Ivy, Clinton Ray ( 2022 )


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  •        In the Court of Criminal
    Appeals of Texas
    ══════════
    No. WR-94,232-01
    ══════════
    EX PARTE CLINTON RAY IVY,
    Applicant
    ═══════════════════════════════════════
    On Application for a Writ of Habeas Corpus
    Cause No. F43633-A in the 413th District Court
    From Johnson County
    ═══════════════════════════════════════
    YEARY, J., filed a concurring opinion.
    Applicant was convicted in 2009 of continuous sexual abuse of a
    young child and sentenced to fifty years’ imprisonment. The Fourteenth
    Court of Appeals affirmed his conviction in 2011. Ivy v. State, No. 14-10-
    00028-CR, 
    2011 WL 915016
     (Tex. App.—Houston [14th Dist.] March 17,
    2011) (not designated for publication). In October of 2022, Applicant
    filed an application for writ of habeas corpus in the county of conviction.
    IVY – 2
    TEX. CODE CRIM. PROC. art. 11.07. In his application, he alleges that he
    received ineffective assistance from both trial and appellate counsel.
    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 appeal was finalized in 2011, but this writ application
    was not filed until eleven 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 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
    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)).
    IVY – 3
    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:                                  November 9, 2022
    DO NOT PUBLISH
    

Document Info

Docket Number: WR-94,232-01

Filed Date: 11/9/2022

Precedential Status: Precedential

Modified Date: 11/14/2022