Opinion
WR-89 851-02
01-12-2022
EX PARTE SIMON BAZILLE, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1261252-B IN THE 180TH DISTRICT COURT FROM HARRIS COUNTY.
ORDER
Per curiam.
Applicant was convicted of aggravated robbery with a deadly weapon and sentenced to thirty years' imprisonment. The First Court of Appeals affirmed his conviction. Bazille v. State, No. 01-11-00647-CR (Tex. App. - Houston [1st. Dist.], Feb. 20, 2014). 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 trial counsel was ineffective for the following: overriding his decision to testify on his own behalf in both the guilt/innocence and punishment phases, and his election to have the jury assess punishment rather than the court; failing to file a motion to allow him to testify free from impeachment of prior conviction evidence; failing to file a motion to suppress the in-court identification of Applicant; and failing to investigate and present mitigation witnesses. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984). 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 claim. 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 was prejudiced. 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 was convicted in 2011 of aggravated robbery with a deadly weapon and sentenced to thirty years' imprisonment. The First Court of Appeals affirmed his conviction in 2014. Bazille v. State, No. 01-11-00647-CR (Tex. App.-Houston [1st Dist] Feb. 20, 2014) (mem. op., not designated for publication). Ten years later, in 2021, Applicant filed an application for writ of habeas corpus in the county of conviction alleging his trial counsel was ineffective. Tex. Code Crim. Proc. art. 11.07.
Today, the Court remands this application to the trial court to further develop the record. I agree this application should be remanded, and so I join the Court's order doing so. But I write separately, as I have previously, to address my thoughts concerning the doctrine of laches and its possible application to this case. See e.g., Ex parte Sepeda, No. WR-92, 711-01, 2021 WL 2450089 (Tex. Crim App June 16, 2021) (per curiam) (not designated for publication) (Yeary, J, concurring) (highlighting the Court's opinion in Ex parte Smith, 444 S.W.3d 661 (Tex. Crim. App. 2014), which both: (1) held that a trial court has the authority to sua sponte consider the doctrine of laches, and (2) expounded on the principles that justify sua sponte consideration of that doctrine).
The doctrine of laches ought to be considered in a case like this one. Applicant's trial occurred in 2011, but this writ application was not filed until over ten years later. In addition, the record is silent regarding circumstances that may excuse Applicant's delay.
See Ex parte Perez, 398 S.W.3d 206, 216 (Tex. Crim. App. 2013) (explaining that, "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."). The Court in Perez also cited Ex parte Steptoe, 132 S.W.3d 434, 437-39 (Tex. Crim. App. 2004) (Cochran, J., dissenting), in which Judge Cochran had previously advocated for the adoption of a "rebuttable presumption of prejudice" to the State for applications filed more than five years after conviction, in light of the social and administrative costs associated with retrial.
Consistent with this Court's precedent, the trial court may, sua sponte, give Applicant the opportunity to explain the reasons for the delay. Ex parte Smith, 444 S.W.3d at 667. It may also 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. 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.