EX PARTE SALAZAR v. << (2025)

ORDER

A jury convicted Applicant in 2004 of aggravated assault on a public servant and assessed a seventy-year sentence. There was no appeal. In 2023, Applicant filed a pro se application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07. The trial court finds that habeas relief is warranted and that a new trial should be granted. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The trial court also finds that Applicant was denied a direct appeal through no fault of his own. See Ex parte Axel, 757 S.W.2d 369 (Tex.Crim.App. 1988); Ex parte Crow, 180 S.W.3d 135 (Tex. Crim. App. 2005).

This Court has made an independent review of the record and disagrees. Relief should be denied because Applicant's claims lack evidentiary and factual support, and the excessive eighteen-year delay in filing has prejudiced the State's ability to respond. See Ex parte Maldonado, 688 S.W.2d 114 (Tex. Crim. App. 1985); Ex parte Carrio, 992 S.W.2d 486 (Tex. Crim. App. 1999); Ex parte Perez, 398 S.W.3d 206 (Tex. Crim. App. 2013); Ex parte Smith, 444 S.W.3d 661 (Tex. Crim. App. 2014). Applicant's habeas application is therefore denied.

CONCURRING OPINION

Applicant has filed this habeas application more than 18 years after he was convicted. A hearing was conducted, but only Applicant and his former trial attorney testified. The trial attorney remembered nothing about the case, and Applicant testified in vague generalities. Because of the passage of time, the trial attorney's case file is gone and a court reporter's record of the trial cannot be located. Issuing rather vague findings, most of which are clearly unsupported by the record, the habeas court recommended granting relief. In issuing its findings, the habeas court neglected to even mention a competency report that conflicts with those findings. To the extent Applicant's vague testimony could be construed as supporting a conclusion that he was incompetent at trial, it was self-interested and refuted by a competency report that we have no reason to question. As for his right to appeal, Applicant has not shown that he even requested an appeal, and we cannot, under the record as it now exists, nail down what exactly happened regarding that matter. And, Applicant gives only vague justifications for the delay in filing a habeas application—mental illness and “learning to write again.” Under this record, the Court appropriately denies relief because Applicant has not shown that any of his claims have merit. And even if he had made such a showing, relief would be barred by laches. I write separately to explain in detail what is wrong with the habeas court's findings and why Applicant is not entitled to relief.

I. BACKGROUND

A. Trial Record

1. Indictment

On September 9, 2003, while serving sentences for murder, Applicant assaulted a government-employed psychiatrist. He was indicted for assault on a public servant.¹

2. Competency Report

On November 2, 2004, Dr. Floyd Jennings issued a competency report based in part on a clinical evaluation conducted a few days earlier. In that report, he explained that he interviewed Applicant for approximately an hour and reviewed numerous medical records. The report explained that Applicant consented to the interview after being advised of various rights.² The report discussed a number of statements made by Applicant to Dr. Jennings. According to the report, Applicant talked about, among other things, the following:

• being 35 years of age;

• serving a 60-year sentence for two counts of murder;

• now being charged with assault on a public servant;

• being the second of seven children;

• receiving a GED in prison;

• being raised in foster homes and group homes;

• sustaining a head injury after jumping from a fence;

• being stabbed numerous times in a prison incident;

• denying a history of serious medical illnesses;

• responding, “That's what you said about me,” when asked whether he had a bad relationship with the prison doctor he assaulted;

• mentioning the term “plea bargain” and saying that it involved giving up his right to a jury trial;

• using the terms “waive my rights”, “self-defense”, and “intentional” in proper fashion;

• saying, in response to a question about whether he knew the incident could lead to both prison disciplinary proceedings and a free-world prosecution, “Sure, it doesn't take an Einstein to know that, this is a prison”;

• adding to the “Einstein” comment, “But I'm not saying I intentionally done it”;

• discussing the sequence of events that comprised the incident;

• describing the prison doctor's behavior and words during the incident;

• often saying, “I don't know,” when asked about the role of his attorney or the prosecutor, after having spoken very clearly about a variety of legal issues;

• expressing fear that family members might be subject to perjury charges in his original trial;

• saying about his attorney, “I don't know his job. I don't know what he does”;

• saying, when asked what would happen if his attorney were successful, “I don't know. I've had better!”;

• saying, “There is a lot of things they sand [sic] for ․ my lawyer defends me, OK?”;

• saying, “A judge or jury decides” and that the jury is “people who sit and listen ․ they are asked questions before the trial starts, after they listen.”

