Simmons, Damon AKA Gore, Damien

In the Court of Criminal
Appeals of Texas
══════════
No. WR-94,074-01
══════════

EX PARTE DAMON SIMMONS,
Applicant
═══════════════════════════════════════
On Application for a Writ of Habeas Corpus
Cause No. 814816-A in the 179th District Court
From Harris County
═══════════════════════════════════════

YEARY, J., filed a concurring opinion, in which SLAUGHTER, J.,
joined.

Applicant was convicted in 1999 of aggravated robbery and
sentenced to thirty years’ imprisonment. The Fourteenth Court of
Appeals affirmed his conviction in 2000. Simmons v. State, No. 14-99-
00890-CR, 2000 WL 716470 (Tex. App.—Houston [14th Dist.] June 1,
2000). In July of 2011, Applicant filed an application for writ of habeas
SIMMONS – 2

corpus in the county of conviction. TEX. CODE CRIM. PROC. art. 11.07. In
his application, he alleges that he received ineffective assistance of
counsel for failing to conduct an adequate voir dire and that his trial
counsel failed to provide an adequate defense.
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 in 2000, but this writ application
was not filed until eleven 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

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)).
SIMMONS – 3

Applicant’s delay has caused any prejudice to their ability to defend
against Applicant’s 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: December 7, 2022
DO NOT PUBLISH