Lowry, Dustin John

• Court: Court of Appeals of Texas
• Decided: June 22, 2015
• Docket: WR-83,433-01
• Status: Published

Opinion

WR-83,433-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 6/19/2015 6:49:38 PM Accepted 6/22/2015 8:12:58 AM ABEL ACOSTA CLERK In the Court of Criminal Appeals of Texas Wr__________ RECEIVED COURT OF CRIMINAL APPEALS Ex Parte Dustin John Lowry, et al. 6/22/2015 Formerly ABEL ACOSTA, CLERK IN THE COURT OF CRIMINAL APPEALS OF TEXAS TEX. CRIM. APP.PD-0427-08 ON PETITION FOR DISCRETIONARY REVIEW

Formerly on direct appeal IN THE COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS CT.APP.NO.13-03-00081-CR

DUSTIN JOHN LOWRY VS. THE STATE OF TEXAS

Formerly tried in THE 404TH DISTRICT COURT OF CAMERON COUNTY, TEXAS TRIAL COURT NO. 02-CR-480-G State of Texas v. Dustin John Lowry

et al.:

Jesus Roberto Villarreal, No. 13-08-00292-CR, in the Court of Appeals, 13th District of Texas, Corpus Christi-Edinburg, on Appeal from the 107 th District Court of Cameron County, Texas, Cause No. 06-CR- 00000413-A.

Rodrigo Garcia, Trial Court No. 879410-A, in the rd 183 District Court of Harris County, Texas.

Page 1 of 7 Javier Chavez, No. 13-09-0068-CR, in the Court of Appeals for the 13th District of Texas, formely tried in the 107th District Court or Cameron County, Texas, Trial Court No. 07-CR-00078-A.

* * * * * * * * * * Motion for Oral Argument on Laches re Several Applications in the Court of Criminal Appeals * * * * * * * * * * Respectfully submitted, By: /s/ Larry Warner Larry Warner, Attorney at law 3109 Banyan Circle, Harlingen, Texas 78550 Office: 956 230-0361 Facsimile: 1-866-408-1968 email: office@larrywarner.com State Bar of Texas 20871500; USDC,SDTX 1230 Board Certified Criminal Law, Texas Board Legal Specialization (1983) Member of the Bar of the Supreme Court of the United States (1984)

Page 2 of 7 In the Court of Criminal Appeals of Texas Wr__________ Ex Parte Dustin John Lowry, et al. Formerly IN THE COURT OF CRIMINAL APPEALS OF TEXAS TEX. CRIM. APP.PD-0427-08 ON PETITION FOR DISCRETIONARY REVIEW

Formerly on direct appeal IN THE COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS CT.APP.NO.13-03-00081-CR

Formerly tried in THE 404TH DISTRICT COURT OF CAMERON COUNTY, TEXAS TRIAL COURT NO. 02-CR-480-G State of Texas v. Dustin John Lowry

TO THE HONORABLE PRESIDING JUDGE AND JUDGES OF THE COURT OF CRIMINAL APPEALS OF TEXAS:

Mr. Warner, Counsel for Dustin John Lowry and other

Applicants for Post-Conviction writs of habeas corpus

pursuant to TEX.CODE CRIM.P.art.11.07, moves the Court of

Criminal Appeals of Texas to allow oral argument on the

subject of the application of the doctrine of laches in

habeas, as follows:

Page 3 of 7 1. Mr. Warner represents the following applicants,

among others, for post-conviction writs of habeas corpus

pursuant to TEX.CODE CRIM.P.art.11.07:

Dustin John Lowry

Jesus Roberto Villarreal

Rodrigo Garcia (a motion to reinstate is being filed)

Javier Chavez

2. In each cited matter the state has asserted or may

assert laches in the noted habeas proceeding.

3. The Court of Criminal Appeals of Texas has allowed

oral argument on an application for habeas corpus.

“[T]he county attorney again presented his

application for the three writs, habeas corpus,

prohibition, and mandamus.***It was submitted on

briefs and oral arguments at that time, and the

court took it under advisement.” State v.

Clark,187S.W.760,767hn13(Tex.Crim.App.1915)

4. The matter will effect (sic) judicial economy as

it will resolve an asserted impediment to consideration

of the merits in several cases.

5. The question of whether the judiciary’s use of

Page 4 of 7 laches to bar consideration of an application for a writ

of habeas corpus more than four years after the finality

of the judgment amounts to suspension of the writ of

habeas corpus is important to the jurisprudence of the

state. It is important because TEX.CONST.art.I,sec.12

provides: “The writ of habeas corpus is a writ of right

and shall never be suspended.”

5. The question of whether use of a judicially

imposed doctrine of laches to bar consideration of an

application for a writ of habeas corpus more than four

years after the finality of the judgment amounts to

suspension of the writ of habeas corpus is important to

the jurisprudence of the state. It is important because

TEX.CONST.art.I,sec.29 provides: “[E]verything in this

‘Bill of Rights’ is excepted out of the general powers of

government, and shall forever remain inviolate....”

6. In each of the cited cases, Writ Counsel’s brief

in support of the Application sets out in detail the

argument against applying laches in habeas matters.

Conclusion and request for relief

The Court of Criminal Appeals of Texas should allow

Page 5 of 7 oral argument in the cited cases on the issue of the use

of laches in applications for habeas corpus.

Respectfully submitted By: /s/Larry Warner Larry Warner Attorney for Appellant

Page 6 of 7 CERTIFICATE OF SERVICE

I certify that a true and correct of the above and

foregoing document, Motion for Oral Argument on Laches re

Several Applications in the Court of Criminal Appeals

was forwarded to the District of Court of Cameron County

and the District Court of Bell County Via First Class

Mail to:

Hon. Luis V. Saenz, Cameron County District Attorney’s Office, 964 E. Harrison St., Brownsville, Texas 78520 Hon. Devon Anderson, Harris County District Attorney, 1201 Franklin St., Suite 600, Houston, TX 77002

Hon. Chris Daniel, Harris County District Attorney, P. O. Box 4651, Houston, TX 77002-1901

on June 18, 2015. Respectfully submitted By: /s/Larry Warner Larry Warner Attorney for Appellant

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