The report described Applicant's speech as follows: Applicant spoke “in an unusually articulate fashion that belies his history of reported mental disturbance.” His speech was “normal in rate, tone, and volume, but filled with circumlocutions and extreme evasiveness.” “It was almost impossible for him to answer a question[ ] directly, answering questions with questions, or attributing the answers to others.” After answering basic demographic questions, Applicant became “extremely defensive.”

The report concluded that, despite a reported history of auditory hallucinations, Applicant's present thinking appeared to be absent any sign of delusions or hallucinations. And this was despite the fact that “he has been off psychotropic medications for an extended period.” The report further concluded that “there are few to no signs of active illness other than his emotional distance, oddness, and strange, evasive speech.” The report concluded that, although Applicant was mentally ill, the predominant psychological feature affecting his behavior was antisocial personality disorder, with schizophrenia as secondary. With respect to whether these two psychological features affected his competency, the report said, “The former, however, is irrelevant to a competency determination and the latter is not in a powerfully active state so as to interfere with his ability to have a rational and factual knowledge of the proceedings against him, or to prohibit his engaging his attorney with a reasonable degree of rational understanding.” The report finally concluded that Applicant was competent to stand trial.

3. Trial

Applicant had a contested trial before a jury. However, due to the passage of time, no reporter's record of the trial can be located.

The habeas record does contain the jury charges for both guilt and punishment. Notably, the guilt-stage jury charge instructed the jury on the charged offense of assault on a public servant and on the lesser-included offense of assault. Language in the jury charge told the jury to convict of this lesser-included offense if it found that the assault occurred but it had a reasonable doubt about whether Applicant knew the victim was a public servant. Although there had been a motion for an expert examination on the issue of insanity, no such examination appears in the record, and the defense of insanity was not included in the guilt-stage jury charge.³

4. Conviction

On December 1, 2004, after jury verdicts on both guilt and punishment, Applicant was convicted of assault on a public servant and sentenced to 70 years.⁴ Because Appellant committed this offense in prison, his sentence was stacked on top of his prior 60-year murder sentence.⁵ A notation on the judgment said, “Notice of Appeal filed December 1, 2004.” That same day, the trial court issued a certification of the defendant's right to appeal, stating that the case was “not a plea-bargain case, and the Defendant has the right of appeal.” Applicant and his attorney signed the certification. The record contains no notice of appeal, nor is there any record of appellate proceedings.

B. Habeas

1. Application

Applicant filed his current habeas application in February of 2023. He raised two grounds. His first ground, titled, “Ineffective assistance of counsel,” alleged in its entirety:

Plaintiff was never adequately advised, and attorney failed to raise a defense or filed [sic] for a direct appeal. The competency hearing was improperly handled. This denied a fair trial due to attorney's actions. The attorney also failed to bring a lesser charge to the court. The doctor is not a public servant.6

The second ground, titled, “Judicial bias and due process violations and equal protection of the law,” alleged in its entirety:

The judge allowed several violations in the trial that show judicial bias, and 5th, 6th, and 14th Amendments to the United States Constitutions were violated.

2. Applicant's Testimony

The habeas court held a hearing on March 15, 2024, at which Applicant testified. Regarding the incident, Applicant said that “the jerk got in my face, telling me to put my hands behind my back, because I was handcuffed.” When asked what he recalled about “hitting somebody,” Applicant responded, “Nothing.” When asked if there was an allegation that he was insane at the time of the attack, Applicant answered, “Yes, sir.”

When asked about whether he was examined for competency to stand trial, Applicant said, “I remember meeting with specialists over here and asking me, no words.” When asked what questions did the competency expert ask him during the examination, Applicant responded, “He didn't ask me none.” When asked what he told the expert, Applicant said, “Oh, I didn't say nothing to him.”

When asked whether his mental health was better now than when he was convicted, Applicant responded that he “learned how to write again,” though he “still don't know how to read that good.” Habeas counsel followed up by asking, “Were you in a better mental health condition when you filed the writ than when you were in trial?” Applicant replied, “No, not really. I'm still taking medications. I'm still a little hallucinating a little and little voices and stuff.” When asked whether his mental condition was better when he filed the writ or earlier, Applicant responded, “No, I know, when I filed the – that application.” But when asked what his mental condition was now compared to when he filed the application, Applicant said his condition was “practically the same.”

