Ex Parte Richard Mark Bowman

• Court: Court of Appeals of Texas
• Decided: January 27, 2015
• Docket: 01-13-01045-CR
• Status: Published

Opinion

Order issued January 27, 2015.

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-13-01045-CR ——————————— EX PARTE RICHARD MARK BOWMAN, Appellant

On Appeal from the County Criminal Court at Law No. 2 Harris County, Texas Trial Court Case No. 1921607

ORDER OF ABATEMENT

Appellant, Richard Mark Bowman, challenged the trial court’s order

denying his application for a writ of habeas corpus. See TEX. CODE CRIM. PROC.

ANN. art. 11.072, § 8 (Vernon Supp. 2014). In his appeal to this Court, appellant

argued that the trial court had erred in denying him relief from a judgment of

conviction of the misdemeanor offense of driving while intoxicated because his trial counsel had rendered him ineffective assistance. Ex parte Bowman, 444

S.W.3d 272, 274 (Tex. App.—Houston [1st Dist.]), rev’d, 447 S.W.3d 887 (Tex.

Crim. App. 2014). For the first time on appeal, the State contended that the

doctrine of laches barred appellant’s requested habeas relief. Id. at 277–78.

Noting that “the State did not plead or otherwise assert the doctrine of laches

in the trial court as a bar to appellant’s requested habeas relief” and, thus, “did not

afford the trial court the opportunity to address and determine the fact question of

laches,” we held that the State had “waived the defense.” Id. at 278–79. Further

holding, based on the trial court’s findings of fact, that appellant’s trial counsel had

rendered him ineffective assistance, we reversed the trial court’s order and granted

appellant habeas relief. Id. at 282.

After the State filed a petition for discretionary review, the Texas Court of

Criminal Appeals vacated this Court’s judgment, and it remanded the case to this

Court. Ex parte Bowman, 447 S.W.3d 887, 889 (Tex. Crim. App. 2014). The

court agreed that “‘[l]aches is a question of fact’” and “in Art. 11.072 cases, ‘the

trial judge is the sole finder of fact.’” Id. at 888 (quoting Ex parte Bowman, 444

S.W.3d at 278–79). And it noted that “there is nothing in the trial record, other

than the length of the delay, from which to ascertain whether laches has been

proved.” Id. Regardless, the court held that this Court had erred in holding that

the State had waived the laches issue by not actually presenting it to the trial court.

2 Id. Nevertheless, it has remanded the case back to this Court “to remand to the

trial court for a hearing on the laches issue.” Id. at 888–89 (citing Ex parte Smith

444 S.W.3d 661 (Tex. Crim. App. 2014); Ex parte Perez, 398 S.W.3d 206 (Tex.

Crim. App. 2013)).

Accordingly, we abate this appeal and remand this case to the trial court to

conduct an evidentiary hearing on the laches issue and for the trial court to enter

supplemental findings of fact and conclusions of law. The hearing shall be

conducted within 60 days of the date of this order. A supplemental clerk’s record

containing the supplemental findings of fact and conclusions of law, and a

supplemental reporter’s record of the hearing are to be filed with the Clerk of this

Court no later than 90 days from the date of this order.

This appeal is abated, treated as a closed case, and removed from this

Court’s active docket.

It is so ORDERED.

PER CURIAM

Panel consists of Justices Jennings, Higley, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).