EX PARTE EDDIE LEON NELSON (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-36,989-02

EX PARTE EDDIE LEON NELSON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 17,015-C IN THE 278TH DISTRICT COURT

FROM WALKER COUNTY

Per curiam.

O R D E R

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of the offense of possession of a deadly weapon in a penal institution, and punishment was assessed at fifteen (15) years' confinement. No direct appeal was taken.

Applicant contends that his plea of guilty was involuntary because defense counsel and the trial court advised him that he would receive a sentence of not more than ten years if he pleaded guilty. Finding that Applicant had alleged facts which if true might entitle him to relief, this Court remanded the application for additional information.

In compliance with this Court's first remand order, the trial court conducted an evidentiary hearing and entered findings of fact and conclusions of law. At that hearing, the trial court determined that the State was barred by Rule 94 of the Texas Rules of Civil Procedure from arguing laches and therefore disallowed the State's evidence and argument in support of its assertion of laches. The trial court found that prior to entering his plea, Applicant was advised that the range of punishment was not more than ten years or less than two years, and that the preponderance of the evidence indicated that the plea bargain was for a term of years not to exceed ten.

Noting that the trial court should not have disallowed the State's evidence and argument in support of its assertion of laches, this Court entered a second remand order to obtain additional information and provide the parties with an opportunity to discuss whether Applicant's claim was barred by the doctrine of laches. Ex parte Carrio, 992 S.W.2d 486 (Tex. Crim. App. 1999). The trial court responded by adopting and forwarding both the Applicant's and the State's proposed supplemental findings of fact and conclusions of law, and as a result, the trial court recommended both granting relief and denying relief. Neither Applicant's nor the State's proposed findings discussed whether the habeas application was barred by laches, although the State's findings mentioned that the State's ability to respond had been prejudiced as a result of the delay.

Noting that the trial court had not forwarded the information ordered by the second remand order and that its recommendation following the second remand was both to grant and deny relief, this Court entered a third remand order. In response, the trial court held a hearing and again found that the State's assertion of laches was barred by its failure to plead laches in advance of the hearing. Nevertheless the State's attorney did argue laches. The trial court has now entered findings of fact and conclusions of law recommending that relief be granted. The court finds that the State did not plead laches and that the evidence does not show any particularized prejudice to the State's ability to respond to Applicant's allegations.

Whether the State's failure to plead laches in advance of the hearing operated to bar the State from presenting evidence and argument in support of its laches claim at the hearing is a question of law, to be reviewed de novo. This Court has already informed the habeas court that the State's failure to plead laches in advance of the hearing did not operate to bar the State from presenting evidence and argument in support of its assertion of laches at the hearing.

The habeas court's finding that the evidence does not show any particularized prejudice to the State's ability to respond is a finding of fact that should be followed if it is supported by the record. Ex parte Brandley, 781 S.W.2d 886 (Tex. Crim. App. 1989). Here, however, this finding is not supported by the record. The reporter's record and defense counsel's records are no longer available. Those records would show whether the court's customary practice was followed in Applicant's case and whether Applicant was correctly informed of the terms of the plea bargain. In short, the evidence that would be most responsive to Applicant's claim has been lost as a result of Applicant's delay in bringing the claim.

Habeas corpus relief is denied.

Filed: September 10, 2008

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