Ex parte Carrio, 73180

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtPER CURIAM
Citation992 S.W.2d 486
PartiesIN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. 73,180 and 73,181 EX PARTE NORMAN EDWARD CARRIO, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM HARRIS COUNTY Price, J. delivered the opinion of the court in which McCormick, P.J., Mansfield, Keller, Holland, Johnson, and Keasler, J.J. joined. Meyers, J. delivered a dissenting opinion in which Womack, J. joined. O P I N I O N This is a post-conviction application for writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P. Applicant was convicted of murder and attempted murder. Punishment was assessed at sixty years and twenty years, respectively, in the Texas Department of Criminal Justice, Institutional Division. Applicant's convictions were affirmed on direct appeal. Carrio v. State,(Tex. App.--Houston , delivered
Docket Number73180
Decision Date26 May 1999

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. 73,180 and 73,181

EX PARTE NORMAN EDWARD CARRIO, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS
FROM HARRIS COUNTY

Price, J. delivered the opinion of the court in which McCormick, P.J., Mansfield, Keller, Holland, Johnson, and Keasler, J.J. joined. Meyers, J. delivered a dissenting opinion in which Womack, J. joined.

O P I N I O N

This is a post-conviction application for writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P. Applicant was convicted of murder and attempted murder. Punishment was assessed at sixty years and twenty years, respectively, in the Texas Department of Criminal Justice, Institutional Division. Applicant's convictions were affirmed on direct appeal. Carrio v. State, Nos. 14-83-334-CR and 14-83-335-CR (Tex. App.--Houston [1st Dist.], delivered July 12, 1984, pets. ref'd).

Applicant contends, inter alia, that his convictions should be set aside as he received ineffective assistance of counsel.1 Specifically, he has raised numerous contentions regarding counsel's alleged failure to investigate, interview witnesses, and prepare for trial.

The trial court has entered findings of fact and conclusions of law, based upon the State's response, stating that due to Applicant's fourteen year delay in waiting to attack the instant convictions, the State's ability to respond has been prejudiced. The trial court recommends relief be denied under the doctrine of laches.2 This Court has never denied relief on a valid claim due to an applicant's delay in bringing the claim. On the contrary, we have held that "we have no desire to impose upon defendants the requirement that claims for relief be asserted within a specified period of time." Ex parte Galvan, 770 S.W.2d 822, 824 (Tex. Crim. App. 1989) (citing Ex parte Rocha, 482 S.W.2d 169 (Tex. Crim. App. 1972), and Ex parte Young, 479 S.W.2d 45 (Tex. Crim. App. 1972)).
Nevertheless, we have recognized that delay on the applicant's part will affect his credibility. Young, 479 S.W.2d. at 46.

The federal courts, however, have long recognized the common-law doctrine of laches in evaluating post-conviction writs of habeas corpus, and in fact codified that doctrine in Rule 9(a) of the Rules Governing 2254 Cases. Rule 9(a) provides as follows:

A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred.

In the Advisory Committee Note following this Rule, the commentators state that the grounds of error most susceptible to dismissal under Rule 9(a) are ineffective assistance of counsel, denial of right to appeal, involuntary guilty plea, use of coerced confession, and illegally constituted jury. The commentators reason that, when these claims are asserted after the passage of many years, attorneys for the defendant and the state have difficulty in ascertaining the facts. The commentators further reason that often the defense attorney has little or no recollection as to what took place and many of the participants in the trial are dead or their whereabouts unknown. Further, the court reporter's notes may have been lost or destroyed, thus eliminating any exact record of what transpired.

Finally, the commentators note that Rule 9(a) is not a statute of limitations but instead is based on the equitable doctrine of laches. Further, the language of the Rule is permissive rather than mandatory; "[T]his clearly allows the court which is considering the petition to use discretion in assessing the equities of the particular situation."

The Fifth Circuit has acknowledged that the application of Rule 9(a) "must be carefully limited to avoid abrogating the purpose of the writ of habeas corpus." Walters v. Scott, 21 F.3d 683, 686 (5th Cir. 1994). It is the burden of the State "to (1) make a...

To continue reading

Request your trial
73 practice notes
  • Ex Parte Carl Eddie Miller, Applicant., No. AP–76,167.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • October 28, 2009
    ...503, 510 (Tex.Crim.App.2004). 32. Presumably this was an enhancement paragraph alleging the 1972 heroin conviction. 33. Ex parte Carrio, 992 S.W.2d 486, 488 (Tex.Crim.App.1999). 34. Double-jeopardy principles do not bar the State from proving applicant's status as an habitual offender at a ......
  • Ex Parte Graves, No. 73,927.
    • United States
    • Texas Court of Criminal Appeals
    • January 2, 2002
    ...§ 5 was, in essence, a legislative codification of the judicially created "abuse of the writ" doctrine); see also Ex parte Carrio, 992 S.W.2d 486, 490 (Tex.Crim.App.1999) ("while the Legislature `does not tell this Court how to decide the substantive claims an applicant raises,' and thus do......
  • Ex parte Perez, No. AP–76800.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • May 8, 2013
    ...In Ex parte Carrio, this Court determined that the doctrine of laches was appropriate for application in the habeas corpus context. 992 S.W.2d 486, 487–88 (Tex.Crim.App.1999) (“[T]he doctrine of laches is a theory which we may, and should, employ in our determination of whether to grant rel......
  • Ex parte Garcia, NUMBER 13-16-00427-CR
    • United States
    • Court of Appeals of Texas
    • July 13, 2017
    ...delay has prejudiced the State, thereby rendering consideration of his claim inequitable." Id. at 219 (citing Ex parte Carrio , 992 S.W.2d 486, 487 (Tex. Crim. App. 1999) ).2. Sua sponte review by a habeas courtIn Ex Parte Smith , a habeas court recommended to the court of criminal appeals ......
  • Request a trial to view additional results
73 cases
  • Ex Parte Carl Eddie Miller, Applicant., No. AP–76,167.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • October 28, 2009
    ...503, 510 (Tex.Crim.App.2004). 32. Presumably this was an enhancement paragraph alleging the 1972 heroin conviction. 33. Ex parte Carrio, 992 S.W.2d 486, 488 (Tex.Crim.App.1999). 34. Double-jeopardy principles do not bar the State from proving applicant's status as an habitual offender at a ......
  • Ex Parte Graves, No. 73,927.
    • United States
    • Texas Court of Criminal Appeals
    • January 2, 2002
    ...§ 5 was, in essence, a legislative codification of the judicially created "abuse of the writ" doctrine); see also Ex parte Carrio, 992 S.W.2d 486, 490 (Tex.Crim.App.1999) ("while the Legislature `does not tell this Court how to decide the substantive claims an applicant raises,' and thus do......
  • Ex parte Perez, No. AP–76800.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • May 8, 2013
    ...In Ex parte Carrio, this Court determined that the doctrine of laches was appropriate for application in the habeas corpus context. 992 S.W.2d 486, 487–88 (Tex.Crim.App.1999) (“[T]he doctrine of laches is a theory which we may, and should, employ in our determination of whether to grant rel......
  • Ex parte Garcia, NUMBER 13-16-00427-CR
    • United States
    • Court of Appeals of Texas
    • July 13, 2017
    ...delay has prejudiced the State, thereby rendering consideration of his claim inequitable." Id. at 219 (citing Ex parte Carrio , 992 S.W.2d 486, 487 (Tex. Crim. App. 1999) ).2. Sua sponte review by a habeas courtIn Ex Parte Smith , a habeas court recommended to the court of criminal appeals ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT