Opinion
WR-94,287-01
11-23-2022
EX PARTE EDWARD FRANK WILLIAMS, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W13-24143-I(A) IN THE NO. 2 DISTRICT COURT FROM DALLAS COUNTY
ORDER
PER CURIAM
Applicant was convicted of aggravated robbery with a deadly weapon and sentenced to 75 years' imprisonment. The Fifth Court of Appeals affirmed his conviction. Williams v. State, No. 05-15-00470-CR (Tex. App.-Dallas, May 12, 2016). 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 defense counsel Brian Wirskye did not convey a 30-year plea offer when it was made on April 26, 2013. Instead, Applicant did not learn of this plea offer until over a year later, after Wirskye had been replaced by defense counsel Richard Franklin. Applicant asserts that he would have accepted the plea offer if he had known about it before it was withdrawn. Applicant has alleged facts that, if true, might entitle him to relief. Brady v. United States, 397 U.S. 742 (1970). 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). We are mindful that the record has been developed to some extent, in that it contains copies of defense counsels' 2015 letters to the State Bar and an excerpt of a 2014 hearing record. There are some inconsistencies between these materials. The trial court may order trial counsel and/or the prosecutors to respond to Applicant's claim, if appropriate.
In developing the record, 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 Applicant's plea was involuntary. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's claim.
If appropriate, the trial court may consider and determine whether Applicant's claims should be barred by laches. 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 an opportunity to state whether Applicant's delay has caused any prejudice to their ability to defend against 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 2014 of aggravated robbery with a deadly weapon and sentenced to seventy-five years' imprisonment. The Fifth Court of Appeals affirmed his conviction in 2016. Williams v. State, No. 05-15-00470-CR, 2016 WL 2907803 (Tex. App.-Dallas, May 12, 2016). In September of 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 ineffective assistance of trial counsel for failure to inform him of a favorable plea offer.
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's appeal was finalized in 2016, but this writ application was not filed until six years later. 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.
"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.