Opinion
WR-92 905-01
09-15-2021
EX PARTE CORNELUS ISSAC JOHNSON, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1080969-A IN THE 185TH DISTRICT COURT FROM HARRIS COUNTY
ORDER
Per curiam.
A jury convicted Applicant of possession of a controlled substance and assessed a fifty-year prison sentence. The Fourteenth Court of Appeals affirmed the conviction. Johnson v. Texas, 14-07-00826-CR (Tex. App.-Austin del. Nov. 25, 2008). Applicant, through habeas counsel, 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; Tex.R.App.P. 73.4(b)(5). In the application, Applicant argues that trial counsel provided ineffective assistance. The trial court entered an order designating issues.
The habeas record contains no response from trial counsel or findings resolving the disputed factual issues. We remand this application to the trial court to complete its evidentiary investigation and make findings of fact and conclusions of law.
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, Cornelus Issac Johnson, was convicted of possession of a controlled substance and sentenced to fifty years' imprisonment. The Fourteenth Court of Appeals affirmed the conviction. Johnson v. Texas, 14-07-00826-CR (Tex. App.-Austin del. Nov. 25, 2008, no pet.) (mem. op., not designated for publication). Applicant filed this application for writ of habeas corpus in the county of conviction, alleging that his trial counsel was ineffective. Tex. Code Crim. Proc. art. 11.07.
Today, the Court remands this application to the trial court for an evidentiary hearing. I agree this application should be remanded, and so I join the Court's order doing so. But I write separately, as I have previously, to address my thoughts concerning the doctrine of laches and its possible application to this case. See Ex parte Sepeda, No. WR-92, 711-01, 2021 WL 2450089 (Tex Crim App June 16, 2021) (per curiam) (not designated for publication) (Yeary, J, concurring) (reviewing Ex parte Smith, 444 S.W.3d 661 (Tex Crim App 2014), and the principles that justify a court's sua sponte consideration of the doctrine of laches); Ex parte Robinson, No WR-92, 406-01, 2021 WL 1395906 (Tex Crim App Apr 14, 2021) (per curiam) (not designated for publication) (Yeary, J, concurring) (same).
The doctrine of laches ought to be considered in a case like this one. Applicant's trial occurred in 2007, but this application was not filed until approximately thirteen years later. In addition, the record is silent with regard to circumstances that may excuse Applicant's delay.
Consistent with this Court's precedent, the trial court may, sua sponte, give Applicant the opportunity to explain the reasons for the delay. It may also give the State 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. 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.