Opinion
NOS. WR-94 044-01 & WR-94 044-02
02-01-2023
EX PARTE Robert SALINAS, Jr., Applicant
Habeas corpus dismissed.
CONCURRING OPINION
Slaughter, J., filed a concurring opinion in which Richardson, J., joins. Over eleven years ago, on August 17, 2011, Applicant filed an application for a postconviction writ of habeas corpus in Harris County. After the trial court issued an order designating issues on October 7, 2011, no further action was taken. Applicant then filed a second application on July 25, 2013, in which he alleged the same issues raised in his first application. The trial court then entered an almost identical order designating issues on October 28, 2013. Again, no further action was taken until both habeas applications were belatedly forwarded to this Court on August 12, 2022. In the time that it has taken for the applications to be forwarded to this Court, Applicant's sentence has been discharged.
Nevertheless, this Court has now reviewed the applications and it has determined that Applicant's convictions were not "final" at the time that Applicant filed the applications, and the applications must therefore be dismissed. Although I agree with the Court's ultimate ruling dismissing the applications, given the extraordinary delay that has occurred, I believe it is appropriate to at least provide Applicant with some additional explanation. I also write to convey to Applicant that since the appellate mandate has issued, he may now file a new application for a writ of habeas corpus if he so chooses.
I. Background
On December 14, 1995, Applicant pleaded guilty, without a plea bargain in place, to the offense of aggravated sexual assault of a minor. The trial court then placed Applicant on deferred adjudication for ten years. After failing to comply with several of the terms and conditions of his community supervision, the State filed a motion to adjudicate guilt in 1998. However, Applicant was not arrested on the motion to adjudicate guilt until January of 2011. On August 3, 2011, Applicant pleaded "true" to the alleged violations and his deferred adjudication was revoked. The trial court then sentenced Applicant to ten years’ imprisonment.
On August 17, 2011, Applicant filed both a notice of appeal and an application for a postconviction writ of habeas corpus. The trial court entered an order designating issues on October 7, 2011, for the application for a writ of habeas corpus. For reasons that remain unknown, it appears that no further action was taken on the 2011 application. In the meantime, Applicant filed a pro se appeal to the Fourteenth Court of Appeals, which ultimately affirmed Applicant's revocation on February 26, 2013. Salinas v. State , No. 14-11-00747-CR, 2013 WL 709266 (Tex. App.—Houston [14th Dist.] Feb. 26, 2013) (mem. op., not designated for publication). Applicant then filed a pro se petition for discretionary review with this Court, but his petition was dismissed for being untimely filed on June 26, 2013.
On July 25, 2013, Applicant filed a second application for a writ of habeas corpus alleging almost identical grounds as those raised in his first application. In October 2013, the trial court issued almost the exact same order designating issues that it previously issued in 2011. Again, no further action was taken until both habeas applications were belatedly forwarded to this Court on August 12, 2022. As noted, in the time that it has taken for the applications to be forwarded, Applicant's sentence has been discharged. II. The applications must be dismissed because this Court lacks jurisdiction to consider the merits.
The only difference between the two orders is Applicant's address.
This Court does not have jurisdiction over an application for postconviction habeas relief until the felony conviction for which relief is sought becomes final. Ex parte Johnson , 12 S.W.3d 472, 473 (Tex. Crim. App. 2000). A direct appeal becomes final when the mandate from the court of appeals issues, and any motions for rehearing or petitions for discretionary review continue the direct appeal. Id. at n.2. Any applications filed before the conviction becomes final are not ripe and may not be considered by the Court. Id. at 473.
Here, Applicant's conviction became final on August 1, 2013, the date on which the Fourteenth Court of Appeals issued its mandate. Applicant filed his first application on August 17, 2011, and his second on July 25, 2013. Accordingly, the claims raised in his applications were not ripe. Because this Court lacks jurisdiction to consider the merits of Applicant's claims, the Court appropriately dismisses the applications without prejudice, and Applicant may now properly file an application for a writ of habeas corpus so that his claims may be considered on the merits. I note here that, given that Applicant's sentence has been discharged, if he chooses to re-file his habeas application, he must allege collateral consequences that he is still suffering as a result of the conviction. See TEX. CODE. CRIM. PROC. ART . 11.07, § 3(c) ; see also Ex parte Harrington , 310 S.W.3d 452, 458 (Tex. Crim. App. 2010).
III. The Delay
Turning to the matter of the extended delay in resolving Applicant's habeas applications, I wish to provide Applicant with a brief explanation for why it has taken this Court over a decade to rule on his case. It has recently come to this Court's attention that dozens, possibly hundreds, of applications for writs of habeas corpus filed in Harris County during the past several decades were not timely forwarded to this Court. It is only in the past several months that the long-delayed applications have finally been forwarded. No reason or justification has yet emerged for this breakdown in the Harris County District Clerk's office, which plainly violates the procedural rules governing resolution of habeas applications. The sheer volume of cases this Court has received with extraordinary delays is clear evidence of a systemic failure in Harris County's processes for handling postconviction habeas applications. Ultimately, I acknowledge that the situation is extremely troubling, completely unacceptable, and terribly unfair to the applicants who have waited for years for any response regarding their applications. I urge Harris County to properly investigate the reason for these "lost and found" writs and ensure that nothing like this ever happens again.
See Tex. R. App. P . 73.4(b)(5) (providing that, on the 181st day after the application is received by the State, the district court "shall forward the writ record to this Court unless the district court has received an extension of time from the Court of Criminal Appeals"); Id. R. 73.5 ("Within 180 days from the date of receipt of the application by the State, the convicting court shall resolve any issues that the court has timely designated for resolution.").
Nevertheless, while I acknowledge this significant problem in the handling of Applicant's postconviction writ applications, for the reasons already explained above, I agree with the Court that Applicant's applications must be dismissed without prejudice. Therefore, I join the Court's decision dismissing the applications.