Summary
stating that, in spite of applicant's 16–year delay in seeking post-conviction relief, no laches; although prosecutors and judge from applicant's trial were deceased, habeas record “does not contain anything to directly support assertion of prejudice”
Summary of this case from Ex parte PerezOpinion
No. WR-71,327-01
Delivered: February 4, 2009. DO NOT PUBLISH.
On Application for A Writ of Habeas Corpus, Cause No. F10734-A in the 115th Judicial District Court from Marion 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 this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex.Crim.App. 1967). Applicant was convicted of aggravated robbery and sentenced to sixty-five years' imprisonment. The Sixth Court of appeals affirmed the judgment of the trial court. Waites v. State, No. 06-92-00090-CR (Tex.App.-Texarkana, March 9, 1993). Applicant contends, inter alia, that he was denied the effective assistance of counsel on direct appeal. Applicant's retained trial counsel filed a motion for new trial and notice of appeal, but did not request a statement of facts. The court of appeals directed the trial court to hold a hearing to determine whether Applicant needed to have new counsel appointed for appeal. The trial court conducted a hearing, at which evidence was presented indicating that Applicant was indigent, and could not afford to pay for the preparation of a statement of facts or for continued representation by retained counsel. During the hearing, trial counsel indicated that he would be willing to represent Applicant on direct appeal if the trial court appointed him to do so, and would be willing to submit the appeal on the transcript alone, without a statement of facts. Applicant apparently consented to this procedure, because he had confidence in his attorney and had no money with which to pay for the statement of facts. The trial court appointed trial counsel to represent Applicant on direct appeal. Thereafter, appellate counsel never filed an appellate brief. The Sixth Court of Appeals, noting that neither a statement of facts nor an appellate brief were submitted, reviewed the record and found no error, issuing a short opinion affirming the judgment of the trial court on March 9, 1993. The State responds that Applicant's claim should be barred by the doctrine of laches, because the passage of approximately sixteen years since the appellate mandate issued has prejudiced the State's ability to respond to Applicant's allegations. The State points out that the prosecutors and judge from Applicant's trial are deceased, and that the court reporter has retired. The State did send a letter to Applicant's trial and appellate counsel on December 3, 2008 requesting an affidavit. However, because of the deadlines for the processing of habeas writs when the trial court has not entered an order designating issues, the writ was forwarded to this Court on January 6, 2009 without such affidavit. Delay alone is no bar to habeas relief. In order to prevail on a laches claim respondent must make a particularized showing of prejudice in its ability to respond to the allegations in the petition. Ex parte Carrio, 992 S.W.2d 486, 488 (Tex.Crim.App. 1999). Although the State asserts that it will be difficult to address Applicant's habeas claims because of the passage of time, the record does not contain anything to directly support this assertion of prejudice. 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. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall provide counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel on appeal. 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 why appellate counsel, after having been appointed to represent Applicant on direct appeal, did not request preparation of a statement of facts, or file an appellate brief in this case. The trial court shall make findings as to whether Applicant was denied his right to a meaningful appeal because Applicant's counsel failed to request preparation of a statement of facts or file a brief. The trial court shall also make findings as to whether the State has met its initial burden to (1) make a particularized showing of prejudice, (2) show that the prejudice was caused by Applicant having filed a late petition, and (3) show that Applicant has not acted with reasonable diligence as a matter of law. If the trial court finds that the State has met this initial burden, the trial court shall afford Applicant an opportunity to demonstrate either that the State actually has not been prejudiced or that Applicant's delay in pursuing his claims is justified. 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.