FROM HUNT COUNTY
Cochran, J., filed a dissenting opinion.
I respectfully dissent to the Court's Order granting applicant relief on her claim for an out-of-time petition for discretionary review. Applicant was convicted of this capital murder in 1997. Her direct appeal was rejected by the Texarkana Court of Appeals on February 17, 1999. Bacey v. State, 990 S.W.2d 319 (Tex. App. - Texarkana 1999, n.p.h.) On November 17, 2003, nine years after the murder, seven years after her conviction, and nearly five years after her appeal was rejected, she filed a writ of habeas corpus alleging that her trial attorney failed to notify her that her conviction had been affirmed on appeal and that she could file a pro se petition for discretionary review with this Court. Trial counsel has filed an affidavit stating that he recalled sending applicant a copy of the court of appeals' opinion, but he has no proof or recollection of whether he informed her of her right to file a pro se petition for discretionary review.
This lapse of memory and failure to keep supporting documentation on an appeal affirmed five years ago is not surprising. I would deny relief based on the doctrine of laches. See Ex parte Steptoe, 132 S.W.3d 434, 436 (Tex. Crim. App. 2004) (Cochran, J., dissenting).
Cochran, J.
Filed: September 29, 2004
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