Opinion
WR-94,371-01
12-14-2022
EX PARTE CORY ALEXANDER ROSS, Applicant
DO NOT PUBLISH
On Application for a Writ of Habeas Corpus Cause No. W12657-1 in the 355th District Court From Hood County
Yeary, J., filed a concurring opinion, in which Slaughter, J., joined.
Applicant was convicted in 2014 of possession of a controlled substance and sentenced to twelve months' imprisonment. Applicant did not appeal his conviction. In October of 2022, Applicant filed an application for writ of habeas corpus in the county of conviction. Tex. Code Crim. Proc. art. 11.07. In his application, he alleges that he was denied his right to an appeal because his counsel failed to timely file a notice of appeal.
Today, the Court remands this application to the trial court to further develop the record. I join the Court's remand order But I write separately to address my thoughts concerning the doctrine of laches and its possible application to this case See Ex parte Smith, 444 S.W.3d 661, 663 (Tex Crim App 2014) (holding a trial court has the authority to sua sponte consider the doctrine of laches); Ex parte Bazille, __S.W.3d__, No WR-89,851-02, 2022 WL 108348, at *1 (Tex Crim App Jan 12, 2022) (Yeary, J, concurring).
The doctrine of laches ought to be considered in a case like this one. Applicant's trial occurred in 2014, but this writ application was not filed until eight years later. The record is also silent regarding circumstances that may excuse Applicant's delay, and at least some explanation for the long delay in filing should be provided. Consistent with this Court's precedent, the trial court "may sua sponte consider and determine whether laches should bar relief." Smith, 444 S.W.3d at 667. If the trial court does so, it must give Applicant the opportunity to explain the reasons for the delay and 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. Id. at 670. 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.
"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." Ex parte Perez, 398 S.W.3d 206, 216 (Tex. Crim. App. 2013) (citing Ex parte Steptoe, 132 S.W.3d 434, 437-39 (Tex. Crim. App. 2004) (Cochran, J., dissenting)).
With these additional thoughts, I join the Court's order.