Ex Parte Steptoe

• Citation: 132 S.W.3d 434
• Decision Date: 21 April 2004
• Docket Number: No. 74,939.,No. 74,938.,74,938.,74,939.
• Parties: EX PARTE JOHNNY STEPTOE, Applicant
• Court: Supreme Court of Texas

Page 1

132 S.W.3d 434

EX PARTE JOHNNY STEPTOE, Applicant

No. 74,938.

No. 74,939.

Court of Criminal Appeals of Texas, En banc.

Delivered April 21, 2004.

On Applications for a Writ of Habeas Corpus from Harris County.

Price, J., filed a concurring opinion. Cochran, J., filed a dissenting opinion, in which Keasler, J., joined. Keller, P.J., and Holcomb, J., dissented without opinion.

PER CURIAM.

These are post-conviction applications for writs of habeas corpus under Article 11.07 of the Code of Criminal Procedure. The applicant was convicted of the felony offenses of aggravated sexual assault and kidnapping, and punishment was assessed at imprisonment for fifty years and five years, respectively. He appealed, and his convictions were affirmed. See Steptoe v. State, Nos. 14-94-00200-CR and 14-94-00201-CR (Tex. App. — Houston [14th Dist.] 1996, no pet.).

The applicant claims that he was denied an opportunity to file petitions for discretionary review because his appellate attorney did not timely notify him that he could seek discretionary review pro se. The trial court found from the attorney's affidavit that counsel failed to specifically and timely notify the applicant that he could file pro se petitions for discretionary review by the Court of Criminal Appeals. The Applicant is entitled to relief. See Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997).

We grant the applicant relief in the form of leave to file petitions for discretionary review of the decisions of the Court of Appeals.

Time limits under the Rules of Appellate Procedure shall be calculated as if the Court of Appeals' decisions had been rendered on the day the mandate of this Court issues. Should the applicant desire to seek discretionary review, he must take affirmative steps to see that his petitions are filed in the Court of Appeals within thirty days of the day the mandate of this Court has issued.

The applicant's remaining claims are dismissed. See Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).

OPINION

Price, J., filed a concurring opinion.

I agree with the majority that we should allow the applicant to file an out-of-time petition for discretionary review. I write separately to explain why I think that the doctrine of laches should not apply to this case. The facts of this case are distinguishable from Ex parte Carrio¹ because the State did not argue that the applicant's claims should barred by the doctrine.

In Carrio, we held that the doctrine of laches may apply in an appropriate case. In that case, the State argued that, because of the appellant's fourteen-year delay in bringing his claims of ineffective assistance of counsel, the applicant should be barred from having the merits of those claims decided.² The State claimed that its ability to respond to the Carrio's claims was prejudiced by his failure to bring them in a reasonable amount of time.³

We cited with approval Rule 9(a) of the federal habeas corpus rules.⁴ We explained that Rule 9(a) required that the State show (1) "a particularized showing of prejudice," (2) "that the prejudice was caused by the petitioner having filed a late petition," and (3) "that the petitioner has not acted with reasonable diligence as a matter of law."⁵ Although we did not explicitly adopt these requirements, Carrio relies almost exclusively on Rule 9(a) and cases interpreting it.⁶

I would agree with the conclusion that the applicant waited too long to bring his claims in this case if the State had satisfied the three requirements of Rule 9(a). To the contrary, in the State's original response to the application, the State requested the trial court to designate the issue of ineffective assistance of counsel as an unresolved issue. After the trial court received the affidavit from appellate counsel, the State made proposed findings of fact, which the trial court signed. Those findings state that the applicant's appellate counsel notified the applicant that his conviction had been affirmed by the Court of Appeals but failed to notify the applicant that he had a right to file a pro se petition for discretionary review.

We should assume that the State was aware of Carrio and knew that it could raise the doctrine of laches if it was so inclined. In this case it is particularly true because the applicant's conviction was obtained in Harris County, the same county from which Carrio's conviction was obtained. But, the State never argued that the applicant's claim was so stale that the State was unable to respond to the merits of the claim. The State was clearly not prejudiced in its ability to respond.