When asked what due process violation he suffered, Applicant said:

Well, I didn't have a chance. I didn't have to say, I didn't have a chance. Well, I had a chance, but I was still -- I was still suffering. I was still suffering. I was still sick from my illness. I couldn't -- I couldn't relate to what was going on.

On cross-examination, the State asked why Applicant was here. Applicant said he wanted an appeal. When asked what the basis for an appeal was, Applicant responded, “Uneffective assistant of counsel.” When asked what trial counsel should have done, Applicant said he did not object, that “they plea-bargain where they limited it to a grand jury,” and that the jury gave him 70 years. When asked what trial counsel did wrong, Applicant said that he did not ask any questions about what Applicant was being tried for and that they “just charged me with some new charges.” When asked who helped Applicant write his writ of habeas corpus, Applicant rambled about the writ but ultimately said that he wrote it himself. When asked what constitutional right was violated at trial, Applicant said:

Well, I wasn't given to the judge to do nothing for -- on my behalf. I wasn't -- I wasn't given a chance to -- in my interviews and all that. And the judge has said because I was competent or uncompetent. I was still suffering from my illness and nobody gave me a bit to look out or talk for myself. Everybody talked for me.

When asked why it took so long to file his writ, Applicant responded:

Because I was still going through -- I was still suffering. I was still failing on myself and all that kind of stuff, through those years. I was still looking into the -- into the case and all that stuff. I had questions about who my judges were, my lawyers and all that stuff, because I -- so I could see like the rights and sit down and get some help. I was still going through my illness.

On redirect, habeas counsel asked what Applicant remembered about the time of the alleged attack. Applicant responded that he just remembered taking off handcuffs and hallucinating. When asked about his ability to communicate with the mental-health person who met with him at trial, Applicant said, “No, he don't -- he didn't ask me questions or answers.” When asked whether he was in a better condition now than at trial, Applicant said, “It's hard for me to say, right? I'm not a doctor.” When asked whether he would have been able to write a document when he was at trial, Applicant responded, “No, sir.” Habeas counsel also asked if an attorney was appointed for appeal, and Applicant responded, “No, sir.” When asked whether he knew if State Counsel for Offenders did appeals for their trials, Applicant said he did not and said he “ringed them several times for information on this case right here.”

3. Trial Counsel's Testimony

Trial counsel did not remember the case at all. He said he couldn't say there wasn't an appeal because there was a notation on the judgment that a notice of appeal was filed. Counsel could not find any documents pertaining to Applicant's case in the files for State Counsel for Offenders.⁷ Due to retention policies, the case file would have been destroyed after the passage of as much time as occurred in Applicant's case. When asked if the case file would have still existed had the writ been filed 15 years ago, counsel said it would.

Counsel talked about his usual practice of telling convicted defendants, after jury verdict at the courthouse, that the deadline to file a notice of appeal was 30 days, or 90 days if a motion for new trial was filed. He said he would talk to a defendant about potential points of error that could be raised on appeal and “what they might expect as far as the appellate review would go.”

Counsel also testified that he found a page in the offense report that said the victim was a psychiatrist employed by the University of Texas Medical Branch. And he testified that, if there was a lesser-included offense in the jury charge, “that request probably came from the defense.” He speculated that maybe the argument was that Applicant did not know that the psychiatrist was employed by a governmental hospital.

Counsel also suggested that the psychologist who conducted the competency evaluation had died, though counsel identified Dr. Jennings's first name as “Laurie” rather than “Floyd.”

4. Habeas Court's Findings

The habeas court issued findings of fact and conclusions of law that were mostly in Applicant's favor and recommended granting relief. I will address the specific findings and conclusions in the analysis section.

II. ANALYSIS

A. Applicant's habeas allegations in his application are insufficient.

A post-conviction habeas applicant must “allege specific facts so that anyone reading the writ application would understand precisely the factual basis for the legal claim.”⁸ Applicant failed to do that. He said he was not adequately advised but did not explain what advice should have been given. He said counsel failed to raise a defense but did not explain what defense could have been raised. He said counsel did not file a direct appeal, but he has not alleged that he requested that a direct appeal be filed.⁹ He said the competency hearing was not properly handled, but he did not say what specifically his attorney did wrong, nor did he say how he was denied a fair trial. He said that his attorney failed to request a lesser offense, but the only fact he alleged in support of being entitled to a lesser offense was the claim that the doctor was not a public servant, and he alleged no facts to suggest why the prison doctor would not be a public servant. For his judicial bias claim, Applicant alleged that the judge allowed “several violations” but did not say what the violations were, how they violated the constitutional provisions he cites, or why they would lead to a conclusion that the judge was biased.

