EX PARTE WELLS v. << (2026)

CONCURRING OPINION

Approximately 14 years after Applicant's appeal was dismissed as untimely, he filed a habeas application requesting an out-of-time appeal. During that 14-year gap—about 5 1/212 years after his appeal was dismissed—the victim of the offense died. Under these circumstances, I agree with the Court that relief should be denied, because his claim is barred by laches.

I. BACKGROUND

Applicant was charged with burglary of a habitation with intent to commit another felony. He was an ex-boyfriend of the victim. The victim testified at trial that he entered her apartment while she was asleep. He entered the apartment by breaking the glass window and opening it, but she had not heard it break. When she woke up, she saw him standing over her. He then pulled her up and punched her in the mouth. Afterwards, he dragged her into the bathroom for her to clean up the blood. She had to go to the bathroom to clean up a second time because she was bleeding a lot. Applicant told her that she was his property, and that, “If I can't have you, nobody can.” Later, the victim tried to escape out the front door, but Applicant snatched her and pulled her back in. Later, Applicant brandished a knife, threatened to cut the victim's throat, and ordered her to undress. After she had undressed, the police knocked on the door. After receiving no response, the police entered through the open window.

Applicant was found guilty, and the sentencing hearing was delayed for a pre-sentence investigation. On December 15, 2008, he was sentenced to 45 years in prison. Trial counsel did not file a notice of appeal, a motion for new trial, or a motion to withdraw in the 30 days after judgment, and Applicant's conviction became final in January of 2009. On January 22, 2009, after the conviction was final, trial counsel filed a motion to withdraw. This motion said that Applicant had filed a notice of appeal, but that assertion was incorrect.¹ On April 9, 2009, Applicant mailed a letter to the district clerk requesting an attorney for his appeal. After this, trial counsel filed various motions and ultimately filed a notice of appeal on May 29, 2009. At a hearing, trial counsel stated that he had assumed that the trial court would automatically appoint appellate counsel for Applicant. That assumption was wrong. On June 24, 2010, the court of appeals handed down an opinion dismissing the appeal as untimely.²

The court of appeals's opinion observed that Applicant could obtain an out-of-time appeal in a habeas application and that the State had said that it would not oppose such a request:

We note that the State has declared in a motion before this Court that it will not oppose an application by appellant for a post-conviction writ of habeas corpus requesting an out-of-time appeal. This is as it should be. Appellant is entitled to such remedy and, given the circumstances of this case, justice would seem to impel all involved parties—the defense, the State, and the trial court—to ensure that it be accorded to him.3

The court of appeals's mandate issued on September 16, 2010. The mandate was mailed to Applicant on November 2, 2010.

On April 9, 2016, the victim of this offense died.

In its findings, the habeas court recommended granting relief. In addition to the facts noted above, the habeas court said, “It is unknown if Applicant received this mandate.” But the habeas court said nothing in its findings about whether Applicant received a copy of the court of appeals's opinion. On the issue of laches, the habeas court said that the State would not suffer prejudice because the transcript of the complaining witness's testimony at trial could be read back in a subsequent trial.

II. ANALYSIS

Laches is an equitable doctrine that, based on the passage of time and the existence of prejudice, can require the denial of habeas relief.⁴ 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.⁵ Prejudice can come in a variety of forms, one of which is prejudicing the State's ability to retry the case.⁶

The sliding-scale standard weighs heavily in favor of denying relief in this case. A 14-year delay is a long time for any sort of habeas claim, but it is an especially long time for the type of claim before us—a claim of entitlement to an out-of-time appeal due to a missed deadline. Such an uncomplicated claim should have been easy to compose, and one would expect a person truly interested in an appeal to seek habeas relief soon after the appeal was dismissed. Moreover, in Applicant's case, the opinion dismissing the appeal expressly directed Applicant to habeas as a remedy. Applicant's delay was both long and inexcusable.

And this conclusion would be true even if Applicant had not received a copy of the court of appeals's opinion or the mandate. At some point, the passage of time itself should have alerted Applicant to the fact that the appeal was off-track. Applicant himself understood this when he inquired in April 2009, after hearing nothing for months. But after a notice of appeal was filed, Applicant allowed 15 years to elapse without inquiring again.

