Full Opinion (html_with_citations)

      In the Court of Criminal
          Appeals of Texas
                       ══════════
      NOS. WR-16,721-11, WR-16,721-12, WR-16,721-13 &
                       WR-16,721-14
                       ══════════
            EX PARTE RONALD DALE EITEL,
                             Applicant
   ═══════════════════════════════════════
         On Applications for Writs of Habeas Corpus
     Cause Nos. 364014-E, 356103-E, 364015-E & 356099-E
                  in the 263rd District Court
                      From Harris County
   ═══════════════════════════════════════

       YEARY, J., filed a concurring opinion, in which SLAUGHTER, J.,
joined.

      Applicant was convicted in 1982 of two counts of rape and two
counts of aggravated sexual abuse. He was sentenced to twenty years’
imprisonment on the rape charges and sixty years’ imprisonment on the
aggravated sexual abuse charges. The First Court of Appeals affirmed
                                                                    EITEL – 2




his convictions in 1983. Eitel v. State, Nos. 01-82-00880-CR; 01-82-
00881-CR; 01-82-00882-CR; 01-82-00883-CR (Tex. App.—Houston [1st
Dist.] Nov. 23, 1983) (not designated for publication). In October of 2013,
Applicant filed these subsequent applications for writ of habeas corpus
in the county of conviction. TEX. CODE CRIM. PROC. art. 11.07. In these
applications, he alleges that his plea was involuntary because his
counsel told him that forensic serology reports did not exclude him as
the perpetrator of the assaults, when in fact, five of the six tests did
exclude him as the perpetrator. Applicant further alleges that he would
not have pled guilty but for counsel’s misrepresentations.
       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 1983, but these writ applications
were not filed until almost thirty years later. 1 The record includes an
affidavit in which Applicant claims that after sentencing he quickly


       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)).
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began a “fervent search” for the serology reports by hiring two
investigators and three lawyers starting in 1984. Writ Record, at 41-44.
However, Applicant admits that he successfully obtained the serology
reports in October of 2000, thirteen years prior to filing these writ
applications. Even assuming that the delay in filing from when
Applicant’s appeal was finalized in 1983 until Applicant obtained the
serology results is justifiable, at least some explanation for the long
delay in filing after Applicant obtained the serology results 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 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:                                  December 7, 2022
DO NOT PUBLISH