Stewart, Alvin Christopher

In the Court of Criminal
Appeals of Texas
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No. WR-60,903-02
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EX PARTE ALVIN CHRISTOPHER STEWART,
Applicant

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On Application for Writ of Habeas Corpus
In Cause No. D-1-DC-02-904132-B
In the 299th District Court
Travis County
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YEARY, J., filed a dissenting opinion.

Today, the Court overturns a judgment that was rendered over
two decades ago, granting a new punishment hearing on the ground that
Applicant’s trial counsel was constitutionally ineffective. But when an
applicant waits over twenty years to bring such a claim, the doctrine of
laches is particularly pertinent—namely, because memory diminishes
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with the passage of time. Indeed, we see profound evidence of that in
this very case. Accordingly, equity does not favor Applicant, and I would
deny relief. Because the Court does otherwise, I respectfully dissent.
I. BACKGROUND
In 2002, Applicant was convicted of manslaughter and
aggravated robbery. For the manslaughter, he was sentenced to and
served twenty years’ imprisonment; for the aggravated robbery, he was
sentenced to sixty-five years’ imprisonment. The Third Court of Appeals
affirmed his conviction. Stewart v. State, No. 03-02-00537-CR (Tex.
App.—Austin del. Oct. 16, 2003) (not designated for publication).
Now, over two decades after his conviction, Applicant for the first
time asserts that his trial counsel was ineffective. Relying on the
convicting court’s determination that trial counsel’s performance was
deficient, the Court grants relief.
In his writ application, Applicant alleges two grounds of
ineffective assistance of counsel. First, he argues that “trial counsel
failed to investigate.” Second, he argues that “trial counsel failed to
present favorable testimony to the jury.” Specifically, Applicant’s
argument is that counsel failed to investigate circumstances
surrounding the deceased’s sexual abuse of Applicant. The convicting
court concluded that trial counsel failed to investigate, and that this
failure prejudiced Applicant.
II. LACHES
Habeas corpus is an equitable remedy, Ex parte Moreno, 245
S.W.3d 419, 428 (Tex. Crim. App. 2008), and laches is an equitable
doctrine. Ex parte Perez, 398 S.W.3d 206, 210 (Tex. Crim. App. 2013)
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(citing Baxter v. Estelle, 614 F.2d 1030, 1033 (5th Cir. 1980) (“Laches is
an equitable doctrine.”). Laches is defined as “neglect to assert right or
claim which, taken together with lapse of time and other circumstances
causing prejudice to an adverse party, operates as a bar in a court of
equity.” Perez, 398 S.W.3d at 210 (quoting Ex parte Carrio, 992 S.W.2d
486, 487 n.2 (Tex. Crim. App. 1999), which in turn quotes BLACK’S LAW
DICTIONARY 875 (6th ed. 1990)). And it also includes “neglect for an
unreasonable and unexplained length of time under circumstances
permitting diligence, to do what in law, should have been done.” Id.
When exercising equitable powers—like granting relief on a writ of
habeas corpus—courts exercise discretion. Ex parte Ross, 675 S.W.3d
310, 311 (Tex. Crim. App. 2023) (Yeary, J., dissenting) (citing Johnson
v. Cherry, 726 S.W.2d 4, 8 n.2 (Tex. 1987)). But “equity aids the diligent
and not those who slumber on their rights.” Moreno, 245 S.W.3d at
428−29. Notably, too, “the diminished memories of trial participants” is
pertinent to the doctrine of laches. Perez, 398 S.W.3d at 216.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
To show that counsel is ineffective, an applicant must prove that
(1) trial counsel’s performance was deficient, and (2) but for that
deficiency, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 694 (1984); Thompson v. State,
9 S.W.3d 808, 812 (Tex. Crim. App. 1999). But judicial review “must be
highly deferential to trial counsel[,]” and a strong presumption exists
“that counsel’s conduct fell within the wide range of reasonable
professional assistance.” Thompson, 9 S.W.3d at 813. Representation is
not judged through 20/20 hindsight. Ex parte Jimenez, 364 S.W.3d 866,
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883 (Tex. Crim. App. 2012). And, notably, the standard “has never been
interpreted to mean that the accused is entitled to errorless or perfect
counsel.” Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990).
To be sure, though, as the convicting court highlights, the
presumption of reasonableness does not apply if counsel fails to
investigate. Id. In Ex parte Welborn, the Court explained that “[i]t may
not be argued that a given course of conduct was within the realm of
trial strategy unless and until the trial attorney has conducted the
necessary legal and factual investigation which would enable him to
make an informed rational decision.” Id. There, the applicant explicitly
put the attorney on notice of potential jury misconduct, and trial counsel
seemed unfamiliar with the State’s case. Id. at 395–96. Notably, the
habeas hearing in that case took place only seven years after the trial,
and counsel explicitly testified to his failure to investigate. Id. at 392.
IV. APPLICATION OF LACHES
The doctrine of laches is particularly pertinent to ineffective
assistance of counsel claims because trial counsel must maintain an
effective memory of the trial and his actions to be able to effectively
rebut a claim that he performed deficiently. Here, according to defense
trial counsel’s affidavit, he “barely recalls the trial itself.” And to the
extent he had any notes on the trial, the file was destroyed “5–7 years
after” trial counsel retired in 2006—over a decade ago. While trial
counsel expressed some regrets regarding his trial representation at the
habeas hearing, that is precisely the kind of hindsight analysis that is
prohibited in evaluating an ineffective assistance of counsel claim.
Surely, many regrets might surface when one looks back on one’s trial
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performance as a Monday-morning quarterback, but perfect
representation is not the standard.
Simply put, when trial counsel does not have sufficient memory
to rebut a claim, due to an applicant’s “neglect for an unreasonable and
unexplained length of time under circumstances permitting diligence, to
do what in law, should have been done[,]” equity does not favor the
applicant. Instead, particularly when deteriorated memory hinders the
ability to explain trial strategy and preparation decisions, review should
be deferential to trial counsel’s performance. To hold otherwise ignores
the severe prejudice that the passage of time raises against a defense
trial counsel’s ability to rebut an ineffective assistance of counsel claim.
While our decision in Ex parte Welborn suggested that the
presumption does not apply to a failure-to-investigate claim, the
doctrine of laches counsels against granting relief. For one, Welborn is
distinguishable in that, there, the applicant informed the trial counsel
of the alleged error, creating a patent duty to investigate. Here, on the
other hand, trial counsel testified at habeas—from his limited memory—
that Applicant did not inform him of any sexual abuse. 1 And unlike
Welborn, where the trial counsel explicitly testified to his failure to
investigate, trial counsel does not recall the specifics of his investigation.
So, the reality is that, because of Applicant’s delay, it is unclear exactly

