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).
3