            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS

                       NO. WR-90,841-01


             EX PARTE MARCUS WHITE, Applicant


 ON APPLICATION FOR WRIT OF HABEAS CORPUS CAUSE NO.
    20080D04787-409-1 IN THE 409TH DISTRICT COURT
                FROM EL PASO COUNTY



      N EWELL, J., filed a concurring opinion in which H ERVEY,
R ICHARDSON, and W ALKER, JJ., joined.

     Applicant was convicted of murder for his part in a gang-related

beating of Valentin Rodriguez. Applicant, a member of the gang “Hated

By Many,” was at a party attended by Rodriguez when the two got into

an argument over a woman. As Rodriguez was being helped out of the

party, Applicant knocked Rodriguez to the ground;     Rodriguez lost

consciousness when the back of his head hit the sidewalk. Thereafter,

several people, including Applicant, began punching, kicking, and
                                                                White Concurring — 2

stomping Rodriguez for one to two minutes before Rodriguez could be

carried away by his friends. They did not take him to the hospital, and

Rodriguez subsequently died from blunt force trauma to the head. A jury

convicted Applicant of murder and sentenced him to seventy years in

prison.

      In his post-conviction application for writ of habeas corpus,

Applicant raises several grounds for relief including allegations of

ineffective assistance of counsel, prosecutorial misconduct, and actual

innocence. I agree with the Court’s decision to remand the case. I write

separately to note that I believe it is time for us to reconsider whether

courts should have the ability to raise the issue of laches sua sponte when

the State declines to do so, particularly as we seem to be getting closer

and closer to treating that ability like a duty.1

      The writ of habeas corpus is a vital instrument for the protection of

individual liberty.2       And while I recognize the State’s interest in the

finality of judgments, laches is a common-law doctrine that has

traditionally been used as an equitable defense in civil cases rather than




     1
         See Ex parte Sm ith, 444 S.W .3d 661, 663 (Tex. Crim . App. 2014).

     2
         See Boum ediene v. Bush, 553 U.S. 723, 743 (2008).
                                                                 White Concurring — 3

as a limitation on the scope of the writ of habeas corpus.3                       So, I am

beginning to question how good a fit this equitable doctrine is to criminal

cases given that individuals have rights while governments have powers.4

Nevertheless, in Ex parte Perez, we expanded the scope of the doctrine

of laches to allow for an inquiry into whether the State might be

prejudiced in retrying the defendant after relief is granted.5 Given this

broadened and more workable standard than the one we set out in Ex

parte Carrio,6 I trust local prosecutors to raise the defense of laches when

they feel the case warrants it. They are, I believe, in the best position to

determine whether they have been prejudiced by an applicant’s delay in

filing an application for a post-conviction writ. Thus, leaving the choice

and responsibility up to the local prosecutors to raise or not raise the



       3
         See, e.g., Ex parte Perez, 398 S.W .3d 206, 210–11 (Tex. Crim . App. 2013) (relying
in part upon the default judgm ent case Caldwell v. Barnes, 975 S.W .2d 535, 538 (Tex.
1998) as support for the application of the equitable doctrine of laches in an application for
a post-conviction writ of habeas corpus); Del Pozo v. W ilson Cypress Co., 269 U.S. 82,
86–87, 89 (1925) (relying on laches and adverse possession in deciding suit to quiet title to
a confirm ed land grant in Florida).

       4
         See, e.g., State ex. rel. Turner v. McDonald, 676 S.W .2d 371, 373–74 (Tex. Crim .
App. 1984) (noting that the State does not have a “right” to a jury trial, though it has
interests in the m ethod of trial of crim inal accusations). See also Ex parte Sm ith, 444
S.W .3d at 671 (Meyers, J., dissenting) (to excuse the State from having to assert laches at
all, which m ay show that an application should be dism issed, tips the balance of equity
away from applicants).

       5
           398 S.W .3d 215–16.

       6
        992 S.W .2d 486, 488–89 (Tex. Crim . App. 1999), overruled in part by Ex parte
Perez, 398 S.W .3d at 213–15.
                                                   White Concurring — 4

defense of laches strikes the proper balance between the need for finality

in judgments and the vital function of the writ of habeas corpus.

     With these thoughts, I join the Court’s remand order.

Filed: April 15, 2020

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