Opinion
WR-87,764-03
10-26-2022
EX PARTE HUMBERTO ROSALES CRUZ, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR-2827-14-H(2) IN THE 389TH DISTRICT COURT FROM HIDALGO COUNTY
Yeary, J., filed a concurring opinion in which Slaughter, J., joined.
ORDER
PER CURIAM.
Applicant entered an open guilty plea to attempted murder and was sentenced to twenty years' imprisonment. He 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.
Applicant contends, among other things, that his judgment lists an incorrect offense level and that his sentence is illegal. In support, Applicant alleges that he entered a plea bargain for the third degree felony offense of attempted murder under the influence of sudden passion, yet he was convicted of and received a sentence for a second degree felony. Applicant also contends that plea counsel was ineffective for failing to object to the erroneous conviction and illegal sentence. Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Pue, 522 S.W.3d 226 (Tex. Crim. App. 2018); Hill v. Lockhart, 474 U.S. 52 (1985). 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 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 first supplement the writ record with copies of the plea paperwork and the transcripts from Applicant's plea proceedings. The trial court shall then make findings of fact and conclusions of law as to whether Applicant's judgment of conviction for attempted murder lists the correct offense level and whether Applicant's sentence is illegal. The trial court shall make specific findings as to (1) the terms of the plea agreement; (2) whether Applicant's open plea of guilt was to a second or third degree felony; (3) whether Applicant was convicted of second or third degree felony; and (4) whether Applicant's imposed sentence falls within the applicable punishment range. The trial court shall also make findings of fact and conclusions of law as to whether trial counsel's performance was deficient and Applicant suffered prejudice. 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, in which Slaughter, J., joined.
Applicant was convicted in 2014 of attempted murder and sentenced to 20 years' imprisonment. Applicant did not appeal his conviction. In June 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 that his conviction is void and his sentence is illegal. In addition, he alleges that his trial counsel was ineffective for not objecting to the void conviction and illegal sentence.
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 trial occurred in 2014, but this writ application was not filed until almost eight 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 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. With these additional thoughts, I join the Court's order.