And the habeas court never made a finding that Applicant didn't receive a copy of the court of appeals's opinion or the mandate. The habeas court's only finding was about the mandate, and its only finding on the mandate was we do not know whether Applicant received it. Why don't we know? One reason we don't know is that Applicant has never filed an affidavit. Applicant could, in an affidavit, say whether he received a copy of the court of appeals's opinion or of the mandate, and if so, when he received a copy of either or both documents. With nothing in the record to suggest otherwise, I would presume that Applicant received both documents about the time he should have received them. And with the court of appeals explicitly instructing Applicant what to do, his failure to do it for 14 years is grossly inexcusable.⁷

Given the passage of time and the gross inexcusableness of Applicant's delay, the amount of prejudice the State needs to show for laches is minimal. And the State has it: the victim died during the delay. The fact that the victim's transcribed testimony is admissible doesn't eliminate all the prejudice suffered by the State. A “cold record” is a pale substitute for a live victim's testimony.⁸ In a retrial, a trier of fact would not get to observe the victim's demeanor or hear her tone of voice. It would not get to consider such demeanor and tone to the extent they might convey the victim's fear of Applicant or how harrowing her experience was. And that fear and suffering would certainly be relevant to punishment, but might even relate to guilt, to the extent the victim's credibility might be in issue. In the face of excusable delay, the prejudice of having to use prior transcribed testimony would not be sufficient to establish a laches defense, but in the face of grossly inexcusable delay, it is more than enough.

Applicant's claim is barred by laches.⁹ The Court correctly denies relief.

DISSENTING STATEMENT

Eddie Wells was convicted of burglary of a habitation after a horrifying course of events involving the breaking and entering of his ex-girlfriend's apartment. Fourteen years after his appeal was dismissed as untimely in 2010, he has filed this application for a writ of habeas corpus alleging his trial counsel's ineffectiveness resulted in a denial of his right to appeal. Wells claims he expressed his desire to appeal to trial counsel, but counsel failed to file a timely notice of appeal or secure his appellate rights prior to withdrawing from the case.

The trial court learned of his desire to appeal in 2009 based upon a letter Wells sent the clerk of that court. Trial counsel testified he told Wells he believed Wells would have had appellate counsel automatically appointed, as his conviction was a serious felony offense, and so trial counsel excused himself. For this reason, Wells believed his appeal was pending when, in reality, no one had ever timely filed a notice of appeal. Thus, in 2009, the trial court appointed appellate counsel and attempted to give Wells permission to file an out-of-time appeal.¹ Because the court lacked authority to extend that time frame, the appellate court correctly dismissed this appeal in 2010.

Wells has now filed an application for a writ of habeas corpus requesting the opportunity to appeal, and this Court has denied Wells relief to file. I doubt the granting of relief based on a process question such as that before us is barred by the equitable doctrine of laches,² and therefore I dissent.

Laches is not a jurisdictional problem, but rather, goes to the question of availability of a remedy. SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, 580 U.S. 328, 333–35, 137 S.Ct. 954, 197 L.Ed.2d 292 (2017). The only remedy Wells requests here equates to a renewed opportunity to file an out-of-time appeal, and had this Court said “yes,” such a remedy would not guarantee Wells success in any argument presented within such appeal, or even assure that that he would follow through in filing an out-of-time notice of appeal. If he did, the merits questions—of whether he could show any error in his trial and, if so, whether that error entitled him to any relief by rendition or remand for a new trial—would be addressed by the court of appeals. There, the State's argument as to prejudice and delay could be presented under the banner of laches, acquiescence, abandonment, or any theory the State cared to pursue and have heard by a court with the full record and plenary authority to decide what, if any, remedy is available.

The State's response to Wells's present filing asserts the prejudice associated with the time frame Wells delayed in filing his application is exacerbated by the fact the victim in this case has since passed away from causes unrelated to the trauma of the crime.³ Judge Parker, in her concurrence, explicitly agrees, arguing “a ‘cold record’ is a pale substitute for a live victim's testimony,” due to a hypothetical juror's future inability to observe the victim's demeanor. Court precedent may support this point in other contexts,⁴ but we have no ability to predict whether a retrial is even necessary at this point, and to deny Wells relief today based on laches skips several procedural steps into the future.

Today, Wells only seeks the right to be heard, and thus I reiterate my sentiments expressed in Ex parte Tapia. As the matter before us only involves a “yes” or “no” as to an issue of procedure, I am not inclined to presume of prejudice suffered by the State in answering that question on the speculative theory that read testimony will be less powerful on a retrial that may not be required—particularly without knowing the strength or seriousness of Wells's potential arguments as to error, among other things relevant to the determination of substantive relief.⁵

Furthermore, Judge Parker asserts we should apply laches to any claims Applicant might raise in a possible future appeal, if he were to file one. Respectfully, this assertion does not apply to the question in front of us. The question at this point is whether the State would be prejudiced if the Court granted Wells permission to file an out-of-time appeal. Here, the State has already responded to Wells's present filings to such an extent that its argument garnered the majority's support, and we lack any evidence granting Wells a procedural “thumbs up” to file another document would cause prejudice to the State in its ability to respond to anything Wells might assert therein.

