In the Court of Criminal Appeals of Texas ══════════ No. WR-92,046-03 ══════════ EX PARTE DERIC EUGENE MADISON, Applicant ═══════════════════════════════════════ On Application for a Writ of Habeas Corpus Cause No. W14-76000-U(C) in the 291st District Court From Dallas County ═══════════════════════════════════════ YEARY, J., filed a concurring opinion.

Applicant was convicted in 2015 of murder and sentenced to life imprisonment. The Fifth Court of Appeals affirmed his conviction in 2016. Madison v. State, No. 05-15-00859-CR, 2016 WL 7163913 (Tex. App.—Dallas Nov. 8, 2016) (not designated for publication). In July of 2022, Applicant filed an application for writ of habeas corpus in the county of conviction. TEX. CODE CRIM. PROC. art. 11.07. In his MADISON – 2

application, he alleges that his trial counsel was ineffective for various reasons.

Today, the Court remands this application to the trial court to further develop the record. I join the Court’s remand order. But I write separately to address my thoughts concerning the doctrine of laches and its possible application to this case. See Ex parte Smith, 444 S.W.3d 661 (Tex. Crim. App. 2014) (holding a trial court has the authority to sua sponte consider the doctrine of laches); Ex parte Bazille, ___ S.W.3d ___, No. WR-89,851-02, 2022 WL 108348 (Tex. Crim. App. Jan. 12, 2022) (Yeary, J., concurring).

The doctrine of laches ought to be considered in a case like this one. Applicant’s appeal was finalized when the court of appeals issued its mandate in June of 2017, but this writ application was not filed until five years later. 1 The record is also silent regarding circumstances that may excuse Applicant’s delay, and at least some explanation for the long delay in filing should be provided. Consistent with this Court’s precedent, the trial court “may sua sponte consider and determine whether laches should bar relief.” Smith, 444 S.W.3d at 667. If the trial court does so, it must give Applicant the opportunity to explain the reasons for the delay and give the State’s prosecutors and/or former counsel for Applicant an opportunity to state whether Applicant’s delay has caused any prejudice to their ability to defend against Applicant’s

1 “Our revised approach will permit courts to more broadly consider the diminished memories of trial participants and the diminished availability of the State’s evidence, both of which may often be said to occur beyond five years after a conviction becomes final.” Ex parte Perez, 398 S.W.3d 206, 216 (Tex. Crim. App. 2013) (citing Ex parte Steptoe, 132 S.W.3d 434, 437–39 (Tex. Crim.

App. 2004) (Cochran, J., dissenting)).

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claims. Id. at 670. And ultimately, the trial court may include findings of fact and conclusions of law concerning the doctrine of laches in its response to this Court’s remand order.

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

FILED: January 25, 2023 DO NOT PUBLISH