Wafer, Leonard

• Court: Court of Criminal Appeals of Texas
• Decided: September 23, 2015
• Docket: WR-83,610-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-83,610-01

EX PARTE LEONARD WAFER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 31,328-CR IN THE 13TH DISTRICT COURT FROM NAVARRO COUNTY

Per curiam.

ORDER

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 a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated

kidnapping and sentenced to thirty years’ imprisonment. The Tenth Court of Appeals affirmed his

conviction. Wafer v. State, No. 10-07-00367-CR (Tex. App.—Waco Aug. 12, 2009) (not designated

for publication).

Applicant contends that trial counsel rendered ineffective assistance because he failed to

investigate or subpoena a motel clerk and to argue at punishment that Applicant voluntarily released

the complainant in a safe place. TEX . PENAL CODE § 20.04(d). 2

The State responded in part by raising laches, and the trial court concluded, among other

things, that the State was prejudiced by Applicant’s delay in filing this application. Although we

have broadened the definition of prejudice in laches determinations, we have not adopted a statute-

of-limitations period or recognized a “precise period” that triggers the application of laches. Ex

parte Perez, 398 S.W.3d 206, 216 n. 12 (Tex. Crim. App. 2013). As we wrote, “Though proof of

mere passage of time will continue to be insufficient to raise laches, we will weigh all relevant

equitable considerations in determining whether a long-delayed application for post-conviction relief

should be barred by laches.” Id. at 219.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). In these

circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294

(Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court

shall order trial counsel to respond to the above claims. The trial court may use any means set out

in TEX . CODE CRIM . PROC. art. 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 wishes to be represented by counsel, the trial court shall appoint an

attorney to represent him at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

The trial court shall make further findings of fact and conclusions of law as to whether

counsel’s conduct was deficient and Applicant was prejudiced. The trial court shall also make any

other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition

of Applicant’s claim for habeas corpus relief.

This application will be held in abeyance until the trial court has resolved the fact issues. The 3

issues shall be resolved within 90 days of this order. A supplemental transcript containing all

affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or

deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall

be forwarded to this Court within 120 days of the date of this order. Any extensions of time shall

be obtained from this Court.

Filed: September 23, 2015 Do not publish