                                        IN THE
                                TENTH COURT OF APPEALS

                                        No. 10-15-00372-CV

                           EX PARTE MILTON LEE GARDNER


                                  From the 77th District Court
                                   Limestone County, Texas
                                   Trial Court No. J-291-A-1


                                 MEMORANDUM OPINION

        Milton Lee Gardner was adjudicated delinquent in August of 1996 for committing

the offense of assault on a peace officer.1               He was committed to the Texas Youth

Commission for an indeterminate period of time not to exceed his 21st birthday. After

unsuccessfully attempting to challenge his juvenile adjudication in the Court of Criminal

Appeals under article 11.07 of the Code of Criminal Procedure in April of 2015, Gardner

filed a petition for writ of habeas corpus under article 5 of the Texas Constitution in June

of 2015 which also challenged his juvenile adjudication.                     The State contended that

Gardner’s petition was barred by the equitable doctrine of laches. The trial court denied




1
 According to the trial court’s findings of fact and conclusions of law, Gardner is currently in prison serving
a 60 year sentence for “Aggravated Assault - Family Violence with a Deadly Weapon.”
Gardner’s petition. Because the trial court did not err in denying Gardner’s petition for

writ of habeas corpus, we affirm the trial court’s judgment.

LACHES

        Gardner first complains that the trial court erred in denying his application for

writ of habeas corpus because Gardner claimed he was denied the right to a jury trial at

his juvenile adjudication hearing. Specifically, he contends that because there is no

written waiver of his right to a jury trial in the clerk’s record of the adjudication

proceeding, the juvenile court’s bench trial adjudicating Gardner delinquent was void;

thus, habeas relief should have been granted. Within this issue, he also complains that

the trial court erred in finding that this claim was barred by laches. 2

        In his initial brief to us, Gardner asserts that his habeas claim was not barred by

laches, citing the Court of Criminal Appeals’ opinion in Ex parte Carrio, 992 S.W.2d 486

(Tex. Crim. App. 1999). In Carrio, the Court followed the federal laches procedure and

required the State to show a particularized prejudice, among other requirements, when

asserting laches. Id. at 488. Gardner claimed the State could not show a particularized

prejudice and, therefore, was not entitled to prevail on its laches argument. However,

when the State pointed out in its brief to this Court, as it did in the trial court, that the

manner in which a laches complaint is reviewed was altered, specifically deleting the

particularize prejudice requirement, by the Court of Criminal Appeals in Ex parte Perez,




2 Gardner raised other claims in his habeas petition. He does not contest the trial court’s ruling on those
claims.

Ex parte Gardner                                                                                    Page 2
398 S.W.3d 206 (Tex. Crim. App. 2013), Gardner changed his tune. In his reply brief,

supplemental reply brief, and reply to the State’s reply brief,3 Gardner urges this Court

to follow the civil standard of reviewing claims of laches because juvenile proceedings

are civil in nature and not to be treated as criminal cases. But, Gardner’s argument

continues, regardless of the standard used, civil or criminal, the State cannot prove

laches.4 We disagree with Gardner.

           In the criminal context, the equitable doctrine of laches bars habeas relief "when

an applicant's unreasonable delay has prejudiced the State, thereby rendering

consideration of his claim inequitable." Ex parte Perez, 398 S.W.3d 206, 219 (Tex. Crim.

App. 2013); see also Ex Parte Smith, 444 S.W.3d 661, 666-67 (Tex. Crim. App. 2014). No

"particularized showing of prejudice" is required of the State, and prejudice has been

broadly defined "to permit consideration of anything that places the State in a less

favorable position, including prejudice to the State's ability to retry a defendant, so that a

court may consider the totality of the circumstances in deciding whether to grant

equitable relief." Perez, 398 S.W.3d at 215. Proof of prejudice is applied on a sliding scale

where "the longer the delay, the less prejudice must be shown." Id. at 219.

           In the civil context, to invoke the equitable doctrine of laches, the moving party




3
    Gardner’s motion for leave to file the reply to the State’s reply is granted.

4
  Because Gardner contends the State loses under either standard, we need not decide which standard is
the appropriate one to use.

Ex parte Gardner                                                                               Page 3
ordinarily must show 1) an unreasonable delay by the opposing party in asserting its

rights, and 2) the moving party's good faith and detrimental change in position because

of the delay. In re Laibe Corp., 307 S.W.3d 314, 318 (Tex. 2010). "Equity aids the diligent

and not those who slumber on their rights." Callahan v. Giles, 576, 155 S.W.2d 793, 795

(1941).

