Ex parte Alberto Perez

Justia.com Opinion Summary: Applicant was found guilty of murder, and his conviction was affirmed by the court of appeals in 1992. In 2011, applicant filed this application for post-conviction relief pursuant to Texas Code of Criminal Procedure Article 11.07. Applicant contended that he was denied the opportunity to pursue discretionary review by the Supreme Court because his appellate counsel failed to notify him of his conviction's affirmance in the court of appeals until June 1993, by which time the deadline for filing a petition for discretionary review (PDR) had passed. Applicant further contended that counsel's failure to timely notify him of his conviction's affirmance constituted ineffective assistance of counsel and that he should now be afforded the opportunity to file an out-of-time PDR. In response, the State invoked the equitable doctrine of laches and argued that applicant be barred from proceeding with his application for post-conviction relief. Upon review, the Supreme Court found that appellate counsel did not provide applicant with notice of the court of appeals's opinion until after the deadline for filing a PDR, and that applicant had the information necessary to seek an out-of-time PDR as early as 1993 but failed to do so until almost two decades later. The trial court concluded that applicant failed to show that, absent counsel's conduct, he would have timely filed a PDR. "Recognizing that our current approach to laches in the habeas corpus context has imposed an unreasonably heavy burden upon the State, we now adopt a revised approach that is consistent with the Texas common-law definition of that doctrine." The Court expanded the definition of prejudice under the existing laches standard to incorporate all forms of prejudice so that a court may consider the totality of the circumstances in deciding whether to hold an application barred by laches. In light of the revised approach to the doctrine of laches, the Supreme Court remanded this case to the trial court to give both applicant and the State an opportunity to present additional evidence.

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ORIGINAL | DISSENTING
Download as PDF IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,800 EX PARTE ALBERTO GIRON PEREZ, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2649-CR IN THE 50TH DISTRICT COURT FROM COTTLE COUNTY Per curiam. ORDER Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of murder and sentenced to eighty-five years’ imprisonment. The Seventh Court of Appeals affirmed his conviction. Perez v. State, No. 07-91-00225-CR (Tex. App. – Amarillo, October 9, 1992). Applicant contends, inter alia, that he was denied his opportunity to pursue discretionary review in this Court because his appellate counsel failed to notify him when the court of appeals affirmed his conviction. This Court remanded to the trial court to obtain affidavits and findings addressing this issue. Applicant’s appellate counsel submitted an affidavit in which he states that 2 he informed Applicant of the court of appeals’ decision after the time limit had passed for filing a petition for discretionary review. The State submitted an affidavit from the current District Attorney, who was the trial judge who originally presided at Applicant’s trial. In the affidavit, he states his belief that the State would be prejudiced in its ability to re-try Applicant for this charge, due to the passage of time, the potential inability of the State to locate the murder weapon and eyewitnesses, and its reasonable expectation that the faded memories of the witnesses will hamper the State’s ability to present a case. The trial court entered findings of fact and conclusions of law, finding that Applicant’s appellate counsel did not provide him with notice or a copy of the appellate opinion until after the time had passed to submit a petition for discretionary review. The trial court also finds that Applicant knew the information needed to file a writ seeking an out-of-time PDR as early as 1993, but failed to do so until almost two decades later. The trial court concludes that Applicant’s delay in seeking relief has prejudiced the State’s ability to respond “because of court-appointed counsel’s lack of memory of specific events,” and recommends that relief be denied under the doctrine of laches. See Ex parte Carrio, 992 S.W.2d 486, 488 (Tex. Crim. App. 1999). However, appellate counsel’s affidavit reflects that he does not lack memory of specific events relating to whether or not he notified Applicant of the court of appeals’ decision. We order that this application be filed and set for submission to determine whether the State’s showing that it would be prejudiced in its ability to re-try Applicant if this Court were to grant relief on a petition for discretionary review is sufficient to invoke the doctrine of laches and deny Applicant the opportunity to file an out-of-time petition for discretionary review. If a showing of prejudice in the State’s ability to re-try a case is sufficient, then under what circumstances is it 3 required, and how may such a showing be rebutted by the applicant? The parties shall brief these issues. The trial court shall determine whether Applicant is indigent. If Applicant is indigent and desires to be represented by counsel, the trial court shall appoint an attorney to represent Applicant. TEX . CODE CRIM . PROC. art 26.04. The trial court shall send to this Court, within 60 days of the date of this order, a supplemental transcript containing either the order appointing counsel or a statement that Applicant is not indigent. All briefs shall be filed with this Court on or before August 14, 2012.. Filed: May 16, 2012 Do not publish