And, because the State never argued that the doctrine should apply to this case, the trial court made no findings on this issue. In Carrio, we said that because the parties had not had the benefit of our opinion, the record was insufficient to rule on the State's claim that Carrio's claims were barred by the doctrine.⁷ We remanded the case for findings on that issue. Here we have no findings regarding the possible application of the doctrine, and the parties did have the benefit of our opinion in Carrio. We could not, on this record, find that the applicant's claim was barred by the doctrine of laches.

Also, I believe that the fact that the applicant could raise only one claim in his petition for discretionary review is of no moment. Generally we do not look behind the request for an out-of-time appeal or out-of-time petition for discretionary review to determine whether we should grant relief. The parties have not asked us to do so in this case. And, the fact that the applicant may not have his conviction successfully reversed on petition for discretionary review has no bearing on whether the doctrine of laches ought to apply in this case.

I do not think that the laches doctrine applies here, primarily because the State has not asked us to apply it and because the trial court made no findings on this issue. With these comments, I join the majority.

Cochran, J.

I respectfully dissent to granting applicant habeas corpus relief to file an out-of-time petition for discretionary review. Applicant has alleged that his appellate counsel was constitutionally ineffective because he failed to advise applicant of his right to file a petition for discretionary review when he timely notified applicant that the court of appeals had affirmed his convictions. I would deny relief based on the equitable doctrine of laches-otherwise known as "sleeping on your rights."¹

I.

Applicant was indicted for the 1992 aggravated sexual assault and kidnapping of his estranged wife. At his 1994 trial, the State presented evidence that applicant abducted his wife, forced her into a car, struck her, threatened to kill her, and sexually assaulted her in a park. Applicant's defense at trial was that, while he "scuffled" with his wife before leaving her home, he never hit or threatened her after they were in the car, and she consented to the sex. A jury found him guilty of both offenses and sentenced him to fifty years in prison on the aggravated sexual assault charge and five years in prison on the kidnapping charge. Applicant was sentenced on February 24, 1994-over ten years ago.

His attorney raised a single issue on appeal: the trial judge erred in failing to give a jury instruction on the lesser-included offense of misdemeanor assault in the aggravated sexual assault charge. Applicant did not challenge the kidnapping conviction. The Fourteenth Court of Appeals, in an unpublished opinion, held that applicant was not entitled to an instruction on misdemeanor assault because, according to his sworn testimony, he had not committed any offense at all. "Because Steptoe testified that the sex was consensual and that he never used force or placed complainant in fear of her life, there was no evidence to support the submission of misdemeanor assault."² The court of appeals' opinion was filed on February 29, 1996-over eight years ago.

On March 13, 1996, applicant's appointed appellate lawyer wrote applicant a letter:

Enclosed please find a copy of the Order from the appellate court. The judgments were affirmed, that is, the convictions will stand unless further litigation/appeals change that. As I am no longer your attorney, I will not attempt to counsel you or give you advice on whether or not you should attempt to take this further. BE ADVISED, HOWEVER, THAT THERE ARE VARIOUS TIMELINES AND DEADLINES WITHIN WHICH YOU MUST ACT, OTHERWISE YOUR CONVICTION WILL NO LONGER BE APPEALABLE.

If you have any questions, or if I can be of further assistance, do not hesitate to write to me at the address appearing on this letterhead.

There is nothing in this record to suggest that applicant ever responded to this letter with any questions, nor does applicant assert that he ever attempted to communicate with his former attorney during the next six years.

Instead, on September 30, 2002, applicant, like Lazarus rising from the dead, filed a writ of habeas corpus in the convicting court. He alleged that his appellate attorney provided ineffective assistance because, when counsel timely notified him of the result of his direct appeal, he did not also explicitly tell applicant that he could file a pro se petition for discretionary review.

In October and November, 2003, applicant's former counsel filed two separate affidavits. The first one stated that he had no independent memory of this client or the appeal he had handled some eight years earlier. Furthermore, both his computer and hard copy files from that era were now "non-existent." All he could testify to was his usual business practice and routine. After applicant sent his former attorney a copy of counsel's 1996 letter, that attorney wrote a supplemental affidavit stating, inter alia:

Said letter which notified [applicant] that there were timelines and deadlines applicable to any relief which he felt himself entitled to, but I did not elaborate, in that letter, on what...