*1 damage otherwise the house not to flood or obligation undertak- independent plumbing
en subcontract with the
builder, damages allegedly caused duty beyond of that breach extend any anticipated
the economic loss of bene- plumbing
fit under the contract. appeals
Because the court of erroneous-
ly pleadings concludes that the and sum-
mary judgment negate evidence the exis- claim,
tence of negligence grant and,
petition for review hearing without argument,
oral ap- reverse court of
peals’ judgment and remand the case to Tex.R.App.
trial court. P. 59.1.
Ex Parte Alberto Giron PEREZ.
No. AP-76800. Appeals
Court of Criminal of Texas.
8,Oct.
720 evidentiary of development appli
court for claims, opinion cant’s this Court issued an in to laches approach which revised as that doctrine in the context of a applies post-convic for a long-delayed application parte tion of See Ex writ habeas Perez, 206, (Tex.Crim.App. 2013) (adopting Texas common-law doc proper post- trine of laches as standard proceedings). conviction writ then re We manded the case to the trial court a second time for claims consideration of this On re approach. revised mand, findings the trial court entered and, fact and conclusions of law based on unjustified unreasonable and application preju State’s assertion that it has been delay, diced as a result of the it recom Having mended that relief be denied. re viewed the after weighing record and considerations, agree relevant findings with the trial court’s and conclu We, therefore, deny sions. relief. History I. Procedural Application A. Files Writ Perez, pro Alberto Giron se. Nearly Twenty Years After Conviction Jr., Earl Griffin for Alberto Giron Perez. applicant was convicted of mur Messinger, John R. of Texas. State eighty-five years’ der and sentenced to imprisonment. Ap The Seventh OPINION peals affirmed conviction in 1992. Per ALCALA, J., opinion delivered (Tex. State, ez v. No. 07-91-00225-CR KELLER, P.J., the Court which 9, 1992). App.-Amarillo Oct. In September PRICE, WOMACK, JOHNSON, 2011, applicant post-convic filed his initial HERVEY, COCHRAN, KEASLER, application tion for a writ of habeas cor JJ., joined. pus, in which he raised several claims of post-conviction application counsel, In his for a appellate ineffective assistance of corpus, including Alberto Giron Per- counsel’s failure to writ of raise merito ez, points appeal, raises claims of ineffective rious of error on failure applicant, appellate timely notify applicant assistance of counsel and seeks that his conviction permission to file an out-of-time had been affirmed on and failure to appeal, discretionary purpose applicant peti review for the advise to file a appealing his 1991 Af- murder conviction. tion for review. In Novem ter application applica filed his ber this Court remanded and after an initial the trial to obtain affidavits remand to trial tion to court findings addressing appli and to make fact [ ] has known of his right to PDR, cant’s claims. See No. file se[.]” (Tex. WR-76,604-01, WL 5420849 In response to applicant’s allegations, 2011). Crim.App. Nov. *3 the Cottle County Attorney District remand, On initial trial court re- an affidavit that asserting “the State has appellate ceived affidavits from both coun- prejudiced been by applicant’s delay in the County sel and the Cottle District Attor- filing of his explained He that writ[.]” affidavit, ney. In his counsel stated that was prejudiced State “because of pas- has “little independent memory of the sage of time inability as well as its to applicant’s events described in writ” and weapon, locate the key eyewit- murder only respond applicant’s could allega- to nesses to the shooting and its reasonable tions “based record on review and [his] expectation that the faded memories of the practice usual Based upon and routine.” witnesses will hamper the State’s ability to time, his “custom and at practice” present a investigator case. The lead ... applicant counsel would have told “that he retired, elderly is and and is now in his had a first appeal right, as a matter eighties.” second a appeal right a was not matter of affidavits, Based on the the trial court and would not file a merit- [counsel] entered findings of and fact conclusions of PDR, though [applicant] less could.” Al- law. Regarding applicant’s claim that he though practice” it was his “usual to send had been deprived right copy of appellate opinion a court’s as a review result of within the time frame for appropriate ineffectiveness, counsel’s the trial court review, seeking discretionary counsel ac- found provide that counsel not “did notice knowledged [applicant] that he “informed or a copy appeal] of the opinion [direct of the [appellate] court’s decision after the the time passed applicant until had time passed [filing] limit had a PDR.” pro submit a se PDR.” The trial court Counsel said he not remember” “do[es] (1) applicant found that “knew be- why applicant timely copy did not receive a fore the decision of the court of appeals appellate opinion. court’s (2) PDR”; that he pro could file a se counsel sent letter “offer[ing] “could have pro filed a se PDR in 1992 had prison bring to visit in the file to [him and] timely counsel a copy furnished of the help him with the decision whether to seek opinion”; “had the information