But, despite the inadequate pleading, the habeas court held a hearing to investigate those claims. Ultimately, the habeas court made findings on the competency, no-defense, lesser-offense, and appeal claims. I will assume arguendo that the habeas court's decision to investigate and issue findings on those claims moots Applicant's failure to allege sufficient facts, though, of course, he would still have to prove them. To the extent Applicant made claims not embraced by the habeas court's findings, those claims are validly rejected because he has failed to meet his burden to allege and prove facts entitling him to relief.¹⁰

Also, in his judicial-bias claim, Applicant alleges that the trial court committed “violations” at trial. That would appear to make this claim a record-based claim that is not cognizable on post-conviction habeas.¹¹

B. The record does not support the habeas court's findings on the competency claim.

The habeas court issued a finding and a conclusion that Applicant did not speak to the mental health expert conducting his clinical interview:

F2. Applicant Edward Salazar did not speak to his psychological examiner at the time of trial.

* * *

C2. Applicant Edward Salazar's silence at the time of his psychological interview at trial should have put a reasonable psychologist on notice that Salazar was not competent to stand trial.12

These statements are not supported by the record. It is true that Applicant gave general, vague testimony that he did not talk to a “specialist” that he interviewed with. But that testimony simply does not stand up in the face of the very specific references in the competency report to the numerous statements Applicant made to Dr. Jennings. For Applicant's testimony to be true, Dr. Jennings's report would have to be a lie. It would mean that the doctor made up a bunch of statements attributable to Applicant—a mind-boggling effort. And if the report really did fabricate all the statements attributed to Applicant, the likelihood of being caught in such a blatant fabrication would seem to be high. But Applicant has not given us any reason to think that Dr. Jennings lied in his report when he detailed what Applicant told him. Applicant is not raising a false evidence claim, nor has he pointed to any misconduct, much less a pattern of misconduct, that would give rise to an inference of falsity.¹³

As for the habeas court's conclusion that Applicant's “silence ․ should have put a reasonable psychologist on notice,” the findings failed to even mention Dr. Jennings's report, which said Applicant was not silent and, in fact, made numerous statements. This failure, by itself, renders the findings invalid. Given this habeas record, if it really were true that Applicant was silent during the clinical interview, the problems with the expert would be far more serious than failing to see a red flag. The natural conclusion to draw from this record is that the habeas court did not read the report. But whether or not it read the report, the habeas court's conclusion, under this set of findings, is flawed, giving this Court, as the “ultimate factfinder,” the authority to make contrary or alternative findings or conclusions.¹⁴

In addition, this Court has pointed out that there are times when a defendant's self-interested statements are insufficient to support a grant of relief.¹⁵ The Court said this in the context of the passage of time,¹⁶ which is also a factor here. Over 18 years passed between the time Applicant was convicted and when he filed his habeas application. Applicant's trial counsel does not remember the case at all and so cannot comment on the expert's report or on any opinion he might have had about Applicant's competency from his own observations. This rather lengthy passage of time also means that it is possible that Applicant does not remember the events in question. At the habeas hearing, Applicant testified to not remembering his actions during the incident, yet he wants us to believe he remembers the competency evaluation. And he wants us to believe that he was incompetent during that evaluation but remembers it. Applicant's story does not add up. And while an applicant's live testimony can be the sole basis for upholding a habeas court's decision, at least in the Article 11.072 context when a trial habeas court is the ultimate factfinder,¹⁷ that does not mean that an applicant's live testimony will always be sufficient to support a habeas court's recommendation, especially in a proceeding in which this Court is the ultimate factfinder.¹⁸ This record contains plenty of reason to find Applicant's testimony insufficient.

The habeas court also found that Applicant was actually incompetent during his trial:

F3. Applicant Edward Salazar was hallucinating at the time of his trial.

F4. Applicant Edward Salazar was so medicated at the time of his trial ․ to be incapable of communicating with his counsel or expert witnesses who might be favorable to him.

