Opinion
WR-95,251-01 WR-95,251-02 WR-95,251-03 WR-95,251-04 WR-95,251-05 WR-95,251-06 WR-95,251-07
12-06-2023
EX PARTE JUAN GARCIA, Applicant
Do not publish
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 970D04588-243-1; 20030D06184-243-1; 20040D04036-243-1; 970D06083-243-1; 980D05401-243-1; 20040D01098-243-1; 20040D04409-243-1 IN THE 243RD DISTRICT COURT FROM EL PASO COUNTY
ORDER
PER CURIAM.
Applicant pleaded guilty to six charges of theft, and one charge of false statement to obtain property/credit. Applicant was sentenced to two years' state jail on the theft, and two years' imprisonment in TDCJ on the false statement to obtain property/credit. Applicant did not appeal his convictions. 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 that trial counsel was ineffective because counsel gave him incorrect advice regarding the immigration consequences of his pleas. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984). 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). 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 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.
Trial counsel has submitted an affidavit; however, the trial court has not made findings of fact and conclusions of law. The trial court shall make 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 findings of fact and conclusions of law as to whether trial counsel's affidavit is credible. 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 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.
In 1999, Applicant pled guilty to three theft charges and was placed on deferred adjudication probation for ten years. The State subsequently charged Applicant with three additional theft offenses and one instance of false statement to obtain property/credit and moved to adjudicate Applicant's guilt. In 2005, pursuant to a plea agreement, Applicant pled true to violations of the terms of his deferred adjudication and pled guilty to the four new offenses. Applicant was sentenced to two years' confinement in the state jail for the six theft offenses and to two years' imprisonment for the false statement to obtain property/credit offense.
In October of 2023, Applicant filed these applications for writs of habeas corpus in the county of conviction. TEX. CODE CRIM. PROC. art. 11.07. In his applications, he alleges ineffective assistance of trial counsel-specifically, that trial counsel incorrectly advised him before his pleas in both 1999 and 2005 that pleading guilty would not affect his immigration status.
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 cases like these. Applicant pled guilty in 1999 and 2005, but he did not file these writ applications until twenty-four years after his 1999 pleas, eighteen years after his 2005 pleas, and six years after the U.S. Department of Homeland Security appears to have issued Applicant a Notice to Appear in removal proceedings. 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.