Tunsel, Joseph Dion

• Court: Court of Criminal Appeals of Texas
• Decided: December 7, 2022
• Docket: WR-75,287-02
• Status: Published

Opinion

In the Court of Criminal Appeals of Texas ══════════ No. WR-75,287-02 ══════════

EX PARTE JOSEPH DION TUNSEL, Applicant ═══════════════════════════════════════ On Application for a Writ of Habeas Corpus Cause No. 930806-A in the 209th District Court From Harris County ═══════════════════════════════════════

YEARY, J., filed a concurring opinion, in which SLAUGHTER, J., joined.

Applicant was convicted in 2003 of aggravated robbery and sentenced to twenty-five years’ imprisonment. Applicant did not appeal his conviction. In September of 2010, 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 received ineffective TUNSEL – 2

assistance of counsel and entered an involuntary plea. 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 (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 (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 2003, but this writ application was not filed until seven years later. 1 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

1 “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)). TUNSEL – 3

doctrine of laches in its response to this Court’s remand order. With these additional thoughts, I join the Court’s order.

FILED: December 7, 2022 DO NOT PUBLISH