Even so, Judge Parker cites Ex parte Hill, 632 S.W.3d 547, 553 (Tex. Crim. App. 2021), but her present application of Hill to the case at hand misinterprets its lore. Michael Charles Hill had been convicted of sexual assault of a child and indecency with a child by contact in 2012 after the State alleged a prior conviction from 2000 for enhancement. See Hill v. State, Nos. 06-12-00094-CR, 06-12-00095-CR, 2013 WL 69239, at *1 (Tex. App.—Texarkana, Jan. 8, 2013, no pet.) (mem. op., not designated for publication). More than a decade following his guilty plea, Hill filed a postconviction writ application, arguing the plea was involuntary. See Ex parte Hill, Nos. WR-83,074-04, 83,074-05, 2019 WL 2607173, at *1 (Tex. Crim. App. June 26, 2019) (per curiam). Without mentioning laches, this Court agreed and granted relief nearly twenty years after that conviction. Id.

Shortly after this Court granted relief, Hill filed a new postconviction writ application, arguing his 2012 sentences were illegal because the enhancement conviction had been set aside. See Ex parte Hill, 632 S.W.3d 547 (Tex. Crim. App. 2021). Dissenting in part and concurring in part, then-Presiding Judge Keller argued Hill's illegal sentence claims should be barred by laches. Ex parte Hill, 632 S.W.3d at 560. She based this reasoning on her disdain for the Court's decision not to apply laches in Hill's earlier case, concluding the Court could fix that mistake by applying laches to these timely raised illegal sentence claims. Id.

The majority explained, however, that laches, being an equitable doctrine, cut the other way: the proper time to apply laches to an applicant's claim is upon the Court's first read of any claims presented in which the doctrine of laches—with its sliding scale of prejudice—might properly bar the matter, and not down the line when other claims arise appended to that matter. Id. at 553.

Judge Parker's Footnote 9 pulls a piece from this 2021 Hill opinion, reading “[t]he appropriate time to apply laches because of Applicant's delay in challenging his ․ conviction was before we reached the merits of his claims.” Id. The “claims” this quote references are those separate claims Hill brought and the Court answered in 2019, meaning because the Court did not apply laches at that time, later barring timely-raised claims affiliated with the same matter, such as those considered in the Court's Hill 2021 decision, would not serve equity.

Stretching the 2021 Hill holding in order to apply laches to bar the bringing of any hypothetical claims misinterprets the Court's decision. Right now, Wells has not filed any appeal, and in the case before us, the answer to me is to keep the procedural horse in front of the remedial cart. For these reasons, I dissent from the opinion of the Court and would grant Wells relief to file his appeal.

FOOTNOTES

1.   At the habeas hearing, trial counsel testified that this language was boilerplate language included by mistake.

2.   Wells v. State, No. 01-09-00627-CR, 2010 WL 2545622 (Tex. App.—Houston [1st Dist.] June 24, 2010) (not designated for publication).

3.   Id., 2010 WL 2545622, at *2.

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

5.   Id. at 225.

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

7.   In fact, this failure to diligently seek an appeal strongly suggests, at the very least, that Applicant lost interest in pursuing an appeal, and it arguably establishes that he effectively abandoned his right to do so. Due to my conclusion about laches, I need not address whether his conduct amounted to an abandonment of the right to appeal that would foreclose the right without any inquiry into prejudice.

8.   See State v. Gutierrez, 541 S.W.3d 91, 103 (Tex. Crim. App. 2017) (“When a juror vacillates, a reviewing court's deference to the trial court's finding is at its apex because the finding hinges on credibility and demeanor evaluations, to which we are not privy on a cold record.”); Garcia v. State, 15 S.W.3d 533, 536 n.3 (Tex. Crim. App. 2000) (“The dissent argues that a trial judge should be able to make findings based upon a ‘cold’ record because ‘it is no different from a trial judge, in the first instance, making findings of fact based upon affidavits.’ If the first judge in the instant case had made written findings of fact and conclusions of law or had used only written evidence to make his ruling, the dissent's rationale might be persuasive. These are not the facts presented to this court, however. The first trial judge concluded, based on live testimony, that appellant's statement was voluntary but made no written findings of fact and conclusions of law. The dissent also equates the transcription of live, sworn testimony with an affidavit. However, the two are not the same. While the latter is a complete statement in and of itself, the same cannot be said for the former; the credibility of the witness through his/her demeanor on the stand is crucial to an evaluation of live testimony.”) (citations omitted, emphasis added); Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997) (“In reviewing a trial court's ruling, an appellate court must first determine the applicable standard of review. The amount of deference a reviewing court affords to a trial court's ruling on a ‘mixed question of law and fact’ (such as the issue of probable cause) often is determined by which judicial actor is in a better position to decide the issue. If the issue involves the credibility of a witness, thereby making the evaluation of that witness’ demeanor important, compelling reasons exist for allowing the trial court to apply the law to the facts.”).

