Opinion
WR-77,649-02
06-07-2023
EX PARTE BRANDON PAUL VILLAREAL, Applicant
Do not publish
On Application for a Writ of Habeas Corpus Cause No. 2009-038B in the 421st District Court from Caldwell County
ORDER
PER CURIAM.
Applicant was convicted of four counts of aggravated robbery and sentenced to fifty-five years' imprisonment on each count. The Third Court of Appeals affirmed his conviction. Villareal v. State, 348 S.W.3d 365 (Tex. App.-Austin 2011). 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.
On September 12, 2022, the trial court entered an order designating issues. The district clerk properly forwarded this application to this Court under Texas Rule of Appellate Procedure 73.4(b)(5). However, the application was forwarded before the trial court made findings of fact and conclusions of law. 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 was convicted in 2010 of four counts of aggravated robbery. He was sentenced to fifty-five years' imprisonment on each count, with each sentence to run concurrently. The Third Court of Appeals affirmed his conviction in 2011. Villareal v. State, 348 S.W.3d 365 (Tex. App.-Austin 2011). In August of 2022, 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 his trial counsel provided ineffective assistance of 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 January of 2012, when the court of appeals issued its mandate. Applicant did not file this writ application until more than ten 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.