Summary
rejecting laches defense after five-year filing delay; notwithstanding counsel's death, State failed to show that prejudice to its ability to respond to ineffective assistance claim was caused by delay
Summary of this case from Ex parte PerezOpinion
Nos. WR-66,090-01, WR-66,090-02
Filed: November 15, 2006. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus, Cause No. W97-77571-M W97-77572-M in the 194th, District Courtfrom Dallas County.
ORDER
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court these applications for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex.Crim.App. 1967). Applicant was convicted of two counts of aggravated robbery and sentenced to thirty years' imprisonment. The Sixth Court of Appeals affirmed his convictions. Scott v. State, Nos. 06-98-104-CR and 06-98-105-CR (Tex.App.-Texarkana, delivered February 1, 1999, no pet.) Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his conviction had been affirmed. The trial court has found that counsel is now deceased, and concluded that laches bars Applicant from obtaining relief in this cause. However, the court has made no findings of fact reflecting that Applicant's delay in filing this application is the cause for the State being unable to respond to Applicant's factual allegations. See Ex parte Carrio, 992 S.W.2d 486 (Tex.Crim.App. 1999). Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex.Crim.App. 2000). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex.Crim.App. 1997), the trial court is the appropriate forum for findings of fact. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id. If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04. The trial court shall make findings of fact as to when counsel died and, if counsel died before or shortly after the appeals were affirmed, whether any other attorney assumed counsel's pending cases and timely informed Applicant that his convictions had been affirmed. If counsel was still practicing law at the time the appeals were affirmed, the court shall determine whether counsel notified Applicant that the appeals were affirmed and that he could file pro se petitions for discretionary review. Alternatively, the court may enter findings as to why any of these facts cannot now be determined, and whether Applicant's delay in filing this application was the cause for the inability to determine those facts. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief. This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.