Opinion
WR-95,366-01
01-24-2024
EX PARTE DELFINO LOPEZ JR., Applicant
DO NOT PUBLISH
On Application for a Writ of Habeas Corpus Cause No. 2015CRN001126D4 in the 406th District Court From Webb County.
Yeary, J., filed a concurring opinion.
Applicant was convicted in 2016 of murder and sentenced to sixty years' imprisonment. The Fourth Court of Appeals affirmed his conviction in 2018. Lopez v. State, 582 S.W.3d 377 (Tex. App.-San Antonio 2018).
In November of 2023, 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 ineffective assistance of counsel at trial-specifically, that trial counsel elicited testimony harmful to Applicant's defense, conceded Applicant's guilt, and failed to object to hearsay testimony. He also alleges that new scientific evidence contradicts evidence offered at trial.
Today, the Court remands this application to the convicting 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 convicting court has the authority to sua sponte consider the doctrine of laches); Ex parte Bazille, 663 S.W.3d 68 (Tex Crim App 2022) (Yeary, J, concurring).
The doctrine of laches ought to be considered in a case like this one. Applicant's appeal was finalized in June of 2018, but he did not file this writ application until over five 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.
"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)).
Consistent with this Court's precedent, the convicting court "may sua sponte consider and determine whether laches should bar relief." Smith, 444 S.W.3d at 667. If the convicting 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 convicting court may include findings of fact and conclusions of law concerning the doctrine of laches in its response to this Court's remand order.
With these additional thoughts, I join the Court's order.