          Here, the record shows that Gardner waited almost 20 years to assert in a habeas

petition that he was denied the right to have a trial by jury in his juvenile adjudication

proceeding. Although there is no signed waiver of a jury trial in the clerk’s record of the

juvenile proceeding, the Family Code does not prohibit oral waivers. See TEX. FAM. CODE

ANN. § 51.09(4) (West 2014). The record also shows that the assistant district attorney

who participated in the prosecution of Gardner’s case has no “direct recollection” of the

case, the district attorney at the time Gardner was adjudicated is now deceased, and the

juvenile court judge is retired.

          The reporter’s record may have shown an oral waiver, but the court reporter

destroyed her notes of the proceeding. The Texas Government Code provides that a

reporter, on request, shall preserve the notes for future reference for three years from the

date on which they were taken. TEX. GOV’T CODE ANN. § 52.046(a)(4) (West 2013).

Because Gardner did not appeal his juvenile adjudication, the reporter could have

destroyed her notes three years after Gardner’s adjudication. Instead, the reporter waited

15 years to do so, possibly relying on Texas Rule of Appellate Procedure 13. TEX. R. APP.


Ex parte Gardner                                                                      Page 4
P. 13.6 (When a defendant is convicted and sentenced and does not appeal, the reporter

must file the untranscribed notes with the trial court clerk who is not required to keep

those notes beyond 15 years).              Additionally, Gardner’s counsel’s records of the

adjudication proceeding were destroyed as early as 2010 or as late as 2014. Thus, there is

nothing on record to show whether or not Gardner waived his right to a jury trial, and

because Gardner waited until after all other documentation was destroyed, the State is

prejudiced in its ability to respond Gardner’s habeas claim.

        Under either standard, an almost 20 year delay in bringing this claim is

unreasonable.5 Further, the State has been placed in a less favorable position than it

would have been had Gardner brought his habeas claim (criminal standard); and

changed its position to its detriment by destroying records in good faith (civil standard).

Accordingly, the trial court did not err in determining the doctrine of laches applied to

bar Gardner’s habeas claims.

        Gardner’s first issue is overruled.

OTHER ISSUES

        In his second and third issues, Gardner complains that the juvenile court erred in

failing to advise him of the procedures for sealing the record under Texas Family Code




5
  Gardner complains that he was not able to show his reason for the delay in bringing his claim because no
evidentiary hearing was held. The State filed its response asserting laches in June of 2015. The trial court
did not deny Gardner’s writ until October of 2015. As is evident from the record, Gardner filed many
documents after the State’s response and had ample time to inform the court of the reason for his delay in
filing a habeas if he had one.

Ex parte Gardner                                                                                     Page 5
section 58.003 and that the juvenile court erred in failing to allow Gardner’s counsel ten

days for trial preparation. Neither of these arguments on appeal were raised in his habeas

petition to the trial court. Thus, the trial court had no opportunity to review those claims.

       To preserve error, Texas Rule of Appellate Procedure 33.1(a) requires the

complaining party to make a specific objection or complaint and obtain a ruling thereon

before the trial court. See TEX. R. APP. P. 33.1(a). Because Gardner did not raise these

claims in his petition for writ of habeas corpus, his complaints on appeal do not comport

and are not preserved for our review. See Ex parte Tucker, 977 S.W.2d 713, 715 (Tex.

App.—Fort Worth 1998) (holding that the issue of excessive bond would not be addressed

on appeal when it was not included in a habeas application that was the basis of the

appeal), pet. dism'd, 3 S.W.3d 576 (Tex. Crim. App. 1999) (per curiam); see also Ex parte

Tutton, No. 10-14-00360-CR, 2015 Tex. App. LEXIS 7069, *6-7 (Tex. App.—Waco 2015, pet.

ref’d) (mem. op.). This same concept of preservation has been applied in civil cases. See

In the Interest of D.E.H., 301 S.W.3d 825, 829 (Tex. App.—Fort Worth 2009, pet. denied).

See also In the Interest of L.M.I., 119 S.W.3d 707, 710-11 (Tex. 2003); In the Interest of E.M.,

No. 10-14-00313-CV, 2015 Tex. App. LEXIS 5490, *36 (Tex. App.—Waco 2015, pet. denied)

(mem. op.). We do not see a reason why it would not apply here as well.

       Accordingly, Gardner’s second and third issues are not preserved and are

overruled.




Ex parte Gardner                                                                         Page 6
CONCLUSION

       Having overruled each of Gardner’s issues on appeal, we affirm the trial court’s

order denying Gardner’s application for writ of habeas corpus.




                                        TOM GRAY
                                        Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed October 12, 2016
Do not publish
[CV06]




Ex parte Gardner                                                                 Page 7