Let's start with finding four. Applicant did suggest he was medicated at some point in time, but there is no evidence in the habeas record that Applicant was medicated to the point where he could not talk to counsel or an expert. In fact, Applicant made only one reference to medication in his habeas testimony—that he was “still taking medication” at the time of the habeas hearing. Obviously, Applicant was able to communicate at the habeas hearing, despite taking medication.

And Dr. Jennings's report said that Applicant was not taking medication at the time he was evaluated and had not been for some time. While it is possible that Applicant was placed on medication after the report and before trial, Applicant did not specifically testify to that. Applicant's claim that he was “still taking medication” might just refer to him taking medication now in addition to some unspecified time in the past. He was responding to a question about whether his mental condition was better when he filed the writ than at trial, but he did not squarely answer that question, instead testifying to his then-current mental state (at the habeas hearing).

Applicant did testify that he was “still hallucinating” when asked about his mental condition at trial. He further said, “I was seeing things. Spirit things.” But he also said that he was “still a little hallucinating” at the present time. In fact, he made the statement about present hallucinations right after answering, “No, not really,” to whether his mental condition had changed between the time of trial and the filing of his habeas application. And when asked if his mental condition had changed between when he filed the application and the date of his habeas testimony, he answered that he was “practically the same.” So, Applicant's testimony was that his mental condition has been constant.

The constancy of Applicant's mental condition, combined with his allegation of incompetency at trial raises questions about his habeas testimony. If Applicant was incompetent at trial and his mental condition has not meaningfully changed, then he would be incompetent at the habeas hearing. Would he even be competent to testify at the habeas hearing?¹⁹ Even assuming he was not barred from testifying, how would we treat the credibility of a testifying incompetent defendant? And here, he is the only source of any evidence that he is incompetent. So if we cannot trust his testimony, because of his alleged incompetency, then he has no evidence.

What seems far more obvious, though, is that Applicant was competent at his habeas hearing, and so, if, as he said, his mental condition had not meaningfully changed, then he was competent at trial as well. In any event, having some hallucinations does not necessarily make someone incompetent to stand trial under the legal definition.²⁰ Applicant suggested that his hallucinations were both visual and auditory, but no attempt was made to delve into the severity of these alleged hallucinations. And Applicant said he was being medicated, presumably for the hallucinations he mentioned right afterwards. He was not asked about the effectiveness of this medication. And while Applicant claimed not to remember the incident, such a lack of memory—even at trial—would not render a defendant incompetent to stand trial.²¹ And claiming a lack of memory almost two decades after trial does not even establish amnesia about the incident at the time of trial.

Then there is Dr. Jennings's report, which said that Applicant's “present thinking appeared to be absent any signs of delusions or hallucinations.” Since the habeas court did not account for the actual content of the report, the court's conclusion that Applicant suffered hallucinations was based on a flawed analysis. And Applicant's rather vague, self-interested testimony about hallucinations should be greeted with skepticism. Likewise, though Applicant said he “couldn't relate to what was going on” at trial, this testimony is both vague—because it is lacking in specifics—and ambiguous—because what “relate” means is questionable. Since Applicant has given us no reason to doubt Dr. Jennings's report, we should trust that report—issued a month before trial—over Applicant's vague, self-interested testimony about what he experienced over 19 years ago.

Finally, we ought to recall that Applicant's competency claim was part of his overall ineffective-assistance-of-counsel claim. The habeas court issued a non-specific statement concluding that counsel was ineffective:

C3. Applicant Edward Salar received ineffective assistance of counsel.

But on the competency issue, the habeas court has made no findings on what counsel did wrong. The habeas court faulted the expert for not seeing the significance of Applicant being silent, but the expert's report said Applicant was not silent, and what counsel would have had before him was the expert's report. And that expert report concluded that Applicant was competent to stand trial—a conclusion counsel could reasonably rely upon. The habeas court's utter failure to point to what counsel did wrong is another reason to reject its competency findings.

C. The record does not support the habeas court's findings on the appeal claim.

Two habeas court findings and one conclusion are relevant to this claim. In finding one, the habeas court said:

F1. Applicant Edward Salazar was not advised of his right to appeal.

This finding is not supported by the record. At no time did Applicant testify that no one informed him of his right to appeal. Moreover, the record contains documentary evidence that he was informed of that right: the certification of the right to appeal that he signed. Further, his attorney testified that his practice was to inform a convicted defendant of his right to appeal, of the deadlines, and of potential points of error on appeal.

