Kemp, Donnell Duane

• Court: Court of Criminal Appeals of Texas
• Decided: October 19, 2022
• Docket: WR-94,200-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-94,200-01

EX PARTE DONNELL DUANE KEMP, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1144601-A IN THE 262ND DISTRICT COURT FROM HARRIS COUNTY

Per curiam.

ORDER

Applicant was convicted of attempted capital murder and sentenced to life imprisonment.

The Fourteenth Court of Appeals affirmed his conviction. Kemp v. State, No. 14-08-00780-CR

(Tex. App.—Houston [14th Dist.] Dec. 3, 2009) (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 that trial counsel was ineffective for various reasons. 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 2

in Article 11.07, § 3(d). It appears that Applicant is represented by counsel. 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.

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.

Although there is no explanation in the record for Applicant’s delay in seeking relief, the

State does not argue that it has been prejudiced by Applicant’s delay. Nevertheless, this Court has

held that a trial court may sua sponte consider whether the doctrine of laches should bar relief. See

Ex parte Smith, 444 S.W.3d 661 (Tex. Crim. App. 2014). The trial court may consider and

determine whether Applicant’s claims should be barred by laches. 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

an opportunity to state whether Applicant’s delay has caused any prejudice to their ability to defend

against 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.

Filed: October 19, 2022 Do not publish