9.   The Presiding Judge contends that we can consider the issue of laches when Appellant files an appeal, but in all likelihood, the court of appeals, and ultimately this Court, would hold that it would be too late to raise laches at that point because, “The appropriate time to apply laches because of Applicant's delay in challenging his ․ conviction was before we reached the merits of his claims.” Ex parte Hill, 632 S.W.3d 547, 553 (Tex. Crim. App. 2021). Although Hill did not involve an out-of-time-appeal claim, the principle articulated in that case applies here. In the present case, the “claim” at issue is an out-of-time-appeal claim, and if we grant that claim, then we have reached its merits. Under Hill, it would be too late in the appeal (the later proceeding) to address the issue of laches from a delay in seeking an out of time appeal after we have already granted the out of time appeal. And an appeal is a remedy “at law,” see In re Smith, 665 S.W.3d 449, 454 (Tex. Crim. App. 2022), and In re Gonzales, 619 S.W.3d 259, 264 (Tex. 2021), and the doctrine of laches, at least ordinarily, applies only in equity and not to remedies at law. See SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., 580 U.S. 328, 333-35, 137 S.Ct. 954, 197 L.Ed.2d 292 (2017); Petrella v. MGM, 572 U.S. 663, 678, 134 S.Ct. 1962, 188 L.Ed.2d 979 (2014) (“Last, but hardly least, laches is a defense developed by courts of equity; its principal application was, and remains, to claims of an equitable cast for which the Legislature has provided no fixed time limitation. Both before and after the merger of law and equity in 1938, this Court has cautioned against invoking laches to bar legal relief.”) (citation and following parenthetical omitted). Moreover, while the Presiding Judge seems to suggest that we might apply laches to claims raised in an ensuing appeal, those claims wouldn't be “late” with respect to the appeal. And while the Presiding Judge suggests it is speculative whether Appellant would appeal or what his claims would be, the whole point of asking for an out-of-time appeal is to obtain relief in that appeal. And given the facts known to us, see supra at Part I, Applicant has no viable sufficiency claim, and the State would suffer prejudice from any claim that resulted in a new trial or a new punishment proceeding.

1.   At the time of these original proceedings, the State did not oppose granting Wells the opportunity to appeal.

2.   This Court has described the doctrine of laches as an equitable “theory which we may, and should, employ in our determination of whether to grant relief in any given [Article] 11.07 case.” Ex parte Carrio, 992 S.W.2d 486, 488 (Tex. Crim. App. 1999), overruled in part by Ex parte Perez, 398 S.W.3d 206, 213-15 (Tex. Crim. App. 2013). In making that determination, the doctrine assesses a greater amount of prejudice against the State in responding to a claimant in direct proportion to the delay in time an applicant has waited to bring his claim. See Ex parte Perez, 398 S.W.3d at 217 (explaining the State's interest in and possibility for overcoming prejudice resulting from the claimant's delay); Ex parte Hill, 711 S.W.3d 221, 226 (Tex. Crim. App. 2025) (explaining the Court's intent to avoid a “blow to the State's legitimate interest in the finality of its convictions, many years after the fact, without an adequate justification for the delay ․”).

3.   However, the trial court's findings report that although her death has rendered the victim unavailable to testify in the case of a retrial, because she testified and was cross-examined in the original proceeding, her testimony could be read into the record, negating any prejudice potentially suffered by the State. See generally Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); Mattox v. United States, 156 U. S. 237, 243, 15 S.Ct. 337, 39 L.Ed. 409 (1895).

4.   See State v. Gutierrez, 541 S.W.3d 91, 103 (Tex. Crim. App. 2017) (“When a juror vacillates, a reviewing court's deference to the trial court's finding is at its apex because the finding hinges on credibility and demeanor evaluations, to which we are not privy on a cold record.”).

5.   Indeed, this theory, if adopted as a controlling legal standard governing the right to be heard on appeal, should apply on direct appeal as those proceedings often take necessary years to resolve as well.