Opinion
WR-94,724-01 WR-94,724-02 WR-94,724-03
05-03-2023
EX PARTE HOWARD WEATHERALL JR., Applicant
Do not publish
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 25249, 25250, & 25437 IN THE 354TH DISTRICT COURT FROM HUNT COUNTY
ORDER
Per curiam.
In separate indictments, the State charged Applicant with aggravated assault (the -01), unlawful possession of a firearm (the -02), and possession of fictitious or counterfeit insurance document (the -03). In a single trial, a jury convicted Applicant of aggravated assault and unlawful possession of a firearm. The trial court assessed concurrent 40-year habitual-felon prison sentences. Applicant pled guilty to the counterfeit document charge as a habitual felon for another concurrent 40-year prison term. The appellate court affirmed the assault and firearm judgments, and Applicant did not appeal the insurance document judgment. See Weatherall v. State, Nos. 06-09-00095-CR & 06-09-00114-CR (Tex. App.-Texarkana del. Oct. 20, 2009). Applicant filed three applications for writs of habeas corpus in the county of conviction, and the district clerk forwarded them to this Court. See Tex. Code Crim. Proc. art. 11.07.
In the three habeas applications, Applicant challenges the lawfulness of the three convictions. He raises various claims of ineffective assistance of trial and appellate counsel. Strickland v. Washington, 466 U.S. 668 (1984). There is no response from trial or appellate counsel in the record provided to this Court, and the trial court has not entered findings resolving the disputed factual issues.
Accordingly, the records 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 as to whether trial and/or appellate counsels' performance was deficient and Applicant was prejudiced. 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 2009 of aggravated assault, unlawful possession of a firearm, and possession of a fictitious or counterfeit insurance document. He was sentenced to forty years' imprisonment for each conviction, and the three sentences were ordered to run concurrently. The Sixth Court of Appeals affirmed his aggravated assault and unlawful possession of a firearm convictions in 2009. Weatherall v. State, Nos. 06-09-00095-CR & 06-09-00114-CR, 2009 WL 3349039 & 2009 WL 3349159 (Tex. App.-Texarkana Oct. 20, 2009). Applicant did not appeal his conviction for possession of a fictitious or counterfeit insurance document. In February of 2023, Applicant filed three separate applications for writs of habeas corpus to challenge each conviction. Tex. Code Crim. Proc. art. 11.07. In his applications, he alleges ineffective assistance of trial and appellate counsel.
Today, the Court remands these applications 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 convictions were final in 2009, but he did not file these writ applications until thirteen 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.