Opinion
WR-15,305-03
08-24-2022
EX PARTE MARK TWAIN SIMPSON, Applicant
DO NOT PUBLISH
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W13-56596-K(A) IN THE CRIMINAL DISTRICT COURT NO. 4 FROM DALLAS COUNTY
Yeary, J. filed a concurring opinion joined by Keller, P.J. and Slaughter, J.
ORDER
PER CURIAM.
Applicant was convicted of robbery and sentenced to twenty-five years' imprisonment. The Fifth Court of Appeals affirmed his conviction. Simpson v. State, No. 05-14-00618-CR (Tex. App.-Dallas April 20, 2015)(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 trial counsel was ineffective by convincing him to plead guilty without a bargain, by failing to properly advise him of the consequences of an open plea, by making him believe that the judge was going to grant him probation or sentence him to less than 25 years, by failing to honor his desire to proceed to a jury trial, by failing to secure a plea bargain for less than 25 years when the trial court granted a motion for new trial, and by failing to adequately defend him during the State's appeal on the issue of the granting of a new trial. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984). 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 trial counsel's performance was deficient and Applicant was prejudiced. 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 Keller, P.J., and Slaughter, J., joined.
Applicant was convicted in 2014 of Robbery and sentenced to 25 years' imprisonment. Applicant filed a motion for new trial, and the trial court granted him a new punishment trial, but the Dallas Court of Appeals reversed, reinstating his original sentence. State v. Simpson, No. 05-14-00618-CR (Tex. App.-Dallas Apr. 20, 2015) (mem. op., not designated for publication). This Court granted discretionary review, and in 2016, this Court affirmed the judgment of the Dallas Court of Appeals. State v. Simpson, 488 S.W.3d 318 (Tex. Crim. App. 2016).
In April 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 was constitutionally ineffective and that his sentence is illegal.
Today, the Court remands this application to the trial 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 trial 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. The appellate mandate for Applicant's conviction issued in 2016, but this writ application was not filed until 6 years later. The record is also silent regarding circumstances that may excuse Applicant's delay. 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 trial court "may sua sponte consider and determine whether laches should bar relief." Smith, 444 S.W.3d at 667. If the trial 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 trial 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.