Opinion
WR-94,827-01
05-31-2023
EX PARTE MICHAEL POLLARD, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W10-60037-V(A) IN THE 292ND DISTRICT COURT FROM DALLAS COUNTY
ORDER
PER CURIAM.
Applicant pleaded guilty to aggravated sexual assault of a child in exchange for deferred adjudication community supervision. He was later adjudicated guilty and sentenced to thirty-five years' imprisonment. The Fifth Court of Appeals affirmed his conviction. Pollard v. State, No. 05-15-01196-CR (Tex. App. - Dallas December 19, 2016) (not designated for publication). 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 he received ineffective assistance of trial counsel at his original plea, and that his plea was involuntary as a result of that ineffectiveness. Applicant has alleged facts that, if true, might entitle him to relief. Hill v. Lockhart, 474 U.S. 52 (1985); Ex parte Argent, 393 S.W.3d 781 (Tex. Crim. App. 2013). 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. Specifically, trial counsel shall state what steps he took in investigating the case, whether Applicant identified favorable witnesses, and if so, whether counsel sought out and interviewed such witnesses. Trial counsel shall state whether he was aware that Applicant had MHMR issues, and if so whether he believed that such issues could have provided a defense to the charges, rendered Applicant incompetent to enter a plea, or prevented Applicant from being able to comply with the terms of deferred adjudication community supervision. Trial counsel shall state what advice, if any, he gave to Applicant regarding his options for resolving the case by way of a trial or a plea, and whether he advised Applicant to plead guilty in exchange for deferred adjudication community supervision.
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 ensure that the habeas record transmitted to this Court contains all documents filed by Applicant in support of his application. Specifically, on his application form Applicant refers to "attached" MHMR records, but no such records are included in the habeas record. If Applicant did in fact submit or attach documents or evidence in support of his application, the district clerk has a ministerial duty to include all such documents in the record forwarded to this Court. See Tex. Code Crim. Proc. art. 11.07, § 3(c) and (d); Tex.R.App.P. 73.4(b)(5).
The trial court shall make findings of fact and conclusions of law as to whether trial counsel's performance was deficient and Applicant would have insisted on a trial but for counsel's alleged deficient performance. 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 pled guilty to aggravated sexual assault of a child in exchange for deferred adjudication community supervision. In 2015, Applicant was adjudicated guilty and sentenced to thirty-five years' imprisonment. The Fifth Court of Appeals affirmed his conviction in 2016. Pollard v. State, No. 05-15-01196-CR, 2016 WL 7337154 (Tex. App.-Dallas December 19, 2016) (mem. op., not designated for publication). In March 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 that he received ineffective assistance of counsel and that his guilty plea was involuntary due to his counsel's ineffectiveness.
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 February of 2017, when the court of appeals issued its mandate. But Applicant did not file this writ application until five 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.