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 postconviction 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