EX PARTE Richard Mark BOWMAN, Appellant
NO. PD-1375-14
Court of Criminal Appeals of Texas.
November 19, 2014
447 S.W.3d 887
would have been recorded by a reporter unless that recording was waived by the attending parties.
By contrast, documents in the record from the trial court, the court reporter, and the parties conclusively indicate the final hearing occurred on September 27 and Pike-Grant did not participate. First, the trial court‘s orders, letters, and docket sheet all confirm that the final hearing occurred September 27 and Pike-Grant did not participate. The court issued an order setting the cause on the non-jury docket for September 27, 2011. The court coordinator then notified the parties the cause was set for trial on September 27. Prior to the hearing, the trial court also granted a motion for Grant to participate by telephone in the September 27 hearing. On the date of the September 27 hearing, the trial court submitted an entry in its docket sheet that the hearing occurred and that “Respondent‘s lawyer filed motion to w/draw—she is not present, but in NY.” Months after signing the divorce decree, the trial court issued temporary orders pending appeal indicating the decree was “entered on November 29, 2011” but that “the previous orders rendered by the Court [occurred] on September 27, 2011.”
Additionally, documents from the court reporter and the parties further confirm that the hearing occurred on September 27 and that Pike-Grant did not participate. The reporter‘s record for the September 27 hearing indicates it was the “final hearing” and neither Pike-Grant nor her lawyer were present. Prior to the hearing, Grant moved to participate in the September 27 hearing by telephone. And Pike-Grant‘s attorney notified the court coordinator of his inability to attend the September 27 hearing due to other court settings and that he had not heard back from Pike-Grant. Taken together, we believe this record conclusively supports the recital that the final hearing resulting in the divorce decree occurred on September 27, and neither Pike-Grant nor her attorney participated in the hearing.
Accordingly, the court of appeals erred in concluding it had no jurisdiction over Pike-Grant‘s restricted appeal because she was present at a final hearing on November 29. Pike-Grant raises other issues here the court of appeals failed to reach. Accordingly, without hearing oral argument,
Bridget Holloway, Assistant District Attorney, Houston, Lisa C. McMinn, State‘s Attorney, Austin, for the State.
OPINION
Per curiam.
Appellant was convicted of driving while intoxicated in 2005. In 2013, he filed a habeas application pursuant to
The State has filed a petition for discretionary review of this decision, arguing, in its second ground, that it was not required to raise laches in the trial court in order for it to be addressed on appeal, and that laches applies to
In Smith, we held that a court may consider sua sponte whether laches should bar an applicant‘s habeas claim. We reasoned that habeas is governed by the elements of equity and fairness, and those elements require a consideration of unreasonable delay. We clarified, however, that delay alone is insufficient to establish the laches bar. Instead, “courts should consider, among other things, (1) the length of applicant‘s delay in requesting equitable relief, (2) the reasons for the delay, ... (3) the degree and type of prejudice borne by the State resulting from applicant‘s delay ... ,” and (4) “whether the delay may be excused.”
Pursuant to Smith, the State is correct that laches applies to
The Court of Appeals correctly noted, however, that “[l]aches is a question of fact” and, in
Accordingly, we grant the State‘s petition for discretionary review on ground two, vacate the judgment of the Court of Appeals, and remand this case to the Court of Appeals for proceedings consistent with this opinion. The State‘s first and third grounds are dismissed without prejudice.