                                                                                WR-82,975-01
                                                                 COURT OF CRIMINAL APPEALS
                                                                                  AUSTIN, TEXAS
                                                               Transmitted 3/11/2015 5:35:35 PM
                                                                 Accepted 3/12/2015 9:03:03 AM
                                                                                   ABEL ACOSTA
                                 IN THE                                                    CLERK
                       COURT OF CRIMINAL APPEALS
                               OF TEXAS                              RECEIVED
                                                              COURT OF CRIMINAL APPEALS
                                                                     3/12/2015
EX PARTE                                §                       ABEL ACOSTA, CLERK
                                        §         WRIT NO. WR-82,975-01
JOSEPH LEE FLORES                       §

                APPLICANT’S MOTION TO REMAND
            THE CASE TO THE TRIAL COURT TO ALLOW
          HIM TO RESPOND TO THE STATE’S LACHES CLAIM

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      Joseph Lee Flores files Applicant’s Motion To Remand The Case To The

Trial Court To Allow Him To Respond To The State’s Laches Claim and would

show as follows:

                                        I.

      Applicant pled not guilty to attempted capital murder of a police officer in

cause number 44,556 and aggravated robbery in cause number 44,557 in the 434th

District Court of Fort Bend County before the Honorable James Shoemake. The

jury convicted him and assessed his punishment at life in prison for attempted

capital murder and 60 years for aggravated robbery on June 24, 2008.          Don

Bankston represented him at trial.

      The Fourteenth Court of Appeals affirmed applicant’s convictions in an

unpublished opinion issued on December 16, 2010.         The Court of Criminal

Appeals refused discretionary review on April 6, 2011. Flores v. State, Nos. 14-
08-00835-CR and 14-08-00848-CR, 2010 WL 5238580 (Tex. App.—Houston

[14th Dist.] Dec. 16, 2010, pet. ref’d) (not designated for publication). Bankston

also represented him on appeal.

      A pro se habeas corpus application was filed on June 27, 2012 (C.R. 34).

Applicant hired counsel, who filed Applicant’s Motion For The Court Not To Take

Action On The Pending Habeas Corpus Application Until Applicant Amends It on

August 13, 2012 (C.R. 168).

      Habeas counsel filed an amended application on October 15, 2014,

contending that trial counsel was ineffective at the guilt-innocence stage (C.R.

171). The State filed its original answer on October 31 (C.R. 228). The trial court

ordered Bankston to file an affidavit within 30 days on November 13 (C.R. 232-

33). He filed it on January 21, 2015 (C.R. 250). Applicant filed proposed findings

of fact and conclusions of law on February 6 (C.R. 254). The State filed an

amended answer on February 19, in which it raised the doctrine of laches and other

arguments for the first time (C.R. 277). It filed proposed findings and conclusions

on February 23 (C.R. 350). It requested the district clerk’s office to serve both

documents on applicant’s counsel by mail, which counsel received on February 26.

The trial court adopted the State’s proposed findings and conclusions on March 2

(C.R. 348-58). The district clerk transmitted the habeas record to this Court on

March 5.


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                                         II.

      Applicant was denied due process because the trial court did not allow

habeas counsel time to respond to the State’s laches claim before signing the

State’s proposed findings and conclusions. Habeas counsel received the State’s

amended answer from the district clerk’s office by mail on February 26, seven

days after it was filed. Counsel did not have time to respond to the laches claim

and the other arguments before the trial court signed the State’s findings and

conclusions on March 2. Due process requires that the case be remanded to allow

habeas counsel to respond.

                                         III.

      Applicant moves that the Court remand the case to the trial court with

instructions to give counsel time to respond to the State’s laches claim.

                                                    Respectfully submitted,

                                                    /S/ Joel Hayter
                                                    Joel Hayter
                                                    State Bar No. 24078644

                                                    1301 McKinney, Suite 3100
                                                    Houston, Texas 77010
                                                    (713) 951-9555
                                                    (713) 951-9854 (facsimile)
                                                    joelhayterlaw@gmail.com

                                                    Attorney for Applicant
                                                    JOSEPH LEE FLORES



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                        CERTIFICATE OF SERVICE

      I served a copy of this document on Jason Bennyhoff, assistant district

attorney, 301 Jackson Street, Room 101, Richmond, Texas 77469, by United States

mail, postage pre-paid, on March 11, 2015.


                                             /S/ Joel Hayter
                                             Joel Hayter




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