Pointer, Jeffrey Shawn ( 2019 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-84,786-01 & 84,786-02
EX PARTE JEFFREY SHAWN POINTER, Applicant
ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS
CAUSE NOS. CR07-300A & CR07-301A IN THE 235TH DISTRICT COURT
FROM COOKE COUNTY
Y EARY, J., filed a concurring opinion in which S LAUGHTER, J., joined.
CONCURRING OPINION
The Court denies Applicant relief on a claim of illegal sentence premised on its recent
holding in Ex parte Pue, 552 S.W.3d 226 (Tex. Crim. App. 2018). As the Court’s per curiam
opinion today makes clear, however, Applicant did not—strictly speaking—make such a
claim. Even if he has somehow inferentially made a claim of illegal sentence of the kind we
recognized in Pue,1 he waited eight years from the time of his convictions to raise it.
Because I do not believe that such an illegal-sentence claim ought to be regarded as
1
We filed and set this writ application and ordered the parties to brief the issue of whether
Pue should be applied retroactively. Ex parte Pointer, Nos. WR-84,786-01 & WR-84,786-02, 2018
WL 4905424 (Tex. Crim. App. Oct. 10, 2018) (not designated for publication). Concluding that
Applicant has not made an illegal sentence claim in any event, the Court finds it unnecessary to reach
this issue after all.
POINTER — 2
available to raise for the first time in a post-conviction application for writ of habeas corpus,
and because, in any event, such a claim should be regarded as barred by laches if an applicant
waits too long to raise it, I concur in the Court’s judgment to deny Applicant relief in this
case. See Ex parte Westerman, 570 S.W.3d 731, 732–35 (Tex. Crim. App. 2019) (Yeary, J.,
dissenting) (arguing that a faulty-enhancement illegal sentence claim must be preserved by
a trial level objection, and is also subject to rejection under the doctrine of laches). And I
would not grant him relief on any of the claims he actually does make in his post-conviction
writ application for the reasons the Court gives today.
FILED: December 11, 2019
DO NOT PUBLISH