Spencer, Benjamin John

In the Court of Criminal
Appeals of Texas
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No. WR-69,994-02
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EX PARTE BENJAMIN JOHN SPENCER,
Applicant

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On Application for a Writ of Habeas Corpus
Cause No. W87-96524-T(B) in the 283rd District Court
From Dallas County
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YEARY, J., filed a dissenting opinion, in which KELLER, P.J.,
joined.

This is a subsequent post-conviction application for writ of habeas
corpus, brought under Article 11.07, Section 4, of the Texas Code of
Criminal Procedure. TEX. CODE CRIM. PROC. art. 11.07 § 4. It challenges
Applicant’s thirty-seven-year-old conviction, from 1988, for the offense
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of aggravated robbery with a deadly weapon. Agreeing with the already
“agreed” findings of the parties from the trial court, and without even
mentioning that this is a subsequent—not an initial—writ application,
the Court today grants relief on Applicant’s claims of alleged false
evidence and Brady violations. Majority Opinion at 1–2 (citing Brady v.
Maryland, 373 U.S. 83 (1967)). But the Court’s opinion fails to even
mention, much less address, the Article 11.07, Section 4, bar for
subsequent applications.
Applicant was convicted by a jury on March 28, 1988, and
sentenced to life in prison. Sixteen years later, on September 22, 2004,
he filed an initial application for the writ of habeas corpus with the
District Clerk of Dallas County in which he complained that: (1) the
State failed to disclose Brady evidence; (2) the State knowingly used
false testimony against him; (3) his counsel was constitutionally
ineffective; and (4) he was actually innocent. This initial application
clearly suggested Applicant’s concerns about the testimony of
eyewitnesses Gladys Oliver, Jimmie Cotton, and Danny Edwards. See
Applicant’s Initial Writ Application, WR-69,994-01 (Sept. 22, 2004). It
also demonstrates that, even then, Applicant was referencing an
alternate suspect named Michael Hubbard. However, this Court denied
relief in a published opinion. Ex parte Spencer, 337 S.W.3d 869 (Tex.
Crim. App. 2011).
Later, in September of 2020, approximately thirty-two years after
his 1988 conviction, and approximately nine years after this Court
denied his initial application, Applicant filed this subsequent post-
conviction application for the writ of habeas corpus with the District
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Clerk of Dallas County. In this latest (subsequent) application,
Applicant now complains that the testimony of witnesses Gladys Oliver,
Jimmie Cotton, and Danny Edwards was false, and that new scientific
evidence shows that it was impossible for the State’s three eyewitnesses
to have reliably identified Applicant at the time of the incident.
Presumably, the Court believes Applicant has satisfied the
Section 4 bar to this subsequent application. But the Court says nothing
about that question in its opinion, leaving how it reached that conclusion
open to speculation. As for the district court, all it has to say about the
matter is the following:
Initially, the court finds that this writ application is a
permissible subsequent application. The court finds that
each of these grounds is based on a newly available legal
theory and newly discovered evidence under Art. 11.07,
Sections 4(a)(1) and (2) of the Texas Code of Criminal
Procedure. The law provides grounds for a permissible
subsequent writ application when the legal and factual
bases for the applicant’s claims were unavailable on the
date the applicant filed his previous application. See Tex.
Code Crim. Proc. Art. 11.07, Sections 4(b) and (c). In this
case as discussed below, the legal and factual bases for his
current claims were unavailable on the date Spencer filed
his previous application, which he filed on September 22,
2004. The court, therefore, finds that these grounds are
legally permissible as subsequent writ grounds.

Agreed Findings at 7–8. This paragraph may appear to address the
issue, but it is utterly conclusory. It fails to analyze the truly relevant
question, which is whether the claims Applicant makes in this
subsequent application were “unavailable” in the sense that the “factual
basis was not ascertainable through the exercise of reasonable diligence
on or before” the date the former application was filed. TEX. CODE CRIM.
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PROC. art. 11.07 § 4(c). In my view, the Court errs by failing to bring any
scrutiny to bear on that question.
It is beyond dispute that, by the time Applicant’s initial habeas
application was filed, Applicant was already expressing concerns about
the testimony of Gladys Oliver, Jimmy Cotton, and Danny Edwards. See
Applicant’s Initial Writ Application, WR-69,994-01 (Sept. 22, 2004).
That first writ application was filed sixteen years after Applicant’s 1988
conviction. Is it really the case that, in those sixteen years, in the
exercise of “reasonable diligence,” no one could have interviewed these
witnesses and others to discover the facts presented to this Court in the
present application?
And even beyond the bar found in Article 11.07, Section 4, the
Court should have considered in its opinion whether Applicant’s now
thirty-seven-year-old claims should be barred by the doctrine of laches,
because the passage of time since his conviction is so great. Even were
it to find that the questions raised in the most recent, but subsequent,
writ application are too important to impose a total bar on Applicant’s
claims, based on the age of this case, a greater degree of skepticism is
warranted. See Ex parte Smith, 444 S.W.3d 661, 665 (Tex. Crim. App.
2014) (quoting Ex parte Young, 479 S.W.2d 45, 46 (Tex. Crim. App.
1972)) (“‘While we do not desire to make an absolute rule concerning
habeas corpus petitioners who do not assert their legal remedies
promptly, we nevertheless feel that in some instances, a petitioner’s
delay in seeking relief can prejudice the credibility of his claim.’”). A lot
of water, and a lot of memories and evidence, go under the proverbial
bridge in thirty-seven years. The Court should bear that in mind and
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address it before overturning such a longstanding judgment.
I respectfully dissent.

FILED: May 15, 2024
DO NOT PUBLISH