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. 43,698-01-A IN THE 47TH DISTRICT COURT POTTER COUNTY

PER CURIAM . MEYERS, J., filed a dissenting opinion. JOHNSON , J., concurred.

OPINION

After filing and setting Al Letroy Smith’s application for writ of habeas corpus, this

Court handed down its opinion in which we held that a court may sua sponte raise and

ultimately deny an applicant’s claim on the basis of laches.1 Our opinion remanded the

application to the habeas judge to give Smith an opportunity to explain his delay in seeking

habeas relief.2 In response, the habeas judge entered findings of fact and conclusions of law

and recommended that Smith’s application be denied on the basis of laches. Specifically, the

1 Ex parte Smith, 444 S.W.3d 661 (Tex. Crim. App. 2014). 2 Id. 2

habeas judge found that, “[b]y [Smith’s] own acknowledgment in his habeas application,

applicant was aware of his right to appeal from July 2002 forward. As explanation for the

10 ½ year delay from conviction to the habeas application, applicant, through newly-

appointed counsel, points only to his misplaced reliance ‘on the care and vigilance’ of former

appellate counsel Wilson.”

Because at the time the judge entered his findings of fact and conclusions of law the

record did not contain Smith’s explanation for his delay, we remanded the cause to the

habeas court a second time. The record has since been supplemented to include Smith’s filed

pleading. Smith contended that, “[b]y inaction, counsel became an ‘unexpected or

unavoidable hindrance’” and that as a layperson he should not “be expected to know how

long he is expected to wait before concluding that he has been left without counsel and must

apply for relief himself.”

We find that the record as supplemented supports the judge’s findings of fact and

conclusions of law and therefore adopt them. Relief is denied.

Delivered: June 24, 2015 Do not publish