Opinion
WR-88 008-03
12-08-2021
EX PARTE JUAN ENRIQUE SARQUIS JR., Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2013-D CR-02588-B IN THE 138TH DISTRICT COURT FROM CAMERON COUNTY
ORDER
Per curiam.
Applicant was convicted of aggravated assault with a deadly weapon and sentenced to twelve years' imprisonment. Applicant did not appeal his conviction. 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.
In a single issue, Applicant contends that his plea was involuntary because trial counsel failed to advise him at the time he entered his guilty plea that the State was recommending twelve years' imprisonment, not three years' imprisonment. Applicant has alleged facts that, if true, might entitle him to relief. Hill v. Lockhart, 474 U.S. 52 (1985); Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999). 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). According to the State Bar, trial counsel is deceased. If so, the trial court shall determine whether trial counsel's file is available for review. In developing the record further, the trial court may use any means set out in Article 11.07, § 3(d). It appears that Applicant is represented by counsel. If the trial court elects to hold a hearing, it shall determine if Applicant is represented by counsel, and if not, 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. See TEX. CODE CRIM. PROC. art. 26.04.
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 shall also make specific findings as to whether the plea agreement was for three or twelve years' imprisonment. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's claim.
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.
CONCURRING OPINION
YEARY, J., filed a concurring opinion in which SLAUGHTER, J., joined.
Applicant was convicted in 2014 of aggravated assault with a deadly weapon and sentenced to twelve years' imprisonment. Applicant filed an application for writ of habeas corpus in the county of conviction in 2021, alleging his plea was involuntary. 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 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 Sepeda, No. WR-92, 711-01, 2021 WL 2450089 (Tex. Crim. App. June 16, 2021) (per curiam) (not designated for publication) (Yeary, J, concurring) (reviewing Ex parte Smith's holding and the principles that justify a trial court's sua sponte authority to consider laches).
The doctrine of laches ought to be considered in a case like this one. Applicant's trial occurred in 2014, but this writ application was not filed using the proper 11.07 form until almost seven years later, and nearly two years after trial counsel had passed away. Applicant may very well have an explanation for the overall delay, but neither he nor any of his retained habeas counsel have adequately explained it yet.
"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)).
Applicant previously filed his -01 and -02 writ applications in 2018 and 2021, respectively, but both were dismissed as non-compliant for failing to use the proper form. TEX. R. APP. P. 73.1. For each prior application, the Court notified both Applicant and his then-retained habeas counsel by mail (dated Feb. 7, 2018, and Feb. 24, 2021, respectively) explaining in what way each application was non-compliant.
Consistent with this Court's precedent, the trial court may, sua sponte, give Applicant the opportunity to explain the reasons for the delay. 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.