Finding six and conclusion one asserted:

F6. Trial counsel for applicant Edward Salazar failed to preserve applicant Edward Salazar's right to an appeal.

* * *

C1. Applicant Edward Salazar did not voluntarily waive his right of appeal.

These statements by the habeas court are flawed because they are premised on the finding that Applicant was not told of his right to appeal, which I have already demonstrated was unsupported by the record. If we examine the right-to-appeal issue in light of the record-supported conclusion that Applicant was told of his right to appeal, then a serious roadblock to relief emerges. As I explained earlier, before counsel can be faulted for not filing a notice of appeal, a defendant who has been informed of his right to appeal must manifest a desire to appeal.²² The habeas court did not find that Applicant manifested a desire to appeal. In fact, it couldn't have, because it found that Applicant was not told of his right to appeal, and therefore would have no occasion to manifest a desire to appeal. It therefore implicitly found that Applicant did not express a desire to appeal.

In fact, there is a substantial argument that a finding that Applicant had expressed a desire to appeal would not be supported by the record. Applicant never testified that he told his trial attorney that he desired to appeal. The closest he came to saying that was when he said he “ringed them several times for information on the case.” But that could just mean that he was mulling whether to appeal. If he had in fact communicated a desire to appeal to his trial attorney, he could have easily testified to that effect. He didn't. One might perhaps argue that a desire to appeal can be gleaned from the judgment notation that a notice of appeal was filed. But the notation said that a notice was filed, not that the defendant wanted one to be filed. And because the defendant had the opportunity at the habeas hearing to clearly and explicitly say that he told his trial attorney that he wanted to appeal, we should not be reduced to trying to glean an implied meaning from a cryptic judgment notation.

But since the trial court implicitly found that Applicant did not express a desire to appeal, we can easily uphold that implicit finding as supported by the record. Aside from Applicant's failure to explicitly say he asked his attorney to file an appeal, the more than 18 year delay in filing a habeas application prejudices the credibility of his claim that he wanted an appeal.²³

D. Other claims addressed by the habeas court's findings lack merit.

Regarding Applicant's lesser-offense claim, the habeas court made a single finding that appears to reject that claim:

F7. The complaining witness ․ was a public servant.

Counsel's testimony that the victim worked for UT Medical Branch supports this finding. Also, the lesser-included offense of assault was in fact submitted to the jury. Counsel could not have been ineffective for failing to request a lesser-included offense when the lesser-included offense was actually submitted in the jury charge.

The habeas court found Applicant's no-defense claim to have merit:

F5. Trial counsel for applicant Edward Salazar never put forth any arguably meritorious defense.

This finding is not supported by the record. We have no court reporter's record of the trial, so we do not know what evidence counsel presented or what arguments he made to the jury. Also, Applicant did not testify that counsel failed to present a defense. And the jury charge contains a lesser-included offense, which would appear to show that there was a defensive strategy.

Moreover, the failure-to-present-a-defense finding, alone, does not establish ineffective assistance of counsel. To warrant relief, a claim of ineffective assistance must be “firmly founded in the record.”²⁴ For counsel to be ineffective for failing to present an arguably meritorious defense, it would have to be true that there was such a defense. The habeas court has not found that Applicant had an arguably meritorious defense, and Applicant has presented no evidence of such a defense. Applicant was accused of assaulting a psychiatrist while Applicant was serving his prison sentence. That he committed the offense might not be in question at all. Nor has Applicant provided any evidence to show he would have had a viable insanity defense. All he said in his testimony was that there was “an allegation” that he was insane at the time of the attack. That testimony does not even come close to establishing an arguably meritorious defense of insanity, and notably, Applicant has offered no expert testimony on that matter. It could perhaps have been the case that the only viable strategy was to try to mitigate punishment.

E. Laches bars relief on his competency, appeal, and no-defense claims.

Even if one thought the record supported his competency claim, his appeal claim, or his no-defense claim, those claims would be barred by laches. Laches is an equitable doctrine that, based on the passage of time and the existence of prejudice, can require the denial of habeas relief.²⁵ This Court has adopted a “sliding scale”for assessing whether prejudice has been shown: the longer the delay, the less evidence is required, especially when the delay greatly exceeds five years.²⁶ Prejudice can come in a variety of forms, one of which is the hindering of the State's ability to respond to the habeas applicant's allegations.²⁷

The passage of time here was long—18 years before the application was filed and 19 years before the habeas hearing. Some of the passage-of-time concerns articulated earlier apply here. Trial counsel does not remember the case at all, so he cannot comment on the veracity of Dr. Jennings's report, talk about his observations of Applicant, or otherwise explain how he reacted to the issue of competency or why he did. He also cannot speak to whether a notice of appeal was filed, whether it might have been withdrawn, or whether Applicant even requested that an appeal be filed. And counsel cannot speak to what defense he might have presented or what his strategy was. He did speculate that he might have pursued the lesser-included offense of assault, but that was the limit of what counsel could say.