needed (for by further review an out of writ time to file for an early out of time PDR as PDR).”1 explained se Counsel ... but do so until failed to almost applicant “answered offer -with [counsel’s] later”; two decades “failed to show complaint law in with a regulatory that absent conduct [he] counsel’s would agency and civil proceeding, later filed a [timely] filed for [a] PDR[.]” ... applicant which indicated he knew of right respect to seek further review and was With State’s assertion of by denied it failure to prejudice, communi- the trial court concluded that [counsel’s] this, cate.” From prejudiced counsel had the State “infer[red] trial, from the time of or at least hampering since a case prison you preparing record reflects that June coun- week in assist applicant stating, sel sent a letter to bring your I’ll writ of habeas en- regret you your appeal copy I tire file and a the statement of to inform facts was willing you transcript affirmed. I am to visit next with me. law, that, at common the doctrine of laches further concluded that “the retrial.2 It was defined as in its shown that it State has which, appointed because of or claim respond neglect to assert of time and together lapse the events relat- taken with hazy memory of counsel’s causing prejudice other circumstances PDR, prejudice! ] ed to the operates as a bar in a party, an adverse having filed a late by applicant’s caused Also, neglect it is the equity. court of writ, has not acted with and that unexplained for an unreasonable law.” diligence as a matter of reasonable length per- of time under circumstances that relief be The trial court recommended law, mitting diligence, to do what in light denied *4 been done. should have prejudice resulting application Carrio, (citing parte at Ex 992 Id. 210 to the State.3 (Tex.Crim.App.1999); 2 S.W.2d 487 n. application the This Court filed and set Dictionary (6th ed.1990)); 875 Black’s Law the State’s assertion to determine whether (observing also id. at 210 n. 3 see ability in that it would be Texas common-law doctrine of laches con grant if this were to two elements: unreasonable sists of relief was sufficient to invoke the doctrine party, preju delay by opposing Perez, Ex No. AP- parte of laches. See resulting delay) (citing from the Cald dice 76,800, (Tex.Crim.App. 1882284 WL (Tex. Barnes, well v. 975 S.W.2d 2012). May 1998)). application We observed of laches to a the common-law doctrine Approach Revises to Lach- B. Court long-delayed application for a writ of habe- Corpus es in Habeas Context corpus appropriate in of the as this Court altered equitable nature of both habeas parameters of the doctrine of relief and the laches doctrine. Id. at 210- applies long- laches as it in the context of a difficul 219. We took note several delayed post-conviction typically for a ties that arise when application delays application post- at 208. writ of habeas many years, including conviction relief for stringent we abandoned a test Specifically, attorneys the faded memories of wit applicability for the of laches that had and the loss of evidence and trial nesses required partic- to demonstrate a State records. Id. at 211. that was limited prejudice ularized form of ability respond application, to its to the looked to Although previously we had totality-of-the- adopted and we instead guidance to how the federal courts approach post-conviction circumstances that is consistent in a apply laches should proceeding, acknowledged with the Texas common-law definition that our writ adherence to the federal laches standard explained laches. Id. at 211-12. We attorney’s that coun- 2. Consistent with the district affida- 3. The trial court further concluded vit, finding "[t]he the trial court made deter- sel "rendered effective assistance prejudiced by applicant’s delay State has been points mining which of error he needed to only passage of time but not because of the put [applicant’s] raise in order to forth best inability also because of its to locate the mur- error,” thereby rejecting chance of reversible shooting, weapon, key eyewitnesses der ineffective applicant's claim that counsel was expectation the faded and its reasonable possibly failing all meritorious to raise hamper will memories of the witnesses points appeal. of error on direct State’s a case [on retrial].” had, rigid,” been “too had practice, abandoned the federal laches standard “failed to account for the State’s interest in favor of a strict statute of limitations that finality,” “incompatible and was with fun- was far less favorable to applicants, this principles equi- damental of fairness and Court had continued apply the more standard, ty.” Id. at 208. Under permissive federal laches standard. Id. at requiring showing addition to that the 212-13. was unreasonable as a considerations, Given these law, matter of the State was further re- emphasizing society’s State’s and inter quired demonstrate a particularized est in the finality of convictions after a prejudice form of that was limited to its time, point certain we held that we respond application, there- apply law, would Texas common rather by preventing considering courts from oth- standard, than the federal to define the types prejudice deciding er of material parameters of laches in Texas post-convic apply.
