Opinion
WR-94,921-01 WR-94,921-02
08-23-2023
EX PARTE TRAVIS O'BRIAN COLLINS, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NOS. A150475AR & A150478AR IN THE 128TH DISTRICT COURT FROM ORANGE COUNTY
ORDER
PER CURIAM
Applicant was convicted of two offenses of intoxication manslaughter with a deadly weapon and sentenced to 15 years' imprisonment. He 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 that he was denied his right to appeal because trial counsel failed to: timely file notices of appeal; inform the trial court that Applicant wanted to appeal; inform Applicant of his right to appeal; and file written notices of appeal. Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988); Jones v. State, 98 S.W.3d 700 (Tex. Crim. App. 2003). 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. In developing the record, the trial court may use any means set out in Article 11.07, § 3(d).
If a defendant decides to appeal his conviction, trial counsel rather than appellate counsel has the duty to ensure that written notice of appeal is filed with the trial court. Jones, 98 S.W.3d at 703.
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 whether Applicant was denied his right to appeal because trial counsel failed to timely file notices of appeal or inform Applicant of his right to appeal. 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.
Yeary, J., filed a concurring opinion.
Applicant was convicted in 2017 of two offenses of intoxication manslaughter with a deadly weapon. Punishment was assessed at fifteen years' imprisonment for each offense, and the two sentences were to run concurrently. In May of 2023, Applicant filed two applications for writs of habeas corpus in the county of conviction. Tex. Code Crim. Proc. art. 11.07. In his applications, he alleges that his trial counsel failed to timely file notices of appeal.
Today, the Court remands these applications 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 was convicted in 2017, but he did not file these writ applications until almost six 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.