Opinion
WR-95,478-01
03-13-2024
EX PARTE DESRICK VAUGHN WARREN, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. B150191AR IN THE 163RD DISTRICT COURT FROM ORANGE COUNTY
ORDER
PER CURIAM
Applicant pleaded guilty and was convicted of engaging in organized criminal activity and sentenced to 45 years' imprisonment. His direct appeal was dismissed. Warren v. State, No. 09-16-00483-CR (Tex. App. - Beaumont, January 25, 2017). 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 his guilty plea was involuntary because defense counsel misadvised him concerning his parole eligibility. See Ex parte Moussazadeh, 361 S.W.3d 684, 691-92 (Tex. Crim. App. 2012). Applicant also contends that he was improperly convicted because the indictment failed to charge him with engaging in organized criminal activity under Texas Penal Code § 71.02(a)(5). See Hughitt v. State, 583 S.W.3d 623, 627, 631 (Tex. Crim. App. 2019). Applicant has alleged facts that, if true, might entitle him to relief. Brady v. United States, 397 U.S. 742 (1970). 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.
The trial court shall make findings of fact and conclusions of law as to whether Applicant's plea was involuntary and whether Applicant's conviction was improper. 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). The clerk shall also forward transcripts of the 2016 plea proceedings. Any extensions of time must be requested by the trial court and obtained from this Court.
Yeary, J., filed a concurring opinion.
Applicant pled guilty and was convicted of engaging in organized criminal activity, a first-degree felony, in 2016. Tex. Penal Code § 71.02(a)(5). He was sentenced to forty-five years' imprisonment. The Ninth Court of Appeals dismissed his appeal in 2017. Warren v. State, No. 09-16-00483-CR, 2017 WL 392078 (Tex. App.-Beaumont Jan. 25, 2017) (mem. op., not designated for publication).
In January of 2024, Applicant filed an application for writ of habeas corpus in the county of conviction. Tex. Code Crim. Proc. art. 11.07. In his application Applicant alleges, among other claims, that his plea of guilty was involuntary on the ground that his trial counsel misadvised him about his parole eligibility.
As the Court's order notes, "Applicant also contends that he was improperly convicted because the indictment failed to charge him with engaging in organized criminal activity under Texas Penal Code § 71.02(a)(5)." Order at 1-2. To the extent this is a complaint of defective indictment, Applicant has forfeited such a claim. Tex. Code Crim. Proc. art. 1.14(b); Studer v. State, 799 S.W.2d 263, 268 (Tex. Crim. App. 1990) ("Art. 1.14(b) requires, among other things, that substance exceptions be raised pre-trial or otherwise the accused has forfeited his right to raise the objection on appeal or by collateral attack."). If the Applicant's claim of indictment error is the basis of the Court's remand order, then I fail to understand why remand on that ground is appropriate. However, because I agree that remand is appropriate for further fact development with respect to Applicant's ineffective assistance of trial counsel claim, I concur.
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 2017, but he did not file this writ application until seven 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.