Opinion
WR-66,278-02
11-08-2023
EX PARTE BRANDON RUGE BURNETT AKA BRANDON RUIGE BURNETT, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 15-032-A IN THE 130TH DISTRICT COURT FROM MATAGORDA COUNTY
ORDER
PER CURIAM.
Applicant was convicted of aggravated assault with a deadly weapon and sentenced to forty years' imprisonment. The Thirteenth Court of Appeals affirmed his conviction. Burnett v. State, No. 13-15-00520-CR (Tex. App.-Corpus Christi-Edinburg Nov. 30, 2017) (not designated for publication). 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, among other things, that he rejected the State's favorable plea offer because trial counsel erroneously advised him that he would receive a lesser-included offense jury instruction for misdemeanor simple assault if he proceeded to trial. The trial court adopted the State's proposed findings of fact and conclusions of law recommending that relief be denied. However, trial counsel's affidavit is contradicted by the record-namely, by Applicant's former habeas counsel Norman Silverman's letter summarizing his conversation with trial counsel as well as by the clerk's record showing that trial counsel unsuccessfully requested a lesser-included offense instruction of simple assault at the charge conference during trial.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Argent, 393 S.W.3d 781, 784 (Tex. Crim. App. 2013). In these circumstances, additional facts are needed. The trial court is the appropriate forum for findings of fact. Tex. Code Crim. Proc. art. 11.07, § 3(d). The trial court shall hold a live evidentiary hearing and allow trial counsel to provide a supplemental response to Applicant's claim. It appears that Applicant is currently represented by counsel. Prior to the evidentiary hearing, the trial court 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 explicit credibility determinations related to trial counsel's responses, Applicant's allegations, and Norman Silverman's letter. The trial court shall then make supplemental findings of fact and conclusions of law as to whether trial counsel's performance was deficient and Applicant was prejudiced. The trial court shall also make specific, detailed findings regarding: (1) trial counsel's trial strategy regarding obtaining a lesser-included offense instruction of simple assault; (2) what advice or promises, if any, trial counsel gave Applicant regarding this instruction prior to Applicant's rejection of the State's last plea offer; and (3) if trial counsel gave bad advice or made improper promises to Applicant regarding this instruction, whether Applicant would have accepted the State's final plea offer. 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 supplemental 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.
Applicant was convicted in 2015 of aggravated assault with a deadly weapon and sentenced to forty years' imprisonment. The Thirteenth Court of Appeals affirmed his conviction in 2017. Burnett v. State, No. 13-15-00520 (Tex. App.-Corpus Christi-Edinburg Nov. 30, 2017) (mem. op., not designated for publication).
In May of 2023, 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 counsel-including that he would have accepted the State's plea offer but for his counsel's erroneous advice that, if he went to trial, he would receive a jury instruction for the lesser-included offense of misdemeanor assault.
Today, the Court remands this application to the convicting 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 convicting court has the authority to sua sponte consider the doctrine of laches); Ex parte Bazille, 663 S.W.3d 68 (Tex. Crim. App. 2022) (Yeary, J., concurring).
The doctrine of laches ought to be considered in a case like this one. Applicant's appeal was finalized in 2018, but he did not file this writ application until five years later. The record is also silent regarding circumstances that may excuse Applicant's delay, and at least some explanation for the long delay in filing should be provided.
"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)).
Consistent with this Court's precedent, the convicting court "may sua sponte consider and determine whether laches should bar relief." Smith, 444 S.W.3d at 667. If the convicting 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 convicting 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.
DISSENTING OPINION
Keller, P.J., filed a dissenting opinion in which Keel and Slaughter, JJ., joined.
Why are we remanding this case? The trial court has made findings of fact, including findings on the credibility of the witnesses, and recommends that relief be denied. But this Court remands the case to the trial court for a live hearing. This is an unusual and unnecessary step. We normally defer to the habeas court about whether a live hearing is necessary, and we normally defer to a habeas court's credibility determinations. Furthermore, the instructions in the remand order lead me to believe that the Court is under some misapprehensions about trial strategy, hearsay evidence, and deference to a habeas court's findings.
Most of the cases in which we order a live hearing involve a complaining witness who has recanted her trial testimony.
For instance, Applicant claims that he rejected a plea offer because trial counsel erroneously advised him that he would receive a lesser-included-offense instruction for misdemeanor simple assault if he went to trial. Trial counsel has denied that under oath, and the habeas court has found that trial counsel is credible. That should be the end of the matter. But the Court says counsel's affidavit is contradicted by the record-specifically by the fact that trial counsel requested a lesser-included instruction on simple assault and by a letter from Applicant's former habeas attorney. First, there is nothing contradictory about a trial attorney requesting a charge on a lesser offense even if his client may not be entitled to it. A trial court could decide to give the instruction out of an abundance of caution. Second, the letter from former habeas counsel is not notarized and it is hearsay. But more to the point, the habeas court was aware of the letter when the court recommended denying relief.
Applicant also alleges that counsel failed to request an instruction on deadly conduct. Counsel says that he did not think Applicant was entitled to such an instruction, but regardless, Applicant instructed him not to request it, claiming he was not guilty of any felony and he did not want to have a jury compromise. The habeas court found trial counsel credible.
I would deny relief on the findings of the habeas court. I respectfully dissent.