whether laches should
See id. at
tion proceedings.
Id. at
doing
215-16. In
214-15.4 We observed that
this limited
so, we
the requirement
eliminated
prejudice inquiry
“prevented
had
courts
*5
“particularized”
State make a
showing of
from taking
range
into account the full
of
prejudice
was limited to
ability
to
equitable
relevant
considerations” and
respond
application,
to the
and we expand
that,
result,
as a
some
had been
applicants
ed
prejudice
the relevant
inquiry to allow
permitted
post-conviction
to seek
relief
broadly
courts to “more
consider material
“despite
unjustified delays
excessive and
prejudice resulting
delay.”
from
Id. at
that have
the State’s
to
215.
this
Under
“more flexible common-
long-standing
defend
convictions.” Id. at
approach,”
law
we observed that
208,
courts
additionally
We
noted that the
permitted
would be
to consider “anything
federal courts no longer employed the fed-
places
eral laches standard due to the
the State in a less
enactment
favorable
one-year
position, including prejudice
of a restrictive
period
limitations
to the State’s
applicable
petitions.5 ability
defendant,
to federal habeas
so that a court
Thus, although
may
the federal courts had
totality
consider the
of the circum-
standard,
4. Under the federal
upon possible
laches
the State
have had
retrial was "not to be
(1)
required
particularized
make a
gauging
considered” in
whether the State had
showing
prejudice,
preju
of
show that the
requisite showing
made the
prejudice.
Id.
petitioner
dice was
haying
caused
Blackburn,
(citing
at 211 n. 5
Strahan v.
750
petition,
a late
petition
and
show that the
438,
(5th Cir.1985)).
F.2d
441
The State was
diligence
er had not acted with reasonable
that,
required
to demonstrate
as a
Perez,
parte
a matter of law. Ex
applicant’s delay, specific
result of
206,
(Tex.Crim.App.2013) (citing
211
lost,
sources of evidence had been
and it was
Carrio,
486,
992
(Tex.Crim.App.
S.W.2d
488
required
affirmatively
demonstrate that the
1999);
Scott,
683,
(5th
Walters v.
21 F.3d
686
through
evidence could not be obtained
other
Cir.1994)). The federal laches standard fur
Walters,
(citing
sources.
Id. at 212 n. 6
21
type
prejudice
ther limited the
the State
18).
F.3d at 688 n.
"prejudice
could show to
in its
to re
spond
allegations
petition."
in the
Id.