1 To the extent that the convicting court found this testimony not
credible, that finding defies the requirement that judicial review be deferential
to trial counsel and the notion that trial counsel is prejudiced by the twenty-
plus year delay. Inconsistencies in trial counsel’s habeas testimony are more
readily explained by diminished memory, rather than ineffective or ignorant
counsel—highlighting the application of laches to this case.
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what trial counsel investigated, or should have investigated, and
whether the representation was reasonable under the circumstances as
he knew them to be at the time. 2 Accordingly, the doctrine of laches and
the presumption of reasonable counsel ought to apply, barring the
hindsight nitpicking of trial counsel’s long, long-ago performance.
V. CONCLUSION
It is unfortunate that we do not possess a perfect picture of what
was, and was not, investigated in Applicant’s trial. But when an
applicant sleeps on his rights for over twenty years—significantly
prejudicing trial counsel’s ability to defend his honor and performance—
equity does not lie in Applicant’s favor. Instead, reviewing courts should
be deferential, in circumstances like these, to a defense trial counsel’s
performance. Because it seems to me that the Court is not, I respectfully
dissent.

FILED: March 5, 2025
PUBLISH

2 Even assuming that trial counsel performed deficiently by failing to

investigate the possibility of sexual abuse, it is not clear that “the evidence is
‘sufficient to undermine confidence in the outcome’ of the applicant’s trial.” Ex
parte Welborn, 785 S.W.2d at 396 (quoting Strickland, 466 U.S. at 694).
Notably, there was some evidence at trial that Applicant was sexually abused
by the victim; indeed, the State downplayed it at closing argument. So, it is far
from clear that additional extraneous evidence of the sexual abuse might have
changed the result, given that the jury had some evidence indicating sexual
abuse and still returned a verdict of sixty-five years. And although the State
now asserts that it would not have pursued these charges had it known about
the abuse, the very basis of this habeas application is that the police report,
which the State would have had access to, provided evidence of sexual abuse—
yet the State still brought these charges. It seems to me, then, that the State’s
hindsight assertion that it would have pursued a lesser charge, more than
twenty years after the trial, is dubious at best.