Opinion
WR-93 207-06
06-15-2022
EX PARTE JASON MICHAEL BADYRKA, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1129647-B IN THE 182ND DISTRICT COURT FROM HARRIS COUNTY
ORDER
PER CURIAM
Applicant pleaded guilty to robbery and two other charges, in exchange for three concurrent eight-year sentenes. The First Court of Appeals dismissed his appeal for want of jurisdiction. Badyrka v. State, No. 01-21-00339-CR (Tex. App. - Houston [1st Dist.] November 16, 2021) (not designated for publication). Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07.
Applicant contends that his plea was involuntary because trial counsel failed to investigate, failed to obtain discovery that would have disproved an element of the offense, and erroneously advised Applicant regarding the nature of the charges and the consequences of his plea. Specifically, Applicant alleges that trial counsel advised him that he would finish his obligations in 2015, and did not advise him that the collateral effect of his guilty plea to robbery would be the loss of more than eight years of street time credit on his prior 20-year sentences. Applicant has alleged facts that, if true, might entitle him to relief. Hill v. Lockhart, 474 U.S. 52 (1985); Ex parte Argent, 393 S.W.3d 781 (Tex. Crim. App. 2013). Accordingly, the record should be developed. The trial court is the appropriate forum for findings of fact. Tex. Code Crim. Proc. art. 11.07, § 3(d). The trial court shall order trial counsel to respond to Applicant's claims. In developing the record, the trial court may use any means set out in Article 11.07, § 3(d). If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent him at the hearing. See Tex. Code Crim. Proc. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel's name.
The trial court shall make findings of fact and conclusions of law as to whether trial counsel's performance was deficient and Applicant would have insisted on a trial but for counsel's alleged deficient performance. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's claims.
The trial court shall make findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court's findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See Tex. R. App. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court.
Yeary, J., filed a concurring opinion, in which Slaughter, J., joined.
Applicant pled guilty in 2007 to robbery and two other charges, and he received three concurrent eight-year sentences. These sentences were discharged in 2016. The First Court of Appeals dismissed his appeal in 2021. Badyrka v. State, No. 01-21-00339-CR (Tex. App.-Houston [1st Dist.] Nov. 16, 2021) (mem. op., not designated for publication).
In March 2022, Applicant filed an application for writ of habeas corpus in the county of conviction. Tex. Code Crim. Proc. art. 11.07. In his application, he alleges that his plea was involuntary, and that his trial counsel was ineffective, resulting in loss of street time credit.
Today, the Court remands this application to the trial court to further develop the record. I join the Court's remand order But I write separately to address my thoughts concerning the doctrine of laches and its possible application to this case See Ex parte Smith, 444 S.W.3d 661 (Tex Crim App 2014) (holding a trial court has the authority to sua sponte consider the doctrine of laches); Ex parte Bazille, ___ S.W.3d___, No WR-89, 851-02, 2022 WL 108348 (Tex Crim App Jan 12, 2022) (Yeary, J, concurring).
The doctrine of laches ought to be considered in a case like this one. Applicant pled guilty in 2007 and discharged his sentences in 2016, but this writ application was not filed until over fourteen years after his plea and over five years after discharge of his sentences, respectively.The record is also silent regarding circumstances that may excuse Applicant's delay, and at least some explanation for the long delay in filing should be provided.
"Our revised approach will permit courts to more broadly consider 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." Ex parte Perez, 398 S.W.3d 206, 216 (Tex. Crim. App. 2013) (citing Ex parte Steptoe, 132 S.W.3d 434, 437-39 (Tex. Crim. App. 2004) (Cochran, J., dissenting)).
Consistent with this Court's precedent, the trial court "may sua sponte consider and determine whether laches should bar relief." Smith, 444 S.W.3d at 667. If the trial court does so, it must give Applicant the opportunity to explain the reasons for the delay and give the State's prosecutors and/or former counsel for Applicant an opportunity to state whether Applicant's delay has caused any prejudice to their ability to defend against Applicant's claims. Id. at 670. And ultimately, the trial court may include findings of fact and conclusions of law concerning the doctrine of laches in its response to this Court's remand order.
With these additional thoughts, I join the Court's order.