(observing
5. See
any relevant of the cluding “length Equitable Relief II. the reasons for the application, By Laches Barred preju- degree type delay, and the remand, court con- On second the trial delay”). We ex- resulting from the dice hearing, during a live which it ducted plained that testimony from and sever- heard necessary or suffi- single factor is no al who had testified at individuals Instead, engage must in a cient. courts hearing, cant’s trial. After the the trial balancing process difficult and sensitive findings court entered of fact conclu- parties’ over- that takes into account sions of law and recommended considering whether all conduct. deny relief on the basis laches. shown, may a court prejudice has been Specifically, the trial court found that: reasonable inferences from the cir- draw August was convicted on determine cumstantial evidence 29,1991. likely com- whether excessive 2. His conviction was affirmed Octo- reliability of a retrial.... promised 9,1992. ber shown, the State is prejudice If weigh prejudice court must then 3. The mandate issued November *6 against any equitable considerations that 1993 [sic].6 granting militate in favor of habeas re- 17, 1993, was in- applicant 4. On June lief. appellate formed letter from his (citations quotation Id. at 217-18 and Estrada, counsel, Robert that his convic- omitted). marks We further acknowl- tion was affirmed. edged that it would be consistent with applicant 5. This letter informed of Es- reject for a equitable principles court to willingness trada’s to assist him application of laches when the record of a writ (1) applicant’s delay shows that: was speaking Legal 6. After with Inmate “not unreasonable because it was due to a inmates, applicant Services and other justifiable neglect”; or excusable excuse was made aware of the need to obtain materially prej- not be “the State would ap- in order to continue his the record delay”; a result of the or “the udiced as peal immediately sought copy a of is entitled to relief for transcript appeal so that he could his reasons, compelling other such as new evi- Appeals. the Court of Criminal actually dence that shows he is innocent of Although 7. he was aware of or, cases, that he is the offense some it, procure transcript by paying reasonably likely prevail on the merits.” pursued he instead various avenues to Id. at 218. obtain from Estrada. standard, After adopting revised 15, 1993, 8. On November application remanded the to the trial court Estrada as provide applicant a second time to filed motion to dismiss 1993; Finding typograph- the record indicates 6. number three contains a date’s issuance as year in fact issued in 1992. ical error in that it lists the of the man- that the mandate appointed subsequently counsel and be- 19. Applicant’s claim that he would gan grievance process with the State pursued petition out-of-time Bar Association. discretionary review had he known is thus also incredible. 5, 1994, 9. On April applicant filed a se of pro writ mandamus the Seventh 20. Applicant, through his current at- Appeals compel the trial torney, has any disclaimed discovery of upon court to rule his motion to dismiss. new being evidence as a cause for the His asserts a copy was sent delay. Appeals. Court Criminal 21. The Cottle County Sheriffs Office 10. At point prior September some longer is no in possession evi- 1995, applicant, with the assistance of dence or documents related to the inves- inmate, fellow filed a se lawsuit tigation of this case. against Estrada in Anderson County, 22. The investigator, lead retired Texas Texas. Hickman, Ranger Leo 80s, is in his late 15, 1995, 11. September On the judge health, poor is in unlikely to be ordered produce applicant’s Estrada to appear or, able to at a second trial if he file and the transcript from his trial. did, to have any independent recollection 9, 1995, 12. On applicant, November of the investigation. inmate, with the assistance of a fellow Poteet, 23. Clarence Lee one of two filed a pro notifying se motion the court eyewitnesses to the murder who testi- noncomplianee request- Estrada’s trial, fied at recalls most of what he saw ing sanctions. and could refresh memory his based on requested received the prior testimony. documents the following day, November 10,1995. wife, Poteet, Betty Fay [Poteet’s] Applicant was aware of with him at the time petitions [of but has memory problems murder] review and writs of due *7 to medical issues. corpus early as as June of 1993. Applicant 15. did not file a writ of ha- Holloway, 25. Karl a retired DPS beas corpus requesting an out-of-time Trooper responded scene, who petition for discretionary review until has some recollection of his role at the September 2011. scene, but his role was minimal. 16. did not any request make 26. Most of the people who testified at attorney for another from the trial court located, trial in 1991 could not be includ- or seek the help family of his in obtain- ing all of the professionals medical who ing attorney. an participated autopsy on the vic- Applicant’s pro filings various se tim. demonstrate familiarity with the legal 27. To the extent that any witnesses system ability to file legal docu- would be deemed pur- unavailable for ments on his own behalf. poses Clause, of the Confrontation reci- 18. Applicant’s claim that he did not tation prior testimony per- is far less know about petition his [file] testimony. suasive than live for discretionary review or the writ pro- securing cess for an petition out-of-time On the basis of these findings, the trial is incredible. court concluded that: so that he would “be able delay pursuing an out- records Applicant’s to.follow understood that up appeal,” review with [his] petition
