









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. AP-76,800


EX PARTE ALBERTO GIRON PEREZ, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 2649-CR IN THE 50TH JUDICIAL DISTRICT COURT
FROM COTTLE COUNTY


 Meyers, J., filed a dissenting opinion.
 

DISSENTING OPINION


	Although we have not yet seen Applicant's petition for discretionary review, the
majority says that there is no reason to allow him to file an out-of-time PDR because the
passage of time makes it hard for the State to retry him.  There are a few steps the
majority seems to be skipping here.  First, Applicant may not file a PDR even if we allow
him to; second, the chances of us granting the PDR are pretty slim; and third, it is even
more unlikely that we would grant Applicant relief-especially in the form of a new trial. 
I think the majority is a bit premature to worry about the State's ability to retry.  The
majority focuses on the heavy burden on the State, but all Applicant is asking is to be
allowed to file a PDR.  And if we deny this application, then he has used his one writ of
habeas corpus and any future writ would be dismissed as subsequent under Code of
Criminal Procedure Article 11.07, Section 4.  
	It looks like the State has won the trifecta here because the majority has (1)
expanded the doctrine of laches to include prejudice to the State's ability to retry a
defendant, (2) applied this definition of prejudice at a point in the case when the State's
ability to retry the defendant is not yet at issue, and (3) done so without the State even
having to raise the issue.  The enthusiasm exhibited by the majority in this case rivals that
of a pharmaceutical company who has eagerly announced the miracle cure for a disease
that has not yet been discovered and may not even exist.  The purpose of this opinion at
this stage of the game escapes me, as does the motivation.  There was certainly no
necessity to implement laches at this stage of the writ process.  Apparently there was
either a desire to present the State with this theory to halt the proceedings before they
even begin or this particular Applicant simply fit the profile for someone who is
undeserving of the granting of a writ.  In either case, it has now turned into the gift that
keeps on giving. 
	Neither the State nor the majority has shown that the State's ability to defend long-standing convictions is prejudiced by us allowing Applicant to file an out-of-time PDR.  I
would let him file the PDR, and then if we grant the PDR and if we decide he is entitled to
relief, then we can determine if there is prejudice to the State.  I therefore respectfully
dissent.

Filed: May 8, 2013
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