Bazille, Simon ( 2022 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-89,851-02
EX PARTE SIMON BAZILLE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1261252-B IN THE 180TH DISTRICT COURT
FROM HARRIS COUNTY
YEARY, J., filed a concurring opinion in which SLAUGHTER, J., joined.
CONCURRING OPINION
Applicant was convicted in 2011 of aggravated robbery with a deadly weapon and
sentenced to thirty years’ imprisonment. The First Court of Appeals affirmed his conviction
in 2014. Bazille v. State, No. 01-11-00647-CR (Tex. App.—Houston [1st Dist.] Feb. 20,
2014) (mem. op., not designated for publication). Ten years later, in 2021, Applicant filed
an application for writ of habeas corpus in the county of conviction alleging his trial
counsel was ineffective. TEX. CODE CRIM. PROC. art. 11.07.
Today, the Court remands this application to the trial court to further develop the
record. I agree this application should be remanded, and so I join the Court’s order doing
so. But I write separately, as I have previously, to address my thoughts concerning the
doctrine of laches and its possible application to this case. See e.g., Ex parte Sepeda, No.
BAZILLE — 2
WR-92,711-01, 2021 WL 2450089 (Tex. Crim. App. June 16, 2021) (per curiam) (not
designated for publication) (Yeary, J., concurring) (highlighting the Court’s opinion in Ex
parte Smith, 444 S.W.3d 661 (Tex. Crim. App. 2014), which both: (1) held that a trial court
has the authority to sua sponte consider the doctrine of laches, and (2) expounded on the
principles that justify sua sponte consideration of that doctrine).
The doctrine of laches ought to be considered in a case like this one. 1 Applicant’s
trial occurred in 2011, but this writ application was not filed until over ten years later. In
addition, the record is silent regarding circumstances that may excuse Applicant’s delay.
Consistent with this Court’s precedent, the trial court may, sua sponte, give
Applicant the opportunity to explain the reasons for the delay. Ex parte Smith, 444 S.W.3d
at 667. It may also give the State’s prosecutors and/or former counsel for Applicant an
opportunity to state whether Applicant’s delay has caused any prejudice to their ability to
defend against Applicant’s claims. And ultimately, the trial court may include findings of
fact and conclusions of law concerning the doctrine of laches in its response to this Court’s
remand order.
With these additional thoughts, I join the Court’s order.
FILED: January 12, 2022
PUBLISH
1
See Ex parte Perez, 398 S.W.3d 206, 216 (Tex. Crim. App. 2013) (explaining that, “Our
revised approach will permit courts to more broadly consider the diminished memories of trial
participants and the diminished availability of the State’s evidence, both of which may often be
said to occur beyond five years after a conviction becomes final.”). The Court in Perez also cited
Ex parte Steptoe, 132 S.W.3d 434, 437–39 (Tex. Crim. App. 2004) (Cochran, J., dissenting), in
which Judge Cochran had previously advocated for the adoption of a “rebuttable presumption of
prejudice” to the State for applications filed more than five years after conviction, in light of the
social and administrative costs associated with retrial.