Ex parte Allen

1

Ex parte Philip Clinton Allen

No. 03-21-00311-CR

Court of Appeals of Texas, Third District, Austin

June 15, 2022

Do Not Publish

From the 207th District Court of Comal County No. 2010-110-001 the Honorable Jack H. Robison, Judge Presiding

Before Justices Goodwin, Baker, and Triana

MEMORANDUM OPINION

THOMAS J. BAKER, JUSTICE

Phillip Clinton Allen filed an application for a writ of habeas corpus seeking an out of time appeal from his prior conviction. See Tex. Code Crim. Proc. art. 11.072. The trial court denied Allen's application. Allen appeals the trial court's ruling. We will affirm the trial court's order.

BACKGROUND

In 2010, a grand jury charged Allen with the offense of online solicitation of a minor for conduct occurring on or around December 2009. See Tex. Penal Code § 33.021(c).^[1]The trial occurred over a year later in April 2011. During the trial, Mary Smith (pseudonym) testified that she took cheerleading lessons from Allen starting when she was thirteen years old, that Allen had multiple conversations with her about sex and about having sex with her, that they exchanged text messages that were sexual in nature, that Allen asked her to take and show him photos of her naked, that she took photos of her breasts and vagina for him to look at, that they engaged in phone sex that he "rub[ed] his penis on my butt" when they were at a cheerleading competition, and that Allen offered to take her to a hotel to have sex. Copies of text messages between Allen and Smith were admitted into evidence including one in which Allen said that he could pick her up and take her to a hotel.

At trial, a recording of Allen's interview by the police was admitted into evidence. On the recording, Allen admitted that he told Smith it would be nice to see naked photos of her, that he later saw pictures of Smith's breasts and vagina, that he tried to teach her how to masturbate, that they had graphic conversations about sex, and that they discussed him wanting to perform oral sex on her and engage in other sexual acts. After considering the evidence presented, the jury sentenced Allen to six years' imprisonment but also recommended that Allen be placed on community supervision for the offense, and the trial court ordered that Allen be placed on community supervision for ten years. See id. § 12.33.

Almost ten years later in January 2021, Allen filed an application for writ of habeas corpus seeking an out-of-time appeal. See Tex. Code Crim. Proc. art. 11.072. In his habeas application, Allen asserted that his trial attorney's health began deteriorating shortly after the conviction, that his trial attorney passed away approximately four months after his conviction, that his trial attorney did not inform him of his appellate rights or the impending deadline for filing a notice of appeal, that he would have appealed his conviction if he had been informed of that option, and that he was told by an associate of his trial attorney that the deadline for filing an appeal had run. Regarding arguments he would have presented on appeal, Allen stated that he would have appealed "the inclusion of [the] anti-defensive provision language" in the jury charge that he argues negated "the essential element of intent." Relatedly, Allen argued that his trial attorney's failure to inform him of his appellate rights and impending deadlines deprived him of the opportunity to present his appellate complaint and constituted ineffective assistance of counsel, entitling him to an out-of-time appeal.

As support for his request for habeas relief, Allen attached to his habeas application his own affidavit and an unsigned and unsworn affidavit purportedly from his trial attorney's associate, David Wyrick. In his own affidavit, Allen stated that his trial attorney "did not discuss my appellate rights or deadlines . . . prior to, or after my conviction"; that his trial attorney "did not discuss any appellate issues or errors"; that he last spoke with his trial attorney on the day of trial; and that he learned that his trial attorney passed away a few months after the trial concluded. Further, Allen asserted that if he "had been informed of [his] appellate rights and deadlines, [he] would have hired appellate counsel and filed a notice of appeal within the deadline."

The unsigned affidavit attributed to Wyrick stated that in June 2011 Allen's trial attorney enlisted his help with several criminal defense cases, including another case involving Allen. The document described Allen's trial attorney as "very fatigued, inattentive, impulsive, cavalier, short fused[, ] and irritable" and as having "a limited understanding of criminal procedure and criminal defense." Further, the document stated that Allen's trial attorney abruptly died a few months after Allen's trial. Regarding Allen, the document related that by the time Wyrick learned of Allen's conviction, "his thirty day deadline to file a notice of intent to appeal the conviction . . . had expired." When describing Wyrick's interaction with Allen, the document explained that Allen related that he did not commit the offense for which he had been convicted, that Wyrick told Allen a few months after Allen's conviction that the deadline for filing an appeal had passed, that Allen was unaware of a deadline for filing an appeal, and that he was unaware that his trial attorney had been sick. Regarding a conversation Wyrick had with Allen's trial counsel, the document explained that Allen's trial counsel communicated that he and Allen both "felt proud and fortunate that . . . Allen had been" placed on community supervision given the nature of the offense.

