Joiner, Lawrence

           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS

                                  NO. WR-91,267-01


                    EX PARTE LAWRENCE JOINER, Applicant


             ON APPLICATION FOR A WRIT OF HABEAS CORPUS
              CAUSE NO. 13,679A IN THE 21ST DISTRICT COURT
                        FROM BASTROP COUNTY

        YEARY, J., filed a dissenting opinion in which KELLER, P.J., and SLAUGHTER,
J., joined.
                               DISSENTING OPINION

      In November of 2009, Applicant pled guilty to aggravated robbery and went to the

jury for punishment, which assessed a term of thirty years’ imprisonment. The Third Court

of Appeals affirmed his conviction. Joiner v. State, No. 03-09-00694-CR, 2010 WL

3058826 (Tex. App.—Austin, Aug. 3, 2010) (mem. op., not designated for publication).

More than ten years later, in March of 2020, Applicant filed his first post-conviction

application for writ of habeas corpus. See TEX. CODE CRIM. PROC. art. 11.07. In it, he

contends, among other things, that the State presented false testimony at his punishment

hearing. Today, the Court grants Applicant relief in the form of a new punishment hearing,

concluding that testimony presented by the State was false, or at least created a false
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impression with the jury. In my view, even if it were appropriate to grant relief on the

merits of this claim, it should probably be barred by laches.

       A co-defendant testifying at the punishment phase of Applicant’s trial advised the

jury that he had made a deal with the State to testify against Applicant in exchange for a

ten-year sentence in the penitentiary. This was apparently accurate enough at the time. But

within two weeks of his testimony, the co-defendant obtained a period of three years’

deferred adjudication instead, apparently due to a unilateral change of heart on the part of

the prosecutor. The State notified Applicant’s trial counsel of this change in circumstances,

but trial counsel apparently did nothing with that information.

       More than ten years after this disclosure, Applicant filed his post-conviction

application for writ of habeas corpus in the convicting court, complaining for the first time

that his co-defendant’s trial testimony regarding his deal with the State constituted false

evidence. I have my doubts. Never mind that there is nothing to suggest that the co-

defendant was lying when he testified. If a ten-year sentence is what the co-defendant

honestly expected to receive at the time he was testifying, then that is what a jury would

rightly regard as the expectation that might color his testimony; not the punishment he may

in fact have ultimately received because of a prosecutor’s later, unilateral change of heart.

I am not at all sure these facts establish that false evidence was used, or a false impression

left with the jury, at the punishment phase of Applicant’s trial.

       But even accepting that a claim of false evidence would nevertheless be available

on these facts, at this point we should at least consider whether it is barred by laches.

Applicant has had ten years to investigate his conviction for purposes of an initial post-

conviction application for writ of habeas corpus. Even the most superficial of post-
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conviction investigations should long ago have revealed what Applicant’s trial counsel in

fact already knew (and presumably would have readily shared with Applicant or habeas

counsel, at least upon request)—that, in retrospect, the co-defendant’s testimony about his

deal with the State did not reflect the reality of what ultimately happened.

       Is this not the quintessential example of an applicant who has been sleeping on his

rights? I would not grant relief on Applicant’s false evidence claim without at least first

remanding the cause to the convicting court for a laches inquiry. See Ex parte Smith, 444

S.W.3d 661, 670 (Tex. Crim. App. 2014) (“A ten-and-a-half year delay is extraordinary . .

. [and] is significant enough for this Court to justly ask whether [an applicant’s] claim

should be precluded by laches.”).

       Because the Court does not, I respectfully dissent.



FILED:                     June 30, 2021
DO NOT PUBLISH