Smith, Al Letroy

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-79,465-01

EX PARTE AL LETROY SMITH, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM THE CAUSE NO. 43,986-01-A IN THE 47 TH DISTRICT COURT POTTER COUNTY

M EYERS, J., filed a dissenting opinion.

DISSENTING OPINION

I disagreed with the majority when it expanded the doctrine of laches in writs of

habeas corpus in Perez v. State, 398 S.W.3d 206, 219-20 (Tex. Crim. App. 2013) (Meyers,

J., dissenting), and I disagree with it again today. The majority is handicapping applicants

and further aiding the State by not requiring the State to plead laches at all, but then forcing

the applicant to show, in yet another court, why his application should not be barred.

This process is particularly unkind to those applicants who had no idea why their case

was not being advanced in the courts, as occurred here. As a consequence of his counsel’s

likely ineffective assistance, Applicant sat in jail for ten years before informing the courts Smith Dissent - Page 2

that he never received his rightful appeal. Without a lawyer in jail with him, there is no

reason an applicant should know the time limit for filing an application for a writ of habeas

corpus. The majority talks in detail about using an equitable standard, but, considering that

the alternative to filing a writ is being incarcerated, equity is clearly not on the side of

applicants. And to excuse the State from having to assert laches at all, which may show that

an application should be dismissed, further tips the balance of equity away from applicants.

Further, there is nothing in the majority opinion that indicates what criteria one would follow

in order to decide which cases warrant this sua sponte consideration. Reading the majority

opinion, one can only draw the conclusion that this case is being returned for no reason other

than the fact that a substantial amount of time has passed between the conviction and the

application.

Instead of remanding this case for Applicant to explain his delay, we should be

requiring the State to explain to us why it did not plead laches itself. Applicant now must

overcome two burdens: proving he is not barred by laches, and proving he received

ineffective assistance of counsel. Because I believe that the onus should be on the State and

that we should not consider sua sponte whether laches bars an applicant’s claim, I

respectfully dissent.

Meyers, J.

Filed: October 1, 2014 Smith Dissent - Page 3

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