Lowry, Dustin John ( 2015 )

WR-83,433-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 6/19/2015 6:49:38 PM
Accepted 6/22/2015 8:12:58 AM
ABEL ACOSTA
CLERK
In the Court of Criminal Appeals of Texas
Wr__________ RECEIVED
COURT OF CRIMINAL APPEALS
Ex Parte Dustin John Lowry, et al.
6/22/2015
Formerly ABEL ACOSTA, CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
TEX. CRIM. APP.PD-0427-08
ON PETITION FOR DISCRETIONARY REVIEW
Formerly on direct appeal
IN THE COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT OF TEXAS
CT.APP.NO.13-03-00081-CR
DUSTIN JOHN LOWRY
VS.
THE STATE OF TEXAS
Formerly tried in
THE 404TH DISTRICT COURT
OF CAMERON COUNTY, TEXAS
TRIAL COURT NO. 02-CR-480-G
State of Texas v. Dustin John Lowry
et al.:
Jesus Roberto Villarreal, No. 13-08-00292-CR, in
the Court of Appeals, 13th District of Texas, Corpus
Christi-Edinburg, on Appeal from the 107 th District
Court of Cameron County, Texas, Cause No. 06-CR-
00000413-A.
Rodrigo Garcia, Trial Court No. 879410-A, in the
rd
183 District Court of Harris County, Texas.
Page 1 of 7
Javier Chavez, No. 13-09-0068-CR, in the Court of
Appeals for the 13th District of Texas, formely tried in
the 107th District Court or Cameron County, Texas, Trial
Court No. 07-CR-00078-A.
* * * * * * * * * *
Motion for Oral Argument on Laches re Several
Applications in the Court of Criminal Appeals
* * * * * * * * * *
Respectfully submitted,
By: /s/ Larry Warner
Larry Warner,
Attorney at law
3109 Banyan Circle,
Harlingen, Texas 78550
Office: 956 230-0361
Facsimile: 1-866-408-1968
email: office@larrywarner.com
State Bar of Texas 20871500;
USDC,SDTX 1230
Board Certified Criminal Law,
Texas Board Legal Specialization (1983)
Member of the Bar of the Supreme Court of the
United States (1984)
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In the Court of Criminal Appeals of Texas
Wr__________
Ex Parte Dustin John Lowry, et al.
Formerly
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
TEX. CRIM. APP.PD-0427-08
ON PETITION FOR DISCRETIONARY REVIEW
Formerly on direct appeal
IN THE COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT OF TEXAS
CT.APP.NO.13-03-00081-CR
DUSTIN JOHN LOWRY
VS.
THE STATE OF TEXAS
Formerly tried in
THE 404TH DISTRICT COURT
OF CAMERON COUNTY, TEXAS
TRIAL COURT NO. 02-CR-480-G
State of Texas v. Dustin John Lowry
TO THE HONORABLE PRESIDING JUDGE AND JUDGES OF THE
COURT OF CRIMINAL APPEALS OF TEXAS:
Mr. Warner, Counsel for Dustin John Lowry and other
Applicants for Post-Conviction writs of habeas corpus
pursuant to TEX.CODE CRIM.P.art.11.07, moves the Court of
Criminal Appeals of Texas to allow oral argument on the
subject of the application of the doctrine of laches in
habeas, as follows:
Page 3 of 7
1. Mr. Warner represents the following applicants,
among others, for post-conviction writs of habeas corpus
pursuant to TEX.CODE CRIM.P.art.11.07:
Dustin John Lowry
Jesus Roberto Villarreal
Rodrigo Garcia (a motion to reinstate is being filed)
Javier Chavez
2. In each cited matter the state has asserted or may
assert laches in the noted habeas proceeding.
3. The Court of Criminal Appeals of Texas has allowed
oral argument on an application for habeas corpus.
“[T]he county attorney again presented his
application for the three writs, habeas corpus,
prohibition, and mandamus.***It was submitted on
briefs and oral arguments at that time, and the
court took it under advisement.” State v.
Clark,187S.W.760,767hn13(Tex.Crim.App.1915)
4. The matter will effect (sic) judicial economy as
it will resolve an asserted impediment to consideration
of the merits in several cases.
5. The question of whether the judiciary’s use of
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laches to bar consideration of an application for a writ
of habeas corpus more than four years after the finality
of the judgment amounts to suspension of the writ of
habeas corpus is important to the jurisprudence of the
state. It is important because TEX.CONST.art.I,sec.12
provides: “The writ of habeas corpus is a writ of right
and shall never be suspended.”
5. The question of whether use of a judicially
imposed doctrine of laches to bar consideration of an
application for a writ of habeas corpus more than four
years after the finality of the judgment amounts to
suspension of the writ of habeas corpus is important to
the jurisprudence of the state. It is important because
TEX.CONST.art.I,sec.29 provides: “[E]verything in this
‘Bill of Rights’ is excepted out of the general powers of
government, and shall forever remain inviolate....”
6. In each of the cited cases, Writ Counsel’s brief
in support of the Application sets out in detail the
argument against applying laches in habeas matters.
Conclusion and request for relief
The Court of Criminal Appeals of Texas should allow
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oral argument in the cited cases on the issue of the use
of laches in applications for habeas corpus.
Respectfully submitted
By: /s/Larry Warner
Larry Warner
Attorney for Appellant
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CERTIFICATE OF SERVICE
I certify that a true and correct of the above and
foregoing document, Motion for Oral Argument on Laches re
Several Applications in the Court of Criminal Appeals
was forwarded to the District of Court of Cameron County
and the District Court of Bell County Via First Class
Mail to:
Hon. Luis V. Saenz, Cameron County District
Attorney’s Office, 964 E. Harrison St., Brownsville,
Texas 78520
Hon. Devon Anderson, Harris County District Attorney,
1201 Franklin St., Suite 600, Houston, TX 77002
Hon. Chris Daniel, Harris County District Attorney,
P. O. Box 4651, Houston, TX 77002-1901
on June 18, 2015.
Respectfully submitted
By:
/s/Larry Warner
Larry Warner
Attorney for Appellant
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