458 S.W.3d 535
Tex. Crim. App.
2015

CONNER v. PEEL

No. unknown

Supreme Court of Texas

April 24, 2015

458 S.W.3d 535

Tex. 621, 307 S.W.2d 85, 88 (1957) (same for eight-year delay).

Under Rule 165a, there are two grounds for dismissal for want of prosecution. One is when a “party seeking affirmative relief [fails] to appear for any hearing or trial of which the party had notice.” Tex. R. Civ. P. 165a(1). In such cases, “[a] court shall dismiss ... unless there is good cause for the case to be maintained on the docket.” Id. The other is when a case is “not disposed of within [the] time standards promulgated by the Supreme Court.” TEX. R. CIV. P. 165a(2). And while Rule 165a(2) does not refer to Rule 165a(1)’s procedural requirements, including notice and a hearing, neither does it suggest a basis for deviating from those procedures.

The Peels’ failure to provide good cause for their nearly decade-long delay mandates dismissal under Rule 165a(2). Our Rules of Judicial Administration require district and statutory county courts to ensure, “so far as reasonably possible,” that civil cases in which a jury has been demanded, other than those arising under the Family Code, are brought to trial or final disposition within eighteen months of the appearance date. TEX. R. JUD. ADMIN. 6.1(b)(1). The Peels’ suit well exceeded this time frame. Absent any reasonable explanation for the delay, the trial court clearly abused its discretion by disregarding the conclusive presumption of abandonment. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (“[A] clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ.”); see also Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

Mandamus will issue to correct such an abuse of discretion when there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004). A trial court’s erroneous refusal to dismiss a case for want of prosecution cannot effectively be challenged on appeal. A defendant should not be required to incur the delay and expense of appeal to complain of delay in the trial court. To deny relief by mandamus permits the very delay dismissal is intended to prevent. In addition, the danger that a trial will be hampered by stale evidence and lost or clouded memories is particularly distinct after the delay in this case. See So. Pac. Transp. Co. v. Stoot, 530 S.W.2d 930, 931 (Tex. 1975) (“[P]ossibilities for error multiply rapidly as time elapses between the original fact and its judicial determination.”).

Accordingly, we conditionally grant the petition for writ of mandamus, and without hearing oral argument, direct the trial court to vacate its order denying Conner’s motion to dismiss filed October 24, 2013, and to dismiss this suit for want of prosecution. TEX. R. APP. P. 52.8(c). We are confident the trial court will promptly comply, and our writ will issue only if it does not.

EX PARTE Robert Lynn PRUETT, Applicant

NO. WR-62,099-04

Court of Criminal Appeals of Texas.

Delivered: April 24, 2015

458 S.W.3d 535

See also, 458 S.W.3d 537, 2015 WL 1883002.

David R. Dow, University of Texas Law Center, Houston, for Applicant.

Melinda Fletcher, Special Prosecution Unit, Amarillo, Lisa C. McMinn, State’s Attorney, Austin, for the State.

OPINION

Per curiam.

This is a subsequent application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071 § 5 and a motion to stay applicant’s execution.

In April 2002, a jury found applicant guilty of the offense of capital murder. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and the trial court, accordingly, set applicant’s punishment at death. This Court affirmed applicant’s conviction and sentence on direct appeal. Pruett v. State, No. AP-74,370, 2004 WL 3093232 (Tex.Crim.App. Sept. 22, 2004) (not designated for publication). Applicant filed his initial application for a writ of habeas corpus in the convicting court in February 2004, and this Court subsequently denied relief. Ex parte Pruett, 207 S.W.3d 767 (Tex.Crim.App.2005). Applicant filed a subsequent application for a writ of habeas corpus in the trial court on July 14, 2014. This Court determined that the subsequent application failed to satisfy the requirements of Article 11.071 § 5(a), and the Court dismissed it. Ex parte Pruett, No. WR-62,099-02 (Tex.Crim.App. Dec. 10, 2014) (not designated for publication). On April 1 and 8, 2015, applicant filed in this Court a motion for leave to file a petition for a writ of prohibition and a petition for a writ of prohibition. The Court denied applicant leave to file the writ of prohibition on April 20, 2015.

On April 17, 2015, applicant filed in the trial court his second subsequent application for a writ of habeas corpus. In that application, applicant asserted that he was entitled to relief under Texas Code of Criminal Procedure Article 11.073 because, had the results of DNA testing conducted pursuant to a Chapter 64 motion been available at the time of trial, it was likely that the jury would not have convicted him. Applicant cannot obtain relief on this claim.

In May 2013, applicant filed in the trial court a motion for post-conviction DNA and palm-print testing under Chapter 64 of the Texas Code of Criminal Procedure. The trial court granted that testing. However, the results of the testing were inconclusive, and the trial judge found that it was not reasonably probable that applicant would have been acquitted had the new results been available at trial. Applicant appealed that decision to this Court, and, after reviewing the issue de novo, we affirmed the judgment of the trial court. Pruett v. State, No. AP-77,037, 2014 WL 5422573 (Tex.Crim.App. Oct. 22, 2014) (not designated for publication), cert. denied, Pruett v. Texas, No. 14-8097, — U.S. —, 135 S.Ct. 1707, — L.Ed.2d —, 2015 WL 302598 (Mar. 30, 2015).

Article 11.073, by its language, applies to relevant scientific evidence that was not available to be offered by a convicted person at the convicted person’s trial. Article 11.073 provides that a court may grant relief on an application for a writ of habeas corpus if a person (1) files an application containing specific facts indicating that (A) relevant scientific evidence is currently available that was not available at the time of trial because it was not ascertainable, and (B) the scientific evidence would be admissible at trial, and (2) the court makes the above findings and also finds that, had the evidence been presented at trial, “on the preponderance of the evidence the person would not have been convicted.” Because both the trial court and this Court during the 2013 Chapter 64 proceedings found that the inconclusive DNA evidence did not support a reasonable probability that applicant would have been acquitted had that evidence been available at his trial, applicant is foreclosed from obtaining relief under Article 11.073. Therefore, applicant is denied relief in this subsequent writ application, and his motion to stay his execution is denied. No motions for rehearing will be entertained, and the clerk of this Court is instructed to issue mandate immediately.

Richardson, J., not participating.

EX PARTE Robert Lynn PRUETT, Applicant

NO. WR-62,099-05

Court of Criminal Appeals of Texas.

April 24, 2015

458 S.W.3d 537

See also, 458 S.W.3d 535, 2015 WL 1882765.