Learned friends of the Appellate Bar-

Defendant filed a writ alleging ineffective assistance of counsel alleging failure to fully investigate exculpatory matters and listed witnesses that were available to testify on behalf of the accused.

Tex. Crim. App. ordered findings of fact and conclusion of law. Trial Court ordered the defense counsel to prepare an affidavit addressing the issues presented. Defense Counsel sought an extension of thr trial court order seeking more time due to co-counsel not in the practice of law, and he had moved offices and needed more time. The trial court was about to prepare a request for extension of time from the C.C.P. based upon defense counsel's valid dilemma. The defense counsel passed away on Friday with the issues unadressed.

I am going to file an amended answer suggesting our position is compromised due to the delay in filing the writ and the lack of ability to pursue the issues due to the death of the trial counsel.

Does anyone have other sugestions? Have you been through this before?

Thanks in advance for the help.

bob cole

If time between the conviction and filing of the writ is very lengthy you might want to raise laches.

In a similar case about a decade ago, I had a writ filed within days of defense counsel's death. An attorney represented the deceased attorney's interests and through the trial court and that attorney we did access the deceased attorney's records concerning the applicant in the particular case. The records were not much use so I raised laches. The CCA denied the writ without explaining--we must have prevailed on the laches argument.



JAS

Thanks.

How long did it take the defendant to realize this injustice had occurred?