Opinion
WR-95,103-01
10-18-2023
EX PARTE WALTER LAMONTE MOORE, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W-1251041-A IN THE CRIMINAL DISTRICT COURT NO. 4 FROM DALLAS COUNTY
ORDER
PER CURIAM
A jury convicted Applicant of aggravated assault and sentenced him to thirty-eight years' imprisonment. The Fifth Court of Appeals affirmed his conviction. Moore v. State, No. 05-13-00862-CR (Tex. App.-Dallas del. Oct. 8, 2014). 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 alleges, inter alia, that his trial and appellate counsel provided ineffective assistance. There is no response from either lawyer or trial court findings in the habeas record. 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). The trial court shall order trial and appellate 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 make findings of fact and conclusions of law addressing Applicant's claims and resolving the disputed factual issues. The trial court may make any other findings and conclusions that it deems appropriate.
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 2013 of aggravated assault and sentenced to thirty-eight years' imprisonment. The Fifth Court of Appeals affirmed his conviction in 2014. Moore v. State, No. 05-13-00862-CR, 2014 WL 5035449 (Tex. App.-Dallas Oct. 8, 2014, pet. ref'd) (not designated for publication).
In July 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 five grounds of error, including ineffective assistance of trial and appellate counsel.
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 2015, when this Court refused his petition for discretionary review. But he did not file this writ application until 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 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.