Moreover, the passage of time could mean that Applicant himself does not accurately remember key events surrounding the assessment of his competency, the filing of an appeal, or the presenting of defenses. Applicant testified that he did not remember what he did at the time of incident, and his testimony about what his attorney did wrong has been vague. Even if we assumed Applicant was being truthful, his memory about events happening nearly two decades ago could simply be wrong.

In addition, we have no access to the trial record. We do not know what proceedings the trial court held regarding competency or what happened in those proceedings. We have Dr. Jennings's report, but we do not know what other evidence on competency the trial court might have had. Nor do we know what kind of defensive strategy counsel might have employed at trial. And because counsel does not remember anything about the case, we cannot even indirectly reconstruct a narrative of the trial events. We also do not know what might have been said during the trial proceedings about an appeal.

The habeas court says that habeas relief is not barred by laches because Applicant is not at fault:

F8. Applicant Edward Salazar's application for writ of habeas corpus ․ was delayed by his mental illness.

C4. Applicant Edward Salazar's application for writ of habeas corpus ․ is not barred by laches.

A finding that the application was “delayed by mental illness” is entirely too vague. Having a “mental illness” does not mean someone cannot file a habeas application. Excusing Applicant's tardiness requires specifics on what the mental-illness problem was and why it prevented his filing.

And Applicant testified that his mental condition had not changed between the time of trial and the filing of the habeas application. So, if he could file his habeas application while still suffering from his alleged problems, such as hallucinations, then he could have filed his application long ago.

Applicant did say that he had “learned how to write again,” though he still has trouble reading. Not knowing how to write is not a good excuse for failing to file a habeas application. He could have sought the assistance of someone else to draft a habeas application. A lawyer is not required, and even fellow inmates have been known to do it. And even if a mental-illness-related inability to write could be an excuse, Applicant gave absolutely no detail about this alleged disability to write and how it was restored. He did not say what the problem exactly was, when it started, when he began to relearn the ability to write, how that came about, and when and why he was able to finally compose a habeas application. All of that would be necessary to assessing whether this supposed writing disability excused the delay. Given that this reason for delay would be something Applicant, not the State, would be privy to, it would be his burden to flesh out this excuse.²⁸ He has not done so. Also, needing 18 years to restore an ability to write seems inherently unreasonable, which is all the more reason why he would need to flesh out this excuse with particularity.

Thus, even if Applicant had otherwise provided sufficient evidence for his claims, laches bars relief. Applicant waited a long time to file a habeas application, and he has given insufficient reason for excusing the delay. Due to trial counsel's lack of memory, the absence of a court reporter's record, and Applicant's own likely memory lapses, the State is prejudiced in its ability to respond to Applicant's claims.

For all the reasons discussed above, I agree with and join this Court's decision to deny relief.

FOOTNOTES

1.   In enhancement paragraphs, the indictment alleged that Appellant had six prior convictions: two for murder, two for aggravated assault on a peace officer, and two for robbery.

2.   The report details the rights Applicant was informed of, but I need not delve into them here.

3.   Although Dr. Jennings's report addressed matters that could be relevant to sanity, the examination and report appear to have been limited to the issue of incompetency and expressed no opinion as to sanity at the time of the offense.

4.   The judgment notes that the offense was a third-degree felony enhanced to first-degree felony punishment.

5.   See Tex. Code Crim. Proc. art. 42.08(b) (“If a defendant is sentenced for an offense committed while the defendant was an inmate in the Texas Department of Criminal Justice and serving a sentence for an offense other than a state jail felony and the defendant has not completed the sentence he was serving at the time of the offense, the judge shall order the sentence for the subsequent offense to commence immediately on completion of the sentence for the original offense.”).