of-time (3) instead purchased,9 could be unjustified. record unreasonable and is both for his records asking contacted counsel (witnesses, of evidence 2. The [loss] indefinitely pro- for counsel to and waited documents, memories, physical evi- copy transcript. him a of the trial vide dence) of over intervening period in the The record thus reflects twenty-two years almost a writ seeking for his explanation the case and the State’s rests on his claim that he of habeas reliability of likely made more record, opposed lacked access to the compromised. a retrial would be lacked awareness of the a claim that he society have a 3. Both the State and availability review. To the ex- of further finality of this interest in the strong that his applicant suggests tent conviction, over which was affirmed justifiable primarily because it was due years ago. twenty-one procedural the proper his unawareness of no reasonable likelihood 4. There is review, we vehicle which seek prevail will merits finding the trial court’s that such defer to discretionary review. of his appli- a claim is not credible in law or There is no other reason demonstrating filings cant’s various se not to laches in this case. equity apply and his familiarity legal system with the independent We have conducted legal file documents on his own and, having the record deter review of behalf.10 findings and that the trial court’s mined record, Furthermore, accept even were we to by the supported conclusions are record, diligently sought claim that he viewed adopt we them.7 rights during to assert his the several entirety, reflects that understood years immediately following the affirmance that he could seek further review of his conviction, note the record is early as but waited of his conviction as later, years anything suggest devoid of nearly twenty until to file any steps cant took whatsoever to assert present application post-conviction rights years approxi- between the appli relief.8 The record also reflects that copy mately he needed a 1997 and when cant believed Reed, Applicant: didn’t I ... didn't know. It 7. See Ex anything (observing exist. I didn't know about the (Tex.Crim.App.2008) *8 Appeals. ordinarily Court of [Criminal] Court "will defer” to trial court’s findings supported and conclusions that are hearing Applicant's testimony at the habeas record). by the that, inquired with the indicates During testimony, applicant's the Wilbarger County pur- Clerk about the cost of following exchange indicating occurred chasing a record. He stated that he would right pursue applicant was aware of his purchased have the record at that time “if review of his conviction: money.” further the had [he] you What did want to do [counsel] State: See, passed]? e.g., parte Thompson, S.W.3d for a PDR had the time [after (Tex.Crim.App.2005) (observing my Applicant: That he would work with 417-18 that, way, the habeas court is in a better That I could be able to "because documents. credibility up appeal. position to make determinations of my follow with [credibility] right find- you you knew that had the ... we should defer to those State: So record”). forward, by you? ings they supported the go didn't if are by asked the which present application.11 compromised When reliability the hearing any State at the habeas whether there future trial proceedings. See any justification delay, appli- for the S.W.3d at 219 (stating laches answered, apply should cant “If I knew how to read ... bar to relief “when an delay unreasonable [English], preju- and write I wouldn’t have need- State, diced know, thereby the rendering ed Because I don’t I had to consid- help. eration of inequitable”). his claim depend people.” on other Later in the trial court also took into account hearing, when asked the same question society’s State’s and interest in finality again, applicant said that he “didn’t know of this now law”; twenty-three-year-old that he “didn’t know” that convic- writs factor, tion as a “existed”; relevant and we agree of habeas that he “didn’t that, with the trial court’s assessment un- anything know about the [Crimi- circumstances, der these and that factor Appeals”; he had filed his nal] weighs heavily against applicant’s request application as soon as he found out about (observ- equitable relief. See id. at 218 application process the writ from another that, ing under expanded prejudice inqui- inmate in 2010. Even were we to accept ry, courts are true, “permitted to consider they assertions as are in- State’s and society’s interest in the justify finality sufficient to applicant’s inaction and of a conviction in determining neglect for a of more whether period than fifteen laches should apply”). Although applicant years, during period which time a court has attempted justify delay by his may to, claim- reasonably expect at ing that he least, was unaware of the very proper make diligent inquiries and