Opinion
WR-94,602-01
03-29-2023
EX PARTE BUCK DUANA SETTLE AKA BUCK DUANE SETTLE, JR, Applicant
DO NOT PUBLISH
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR-3577-06-C IN THE 139TH DISTRICT COURT FROM HIDALGO COUNTY
Yeary, J. filed a concurring opinion joined by Slaughter, J.
ORDER
PER CURIAM.
Applicant was convicted of murder and sentenced to forty-seven years' imprisonment. Applicant did not file a direct appeal. 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 that was denied due process in his right to an appeal because the trial court failed to inform him of his right to appeal and his trial counsel failed to properly advise Applicant of his appellate rights. Applicant has alleged facts that, if true, might entitle to relief. Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988); Jones v. State, 98 S.W.3d 700 (Tex. Crim. App. 2003). 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.
If a defendant decides to appeal his conviction, trial counsel rather than appellate counsel has the duty to ensure that written notice of appeal is filed with the trial court. Jones, 98 S.W.3d at 703. 1 "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)).
The trial court shall make findings of fact and conclusions of law as to whether Applicant was denied right to an appeal because trial counsel failed to advise Applicant of his right to appeal. 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 2008 of murder and sentenced to forty-seven years' imprisonment. Applicant did not appeal his conviction. In January 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 both the trial court and his trial counsel failed to properly inform him of his right to an appeal. Applicant contends that because of these failures, he was denied due process and is entitled to an out-of-time appeal.
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, ___ 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 2008, but Applicant did not file this writ application until fifteen 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.
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.