             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                               NOS. WR-84,786-01 & 84,786-02

                  EX PARTE JEFFREY SHAWN POINTER, Applicant

         ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS
   CAUSE NOS. CR07-300A & CR07-301A IN THE 235TH DISTRICT COURT
                       FROM COOKE COUNTY

       Y EARY, J., filed a concurring opinion in which S LAUGHTER, J., joined.

                                  CONCURRING OPINION

       The Court denies Applicant relief on a claim of illegal sentence premised on its recent

holding in Ex parte Pue, 552 S.W.3d 226 (Tex. Crim. App. 2018). As the Court’s per curiam

opinion today makes clear, however, Applicant did not—strictly speaking—make such a

claim. Even if he has somehow inferentially made a claim of illegal sentence of the kind we

recognized in Pue,1 he waited eight years from the time of his convictions to raise it.

       Because I do not believe that such an illegal-sentence claim ought to be regarded as


       1
          We filed and set this writ application and ordered the parties to brief the issue of whether
Pue should be applied retroactively. Ex parte Pointer, Nos. WR-84,786-01 & WR-84,786-02, 2018
WL 4905424 (Tex. Crim. App. Oct. 10, 2018) (not designated for publication). Concluding that
Applicant has not made an illegal sentence claim in any event, the Court finds it unnecessary to reach
this issue after all.
                                                                                POINTER — 2

available to raise for the first time in a post-conviction application for writ of habeas corpus,

and because, in any event, such a claim should be regarded as barred by laches if an applicant

waits too long to raise it, I concur in the Court’s judgment to deny Applicant relief in this

case. See Ex parte Westerman, 570 S.W.3d 731, 732–35 (Tex. Crim. App. 2019) (Yeary, J.,

dissenting) (arguing that a faulty-enhancement illegal sentence claim must be preserved by

a trial level objection, and is also subject to rejection under the doctrine of laches). And I

would not grant him relief on any of the claims he actually does make in his post-conviction

writ application for the reasons the Court gives today.




FILED:                       December 11, 2019
DO NOT PUBLISH