After Allen filed his application, the State filed a response summarizing the evidence presented at trial indicating that Allen committed the alleged offense, including Smith's testimony, text exchanges between Allen and Smith, evidence regarding photographs of Smith naked that Allen viewed, and the interview in which Allen made admissions about the sexual nature of his relationship with Smith. Further, the State asserted that the relief that Allen requested was barred by the doctrine of laches, highlighting that Allen did not provide any explanation for his delay in seeking an out-of-time appeal. Further, the State argued that the trial court should deny the requested relief unless Allen filed another affidavit or presented some other evidence explaining the delay. Allen did not submit any additional evidence.

Several weeks later and without convening a hearing, the trial court denied Allen's application after considering the application, the accompanying documents, the State's response, and the record from Allen's trial. The trial court issued findings of fact and conclusions of law, including the following:

1. Applicant has not shown circumstances justifying his delay in seeking relief, and his delay was not reasonable.

2. The State of Texas has been prejudiced by Applicant's lengthy delay in filing his claim regarding his long-standing conviction. Witnesses involved in the instant offense likely no longer have an independent or complete recollection of the events, including the surrounding circumstances; indeed, Applicant made much of the complainant's memory issues at trial nearly a decade ago, and Applicant himself claimed memory issues in his interview.

3. Though Applicant admits he was aware of his appellate deadline nearly a decade ago, he sat on his alleged claim for nearly twice the five-year period the Court of Criminal Appeals has indicated can implicate laches.

4. The equitable doctrine of laches bars relief in this case.

5. In any event, Applicant and his claims are not credible.

Allen appeals the trial court's denial of his application for writ of habeas corpus.

STANDARD OF REVIEW AND GOVERNING LAW

An individual convicted of a felony or misdemeanor may seek habeas "relief from an order or judgment of conviction ordering community supervision." Tex. Code Crim. Proc art. 11.072, § 1. When a person files a writ application, he "must be, or have been, on community supervision, and the application must challenge the legal validity of . . . the conviction for which or order in which community supervision was imposed" or "the conditions of community supervision." Id. art. 11.072, § 2(b). When making its determination, the trial court "may order affidavits, depositions, interrogatories, or a hearing, and may rely on [its] personal recollection." Id. art. 11.072, § 6(b); see also id. art. 11.072, § 6(c) (setting out when hearing may be held "[i]f a hearing is ordered"). Appellate courts have construed this language to mean that no evidentiary hearing is required under article 11.072 when the issues can be resolved without one. See Ex parte Salazar, 510 S.W.3d 619, 627 (Tex. App.-El Paso 2016, pet. ref'd); Ex parte Arjona, 402 S.W.3d 312, 319 (Tex. App.-Beaumont 2013, no pet.); see Ex parte Gonzalez, 323 S.W.3d 557, 558 (Tex. App.-Waco 2010, pet. ref'd); Ex parte Cummins, 169 S.W.3d 752, 757 (Tex. App.-Fort Worth 2005, no pet.).

Appellate courts review a trial court's ruling on an application for writ of habeas corpus under an abuse-of-discretion standard of review. Ex parte Zantos-Cuebas, 429 S.W.3d 83, 87 (Tex. App.-Houston [1st Dist.] 2014, no pet.). Similarly, appellate courts review a trial court's decision not to convene a hearing under article 11.072 for an abuse of discretion. Ex parte Salazar, 510 S.W.3d at 626-27. "A trial court abuses its discretion when its ruling is arbitrary or unreasonable." Gaytan v State, 331 S.W.3d 218, 223 (Tex. App.-Austin 2011, pet. ref'd). But a trial court does not abuse its discretion if its "ruling was within the zone of reasonable disagreement." Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. ...