo contendere to the prostitution charges. Yet, appellee failed

to provide any explanation for her delay in asserting that her pleas were involuntary

due to ineffective assistance of counsel. Further, appellee made no complaint about

counsel’s representation until she filed the habeas applications. And appellee’s

claims are not based on new facts or new laws that would excuse the twenty-seven-

year delay in raising these issues.

In its response to appellee’s applications, the State demonstrated that the

passage of twenty-seven years has severely prejudiced its ability to retry these cases.

The State provided evidence that the State’s and the trial court’s files were destroyed

pursuant to local retention policies for misdemeanor cases. See Ex parte Roberts,

494 S.W.3d 771, 776–77 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d)

(concluding State had been prejudiced by delay in seeking habeas relief in part

because, during the intervening time period, both State and trial counsel had “lost or

destroyed relevant evidence”). The docket sheets, plea bargain documents, and

judgments no longer exist, and there is no transcript of the plea hearing.

Additionally, even if appellee had identified the appointed attorney about whom she

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complains in her applications to the habeas court, it is unlikely that counsel would

have been able to recall the details of appellee’s pleas or have sufficient recollection

of the representation of appellee—twenty-seven years ago—to respond to appellee’s

ineffective assistance claims.

We hold the record does not support the grant of equitable relief in light of

applicant’s failure to assert her rights for twenty-seven years. See Perez, 445 S.W.3d

at 727. Under the above discussed case law, as applied to the record before this court,

we conclude the trial court abused its discretion in granting appellee’s requested

relief because the writ applications are barred by the equitable doctrine of laches.

Accordingly, we sustain the State’s second issue. Because this Court’s ruling on

appellee’s second issue is dispositive of this appeal, we need not address the State’s

third issue.

IV. CONCLUSION

Having found the writ applications are barred by the equitable doctrine of

laches, we reverse and render a judgment denying appellee’s applications for habeas

relief.

230897f.u05 /Erin A. Nowell/
230905f.u05 ERIN A. NOWELL
Do Not Publish JUSTICE
TEX. R. APP. P. 47.2(b)

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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

EX PARTE THE STATE OF On Appeal from the County Criminal
TEXAS Court No. 6, Dallas County, Texas
Trial Court Cause No. MC23A0366.
No. 05-23-00897-CR Opinion delivered by Justice Partida-
Kipness. Justices Nowell and Smith
participating.

We vacate this Court’s March 11, 2024 judgment and substitute this judgment.
Based on the Court’s opinion of this date, the judgment of the trial court is
REVERSED and we RENDER judgment denying appellee’s applications for
habeas relief.

Judgment entered this 2nd day of April, 2024.

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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

EX PARTE THE STATE OF On Appeal from the County Criminal
TEXAS Court No. 6, Dallas County, Texas
Trial Court Cause No. MC23A0351.
No. 05-23-00905-CR Opinion delivered by Justice Partida-
Kipness. Justices Nowell and Smith
participating.

Based on the Court’s opinion of this date, the judgment of the trial court is
REVERSED and we RENDER judgment denying appellee’s applications for
habeas relief.

Judgment entered this 2nd day of April, 2024.

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