                                                                                          WR-82,672-01
                                                                          COURT OF CRIMINAL APPEALS
                                                                                           AUSTIN, TEXAS
                                                                          Transmitted 6/16/2015 4:12:09 PM
    June 17, 2015
                                                                            Accepted 6/17/2015 7:54:17 AM
                                                                                            ABEL ACOSTA
                                  NO. WR-82,672-01                                                  CLERK

EX PARTE                                     §          IN THE COURT OF

                                             §          CRIMINAL APPEALS

JAMES BERKELEY HARBIN II                     §          AUSTIN, TEXAS

                      STATE’S MOTION FOR REHEARING

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:

         Comes now the State of Texas and respectfully moves the Court to

reconsider its June 3, 2015 ruling granting relief in the aforementioned case. In

support of its request, the State would show the following:

                                             I.

         Applicant was charged with the January 8, 1991 murder of his father, James

Harbin, Sr. The jury found Applicant guilty and, on April 29, 1991, sentenced him

to confinement for life in the Institutional Division of the Texas Department of

Criminal Justice. The Fifth District Court of Appeals affirmed his conviction on

August 6, 1992.1 Mandate issued on March 8, 1993.

                                            II.

         Applicant filed his first Application for Writ of Habeas Corpus on June 24,

2010, more than 17 years after his conviction became final. He filed five amended


1
  See Harbin v. State, No. 05-91-00621-CR (Tex. App.—Dallas August 6, 1992) (not designated
for publication).
                                                                                  Page 1 of 8
applications.    The State supplemented its own response and argued that

Applicant’s claims were barred by the equitable doctrine of laches.

      On December 16, 2014, the trial court signed Applicant’s proposed findings,

which recommend that the State’s laches argument be overruled and that relief be

granted on all of Applicant’s grounds. Over the State’s objections, on June 3,

2015, this Court issued a per curium order granting relief and stating, in pertinent

part, the following:

      The trial court’s findings and recommendation to grant relief are
      supported by the record, as are its findings that laches should not bar
      habeas relief in Applicant’s case. Ex parte Perez, 398 S.W.3d 206
      (Tex. Crim. App. 2013).

Ex parte Harbin, No. WR-82,672-01, 2015 Tex. Crim. App. Unpub. LEXIS 387, at

*1 (Tex. Crim. App. June 3, 2015) (per curium) (not designated for publication).

                                           III.

      Given the state of the evidence in this case and in light of this Court’s recent

decisions, the fact that the State’s laches argument was summarily overruled

without any discussion or analysis is shocking.              From May of 2013 until

November of 2014, this Court issued four published opinions addressing the

equitable doctrine of laches: Perez, Smith, Moss, and Bowman.2 These opinions

place a habeas applicant on notice that he is expected to justify any delay in the

2
 See Perez, 398 S.W.3d 206; Ex parte Smith, 444 S.W.3d 661 (Tex. Crim. App. 2014); Ex parte
Moss, 446 S.W.3d 786 (Tex. Crim. App. 2014); Ex parte Bowman, 447 S.W.3d 887 (Tex. Crim.
App. 2014).
                                                                                 Page 2 of 8
assertion of his rights. So important is the requirement that an applicant pursue his

claims in a timely manner that in Smith, this Court held that the State need not even

raise the argument – a court may consider the issue sua sponte.3                  Since those

opinions were issued, this Court has ordered briefing or remanded at least seven

writs on the issue of the applicability of laches.4             Clearly, laches is now an

important consideration on habeas.

