Opinion
WR-93 465-01 WR-93 465-02
02-09-2022
EX PARTE STEVEN MARLIN SCHADE, Applicant
Do not publish
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. CF-14-01377A AND CF-14-01378A IN THE 76TH DISTRICT COURT FROM CAMP COUNTY
ORDER
PER CURIAM.
Applicant pleaded guilty to two charges of aggravated robbery and was sentenced to twenty years' imprisonment for each charge, to run concurrently. The Sixth Court of Appeals dismissed his appeal for want of jurisdiction. Schade v. State, Nos. 06-15-00097-CR and 06-15-00098-CR (Tex. App. - Texarkana August 25, 2015) (not designated for publication). Applicant filed these applications for writs of habeas corpus in the county of conviction, and the district clerk forwarded them to this Court. See Tex. Code Crim. Proc. art. 11.07.
Applicant contends, among other things, that his trial counsel was ineffective for failing to request discovery of exculpatory evidence, failing to object to language in the indictments alleging a deadly weapon, to-wit: a firearm when Applicant alleges that the police recovered only an air gun which is not a firearm, failing to point out that the air gun used by Applicant was broken and was therefore not a deadly weapon, and allowing Applicant to plead guilty to the offenses as alleged in the indictments
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. Specifically, trial counsel shall state whether he filed a motion for discovery of exculpatory evidence, whether he saw or received a copy of the arrest report, whether he was aware that the police had recovered an air gun, and whether Applicant advised him that he had used an air gun that was broken during the offenses. If trial counsel was aware that it was an air gun that was used during the offenses, trial counsel shall state why he did not object to the language in the indictment alleging a firearm. If trial counsel was advised that the air gun in question was broken, trial counsel shall state why he did not object to the deadly weapon element of the offenses but allowed Applicant to plead guilty to both charges as alleged in the indictments. Trial counsel shall also state what advice, if any, he gave to Applicant with regard to his options of pleading guilty or disputing the charges at trial.
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.
CONCURRING OPINION
YEARY, J.
Applicant pled guilty in March of 2014 to two charges of aggravated robbery and was sentenced to two concurrent terms of twenty years' imprisonment. The Sixth Court of Appeals dismissed his appeal in 2015 for want of jurisdiction. Schade v. State, Nos. 06-15-00097-CR and 06-15-00098-CR (Tex. App.-Texarkana Aug. 25, 2015) (not designated for publication). Almost eight years later, Applicant filed these applications for writ of habeas corpus in the county of conviction in December of 2021, alleging his trial counsel was ineffective. Tex. Code Crim. Proc. art. 11.07. And today, the Court remands this application to the trial court to further develop the record.
I agree that 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 guilty pleas occurred in 2014, but these writ applications were not filed until almost eight years later. In addition, the record is silent concerning what circumstances might excuse Applicant's delay.
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 delayed 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.
"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)).
With these additional thoughts, I join the Court's order.