6.   Some capitalization changed to lowercase for ease of reading.

7.   Counsel was able to locate some documents within the possession of the Texas Department of Criminal Justice.

8.   Ex parte Dennis, 665 S.W.3d 569, 572 (Tex. Crim. App. 2022).

9.   See Ex parte Galvan, 770 S.W.2d 822, 824 (Tex. Crim. App. 1989) (The “first prerequisite to obtain an out of time appeal” is that the defendant “manifest a desire to appeal.”).

10.   See Ex parte Maldonado, 688 S.W.2d 114, 116 (Tex. Crim. App. 1985) (“In a postconviction collateral attack, the burden is on the applicant to allege and prove facts which, if true, entitle him to relief.”).

11.   See Ex parte Lozoya, 666 S.W.3d 618, 629 (Tex. Crim. App. 2023) (“Ordinarily, post-conviction habeas corpus is not supposed to operate as a substitute for direct appeal. This means that, in post-conviction habeas proceedings, we will ordinarily not entertain record-based claims that were available to be raised on direct appeal.”) (citation omitted).

12.   For all findings and conclusions, I use “F” or “C” before the number to designate the requisite finding or conclusion. I also omit the reference to the trial court and cause number that appears in every single finding and conclusion.

13.   Cf. Ex parte Coty, 418 S.W.3d 597 (Tex. Crim. App. 2014) (inference of falsity of evidence from an expert who has been shown to have committed a pattern of misconduct if certain elements are shown).

14.   See Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008) (“[T]his Court is the ultimate factfinder in habeas corpus proceedings․ When our independent review of the record reveals that the trial judge's findings and conclusions are not supported by the record, we may exercise our authority to make contrary or alternative findings and conclusions.”).

15.   See Ex parte Rocha, 482 S.W.2d 169, 171 (Tex. Crim. App. 1972) (quoting Ex parte Young, 479 S.W.2d 45, 47 (Tex. Crim. App. 1972): “We cannot hold the eleven-year-old conviction void solely upon the testimony of petitioner, motivated by his self-interest and the prospect of gaining his freedom. We will not overturn a presumably valid conviction at this late date merely because the State cannot rebut petitioner's testimony.”).

16.   See id.

17.   Ex parte Garcia, 353 S.W.3d 785, 789 (Tex. Crim. App. 2011).

18.   See id. at 787-78 (“There is at least one significant distinction between the posture of article 11.07 habeas cases and the article 11.072 habeas case before us. In article 11.07 habeas cases, this Court is the ultimate finder of fact; the trial court's findings are not automatically binding upon us, although we usually accept them if they are supported by the record. In an article 11.072 habeas case, however, the trial judge is the sole finder of fact. There is less leeway in an article 11.072 context to disregard the findings of a trial court.”); id. at 789 (“We do not decide whether appellee's testimony was in fact a sufficient basis for upholding the trial court's decision.”)

19.   Some authority suggests that an incompetent-to-stand-trial person could be competent to testify at someone else's trial. See United States v. Hyson, 721 F.2d 856, 864 (1st Cir. 1983); United States v. Lightly, 677 F.2d 1027 (4th Cir. 1982);United States v. McRary, 616 F.2d 181, 183 (5th Cir. 1980).

20.   See Williams v. State, 707 S.W.3d 233, 242 (Tex. Crim. App. 2024) (Mental illness alone is not enough to raise an issue of incompetency to stand trial.).

21.   Id. at 245; Morris v. State, 301 S.W.3d 281 (Tex. Crim. App. 2009).

22.   Galvan, 770 S.W.2d at 824.

23.   Id. (“Almost six years have passed since the applicant was convicted in this case and he has never complained previously that he was denied an appeal․ [A] petitioner's delay in seeking relief can prejudice the credibility of his claim.”) (ellipsis inserted, citations omitted).

24.   Mosley v. State, 666 S.W.3d 670, 673 (Tex. Crim. App. 2023).

25.   Ex parte Hill, 711 S.W.3d 221, 222, 225 (Tex. Crim. App. 2025).

26.   Id. at 225.

27.   Ex parte Perez, 398 S.W.3d 206, 212-13, 215 (Tex. Crim. App. 2013).

28.   See Gatlin v. Commissioner, 754 F.2d 921, 924 (11th Cir. 1985) (“Because the taxpayer is privy to the facts that substantiate a deduction, he must bear the burden of proving his right to, and amount of, a claimed deduction.”).

Per curiam.

Parker, J., filed a concurring opinion joined by Richardson and Finley, JJ.