Ex Parte Richard Mark Bowman, 01-13-01045-CR

Background

Bowman was convicted of DWI in 2005, received probated sentence, and was discharged from probation in 2007; his direct appeal was dismissed in 2006.
In 2013 Bowman was arrested for a second DWI; only after that arrest he filed an Article 11.072 habeas application challenging his 2005 counsel’s performance.
The First Court of Appeals initially granted habeas relief in 2014, finding trial counsel ineffective for not using HPD officer Lindsey’s payroll records; that opinion was withdrawn after rehearing and later vacated by the Court of Criminal Appeals.
The Court of Criminal Appeals held laches applies to Article 11.072 habeas proceedings and remanded for a laches hearing, finding the State did not waive laches argument.
On remand the trial court held a hearing and found Bowman’s multi-year delay (over seven years) was unreasonable and inexcusable (filed only after the second arrest) and that the State was prejudiced by the delay; the trial court denied equitable relief.
The State also argued (and the trial court found) that trial counsel’s strategic choices were within accepted practice, that payroll evidence likely would have been inadmissible under Tex. R. Evid. 608(b), and that Bowman suffered no Strickland prejudice from counsel’s conduct.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether laches applies to Article 11.072 and whether the State waived it	Bowman argued the State waived laches by not raising it at the original 11.072 hearing	State argued laches applies to all habeas matters and is not waived where the State prevailed at the hearing	CCA: laches applies to Art. 11.072 and State’s laches argument was not waived; remanded for laches hearing; trial court later found laches barred relief
Whether Bowman’s delay in seeking habeas relief was unreasonable/inexcusable	Bowman said counsel post-2005 advised there were no grounds, explaining delay	State showed Bowman waited until second DWI arrest to seek relief and that attorney-review in 2005 did not show universal knowledge of Lindsey payroll issue	Trial court: delay (>5–7 years) was unreasonable/inexcusable (filed only after second arrest); laches applies
Whether the State was prejudiced by the delay (laches prejudice)	Bowman implicitly argued delay did not prejudice the State	State argued loss of memory, fading witness recollection, and retrial reliability after >10 years constitutes prejudice under Perez’s common-law laches standard	Trial court: prejudice shown (memory lapses, retrial impaired); supports laches bar
Whether trial counsel was ineffective for not obtaining/using officer payroll records and whether omission was prejudicial	Bowman argued all reasonably competent lawyers would have obtained payroll records and that counsel’s failure was deficient and prejudicial under Strickland	State argued only some lawyers used payroll records in 2005, counsel elicited overtime testimony, strategic choice was reasonable, payroll evidence likely inadmissible under Rule 608(b), so no Strickland prejudice	Trial court: counsel’s performance within reasonable professional norms; payroll documentary use likely inadmissible; no prejudice—ineffective-assistance claim not a basis for relief

Key Cases Cited

Ex parte Bowman, 444 S.W.3d 272 (Tex. App. —Houston [1st Dist.] 2014) (First Court of Appeals opinion on rehearing)
Ex parte Bowman, 447 S.W.3d 887 (Tex. Crim. App. 2014) (Court of Criminal Appeals: laches applies to Art. 11.072 and remand for laches hearing)
Ex parte Smith, 444 S.W.3d 661 (Tex. Crim. App. 2014) (equity applies to habeas; laches recognized)
Ex parte Perez, 398 S.W.3d 206 (Tex. Crim. App. 2013) (adopted common-law laches standard for habeas; sliding-scale prejudice vs. delay)
Ex parte Carrio, 992 S.W.2d 486 (Tex. Crim. App. 1999) (laches may bar habeas relief when State harmed by delay)
Ex parte Garcia, 353 S.W.3d 785 (Tex. Crim. App. 2011) (standard of review for habeas-court rulings)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong ineffective assistance of counsel test)