Luera, Michael Keith Jr.

In the Court of Criminal Appeals of Texas ══════════ No. WR-93,813-01 ══════════ EX PARTE MICHAEL KEITH LUERA, JR., Applicant ═══════════════════════════════════════ On Application for a Writ of Habeas Corpus Cause No. A-13,435-A in the 173rd District Court From Henderson County ═══════════════════════════════════════ YEARY, J., filed a concurring opinion, in which SLAUGHTER, J., joined. Applicant was convicted in 2009 of indecency with a child – sexual contact and sentenced to four years’ imprisonment. The Twelfth Court of Appeals affirmed his conviction in 2010. Luera v. State, No. 12-09- 00101-CR (Tex. App.—Tyler Feb. 26, 2010) (mem. op., not designated for publication). LUERA – 2 In April 2022, 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 is actually innocent and that his plea was involuntary. 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 2009, but this writ application was not filed until over thirteen 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 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)). LUERA – 3 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 doctrine of laches in its response to this Court’s remand order. With these additional thoughts, I join the Court’s order. FILED: June 8, 2022 DO NOT PUBLISH