        This is a classic laches case. ―[H]abeas is governed by the elements of

equity and fairness, and those elements require a consideration of unreasonable

delay.‖5 A ruling that laches does not bar relief and that Applicant proved his

claims of ineffective assistance and Brady violation is anything but equitable and

fair.    A review of the record shows that, contrary to the trial court’s findings,

Applicant was not able to prove his allegations. But neither was the State able to


3
  See Smith, 444 S.W.3d at 667 (stating, ―we now hold that a court may sua sponte consider and
determine whether laches should bar relief.‖).
4
  See Ex parte Ervin, WR-82,736-01, 2015 Tex. Crim. App. Unpub. LEXIS 270 (Tex. Crim.
App. April 15, 2015) (not designated for publication) (remanding writ for findings as to whether
Ervin’s claim is barred by laches); Ex parte Rodriguez, WR-58, 474-02, 2014 Tex. Crim. App.
Unpub. LEXIS 970 (Tex. Crim. App. Sept. 17, 2014) (not designated for publication) (ordering
parties to brief whether, among other reasons, Rodriguez’s claims should be barred by laches);
Ex parte Caicedo, WR-78,004-01, 2014 Tex. Crim. App. Unpub. LEXIS 543 (Tex. Crim. App.
June 11, 2014) (not designated for publication) (ordering further findings); Ex parte Martin,
WR-78,402-01, 2014 Tex. Crim. App. Unpub. LEXIS 365 (Tex. Crim. App. April 9, 2014) (not
designated for publication) (ordering briefing); Ex parte Mejia, WR-79,846-01, 2013 Tex. Crim.
App. Unpub. LEXIS 847 (Tex. Crim. App. July 24, 2013) (not designated for publication)
(ordering further findings); Ex parte Landon, WR-77,570-01, 2013 Tex. Crim. App. Unpub.
LEXIS 779 (Tex. Crim. App. June 26, 2013) (not designated for publication) (ordering further
findings); Ex parte Ragland, WR-79,450-01, 2013 Tex. Crim. App. Unpub. LEXIS 764 (Tex.
Crim. App. June 26, 2013) (not designated for publication) (ordering further findings).
5
  Bowman, 447 S.W.3d at 888.
                                                                                     Page 3 of 8
disprove them.       The reason neither side was able to prove or defend against

Applicant’s allegations was because so much time had passed between the offense,

the trial, and the filing of the writ – and that was Applicant’s doing.              Applicant

waited nearly twenty years to file his application for writ of habeas corpus. By this

time, files had been lost or destroyed (trial counsel’s complete file, the

complainant’s medical records), witnesses had died (the complainant’s long-time

psychiatrist, Applicant’s aunt), and the memories of all of the parties involved had

faded.6 The lack of available evidence compromised the reliability of the habeas

proceedings and it will certainly compromise the reliability of any trial proceedings

in the event that relief is granted.

                                              IV.

       In Perez, this Court discussed that a delay of longer than five years may be

considered unreasonable.7 In this case, Applicant waited more than three times

that length of time.        Importantly, he advanced no legitimate reason for his

extraordinary delay.       The trial court’s findings excuse Applicant’s delay on the

basis of his claim that it was not until 2008 that the District Attorney’s Office

6
  See Ex parte Perez, 445 S.W.3d 719, 727 (Tex. Crim. App. 2014) (finding Perez’ delay in
asserting his claims unreasonable and unjustified and that the State was prejudiced by witnesses’
faded memories and lack of available evidence).
7
  Perez, 398 S.W.3d at 216-18. Indeed, in Perez, this Court noted that Perez’s alleged
justifications were ―inadequate to warrant a grant of equitable relief in light of the excessive
delay and applicant’s failure to take any meaningful action to assert his rights during the past
decade and a half.‖ 445 S.W.3d at 727. The same is true in this case. There is no evidence in
the record showing that Applicant made any attempt whatsoever to diligently assert his rights at
any time between 1993 and 2010.
                                                                                      Page 4 of 8
began opening its files and he had access and he was able to assert his claims.8

The problem is that this justification is disingenuous.

       When Applicant filed his initial application in 2010 and amended it in July

of 2013, his request for relief was based on a claim of ineffective assistance of

counsel; at issue at that time was Applicant’s claim that trial counsel ―fail[ed] to

present evidence of Applicant’s abuse by the deceased and Applicant’s mental

state.‖9 This claim was not based in any way on the State’s open file. In 2014,

Applicant amended his application an additional four times, only at that point

adding a Brady allegation based on information found in the State’s file. The

claim that the open file policy justified the delay in the filing of his initial writ is

simply false. The trial court’s findings create the impression that, much like an

applicant who waits for science and technology to improve so that he may be

exonerated, Applicant sat patiently waiting to file his writ until just the right time.