procedural by vehicles which to take to educate steps himself about the Court, challenge his conviction in this proper procedures seeking additional justifications find that those are inade- review. Because the record here reflects quate to warrant a grant equitable relief applicant, although aware of the avail- in light of the excessive review, ability of further no inquiries made any meaningful cant’s failure to take action regarding proper procedures to follow to assert his rights during past decade nearly twenty years, we determine that and a half. Agreeing with the trial court’s ignorance his claim of of the law is inade- assessment that there are no other equita- quate lengthy delay. to excuse his ble weigh considerations that in favor of with the accordance trial court’s find- relief, granting we hold that the applica- conclusions, ings ap- we conclude that tion is thus the equitable barred doc- plicant’s delay unjusti- is unreasonable and trine of laches. Relief is denied. in light diligently fied of his failure to rights assert appropriate within an MEYERS, J., a dissenting opinion. period time once he realized that he had MEYERS, J., dissenting opinion. filed a deprived been to seek discre- tionary agree review. We further with the have never We attached kind of relief, trial court’s conclusion that the State has legal, whether or to a de- been as a result of the prosecution fendant’s to defend his *9 light of the faded memories of witnesses years when the State files an indictment evidence, and the lack of available both of after a crime has occurred. the While against testified that from 1993 to 1997 cant’s civil law suit counsel in purpose called and wrote counsel for the that counsel turned over "a said records, bit, obtaining everything” but counsel “never little but not responded.” appli- pursue appeals. After the conclusion of believed he needed to previously there are new and un- to indict within the stat- where required State is made, being available claims but makes no right or forfeit the ute of limitations Subsequent that it mention of a time bar. writs requirement is no prosecute, there only significant after time has not hindered the defen- are filed show that it has Therefore, by as indicated the by passed. himself its de- ability to defend dant’s for one Here, only requirement stat- fact that the is similar lay. applicants present- previously to them in that that the claim was not applicable ute of limitations ed, clearly importance. time not of to file their writ within is they typically need Also, indicated that it Legislature But the the has the time of their confinement.1 11.07, than only appli- expand wishes to Article rather majority holds that not this now by it. This is evidenced its addi- cant, prison, must contract every individual but 11.073, gives appli- tion of Article which for writs of habeas applications file their obtaining cants an additional avenue for they will corpus possible, as soon as or be fact, only expanded relief. In it not the right to file the subject forfeiting their relief, grounds path it created a application. granting relief on a nonconstitutional ba- gone to Legislature and Court have Obviously, Legislature sis. if the wished ensuring that defendants great lengths place some kind of time limit on an trial, rights during are admonished of their writ, applicant’s filing capable of a it was majority now indicates to fu- but so, not doing but did not. We should be they not applicants ture do need something taking upon ourselves do explicitly right waive their to file an could have done and Legislature corpus, they as cation for writ of chose not to.2 They will rights. must with their other today’s I also believe that decision could writ, often just right forfeit their us, appeal, allow the State to ask to do Here, by delaying. unknowingly, simply exactly what is done here. The State lawyer had a Applicant is illiterate and employ argument could the same that is ineffective assistance likely guilty who is here, begin asking used defen- counsel, majority does not feel yet dants’ to be based appeals upon dismissed As Applicant’s delay justified. illustrat- disap- the fact that certain evidence has case, implementation ed of this peared destroyed or was after the convic- equitable analysis taking away legis- and, therefore, tion the State cannot latively given right corpus, to habeas equally unjust- the case. This would be as to, is a which all individuals are entitled ified as the current decision is. great injustice. reasons, foregoing respectfully For the I Further, has not as- Legislature dissent. signed any applica- time limits on tions for writs of habeas Texas Procedure article 11.07.
Code of Criminal fact, Legislature Section as- subsequent writs are allowed
serts that However, penalties includes both enhanced for future convictions "confinement" physical "any con- confinement and collateral qualified purposes "confinement” for resulting sequence from conviction.” Tex Article 11.07. 3(c). § For exam- Code Crim. Proc. art. 11.07 ple, parte Harrington, in Ex Legislature going I bet the is not to be a (Tex.Crim.App.2010), we held that 457-58 legislation happy camper about this new conviction, consequences job from a such as majority placed upon Article 11.07. office, loss, public loss of to run for