This is not the case. This is a case where the Applicant sat on his rights. He sat

on those rights for nearly two decades.

       As it pertains to Applicant’s Brady claims, while the open file policy may

arguably provide some justification for his delay, the fact remains that there is a

failure of proof as to Applicant’s claim that the complained-of evidence was not

8
  Beyond the specious claim regarding the open file policy, the trial court’s findings make no
mention of the 20-year delay in the filing of the instant writ. Similarly, the findings make little
mention of the witnesses’ faded memories. These facts alone should give the Court pause.
9
  See Applicant’s Amended Writ filed July 23, 2013.
                                                                                        Page 5 of 8
disclosed. There is simply no proof that the complained-of evidence was not

disclosed.    Neither the prosecutor nor trial counsel could recall what or whether

evidence was disclosed.10 The State’s trial file contains no record of Brady

disclosures made in this case. Trial counsel could not locate his complete file so it

could not be determined what information he had in his possession at the time of

trial. The trial court’s findings on this issue incorrectly and unfairly err on the side

of finding a Brady violation – since there is no evidence that the evidence was

disclosed, it must not have been.

                                              V.

       Also significant in this writ is the prejudice to the State, another matter

sidestepped in the trial court’s findings. Throughout the instant proceedings, the

State has argued that, not only has it been prejudiced in its ability to respond to the

instant allegations, but that it will also be prejudiced in its ability to re-try

Applicant, even if only on the issue of punishment. The trial court did not address

the State’s first argument and only marginally addressed the second. Applicant

waited nearly twenty years to complain about his case.                   The impact of his




10
   The trial court findings make much of the fact that the prosecutor may not have provided
copies of certain documents. The fact that a copy of a document was not provided does not
prove that the information was not disclosed. Neither party could recall whether the information
was disclosed.
                                                                                     Page 6 of 8
extraordinary delay on the State is entitled to a critical review. The failure to do

flies in the face of Perez.11

                                            VI.

         The State acknowledges that since this writ has been pending before this

Court, Applicant has been released onto parole. The State acknowledges that if

Applicant was re-tried and he received a life sentence yet again, he may be re-

released onto parole.         The decision in this case is nevertheless worthy of this

Court’s careful attention and review, not only because of the gravity of the offense,

but also because of the important legal issues to be considered – issues not

addressed in any form or fashion by this Court’s June 3rd decision.

         Pursuant to Texas Rule of Appellate Procedure 79, the State respectfully

requests that this Court grant a rehearing, review the State’s proposed findings of

fact and conclusions of law, the State’s objections to the trial court’s findings, and

reconsider its June 3, 2015 decision granting relief in this case.

         WHEREFORE, PREMISES CONSIDERED, the State respectfully requests

that this Court grant a rehearing and, upon reconsideration of the entire record, find

that Applicant’s claims are barred by the equitable doctrine of laches or, in the

alternative, that Applicant is not entitled to relief.




11
     See Perez, 398 S.W.3d at 217.
                                                                             Page 7 of 8
                                                  Respectfully submitted,



                                                  _________________________
Susan Hawk                                        Christine Womble
Criminal District Attorney                        Assistant District Attorney
Dallas County, Texas                              State Bar No. 24035991
                                                  Frank Crowley Courts Building
                                                  133 N. Riverfront Blvd., LB-19
                                                  Dallas, Texas 75207-4399
                                                  (214) 653-3625
                                                  (214) 653-3643 (fax)



                     CERTIFICATE OF COMPLIANCE

      I hereby certify that the foregoing document contains 1,944 words, inclusive

of all content.


                                                  __________________________
                                                  Christine Womble


                        CERTIFICATE OF SERVICE

      I hereby certify that a true copy of the foregoing response was served on

Gary Udashen, attorney for Applicant, via e-service on June 16, 2015.

                                                  _________________________
                                                  Christine Womble




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