COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§ No. 08-22-00237-CR
§ Appeal from the
EX PARTE: § 171st Judicial District Court
JASON JONES § of El Paso County, Texas
§ Cause No. 970D08935-171-1
MEMORANDUM OPINION
Appellant Jason Jones filed an application for habeas corpus relief, requesting a 1998
judgment of deferred adjudication be vacated on the grounds of ineffective assistance of counsel,
involuntary plea, and a claim of actual innocence. The trial court denied Jones a hearing, and
denied, as well, his request for habeas relief. He appeals those rulings. Finding no error, we affirm.
I. BACKGROUND
In 1997, Jones was indicted on one count of indecency with a child by sexual contact. See
TEX. PENAL CODE ANN. § 21.11(a)(1). The indictment alleged that Jones intentionally and
knowingly engaged in sexual contact with the complainant, who was younger than 17 years of age,
by touching the anus of said complainant. On March 20, 1998, pursuant to a plea agreement, Jones
pleaded guilty to the allegations as charged by the indictment. In accordance with the plea
agreement, Jones waived his right to trial by jury, to which the State consented and approved. The
State recommended the trial court defer a finding of guilt, place Jones on deferred adjudication for
eight years, order 200 hours of community service, prohibit his contact with the complaining
witness, and require his participation in a sex offender program.
The trial court accepted Jones’s guilty plea and entered an order deferring adjudication of
guilt in accordance with the provisions of Article 42.12, Section 5(a) of the Texas Code of Criminal
Procedure. Without entering a judgment of guilt, the trial court deferred further proceedings and
ordered that Jones be placed on probation for a period of 8 years under the terms and conditions
set out in an attached exhibit. On the same day, Jones signed a Texas Department of Public Safety
Sex Offender Registration notice in which he reported he had received deferred adjudication for
eight years on a charge of indecency with a child by contact. Item 31 of the pre-printed registration
form included a box with a check mark indicating that verification was required annually, with a
handwritten “lifetime” included in the space nearby.
Thereafter, on May 8, 2006, a community supervision officer reported to the trial court that
Jones had successfully completed the period of community supervision under Article 42.12,
Section 5(c) of the Texas Code of Criminal Procedure. On May 11, 2006, the trial court then signed
and entered an order discharging Jones from community supervision under deferred adjudication
and “ordered, adjudged, and decreed that the proceedings entered against [Jones] in this case be
hereby dismissed.”
In 2022, more than 24 years after pleading guilty under deferred adjudication, and more
than 16 years after the dismissal of his case, Jones filed an application for writ of habeas corpus in
the deferred adjudication trial court under Article 11.072 of the Texas Code of Criminal Procedure.
See TEX. CODE CRIM. PROC. ANN. art. 11.072. Jones noted, “[w]hile 11.072 does not have a
custody requirement, Applicant is restrained by lifetime sex offender registration.” Asking the trial
court to entertain challenges to the validity of proceedings, Jones alleged four bases for relief: (1)
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the trial court lacked jurisdiction because he was a juvenile at the time of the alleged offense; (2)
he was actually innocent of the charged offense; (3) he was deprived of effective assistance of
counsel at trial as constitutionally guaranteed; and (4) his plea was involuntary in violation of his
constitutional rights. On these bases, Jones requested the trial court issue a writ of habeas corpus,
conduct a hearing on the grounds for relief, and “set aside the Applicant’s conviction in this case.”
Responding to the application, the State asserted, among other things, that laches barred Jones’s
claims.
The trial court did not hold an evidentiary hearing on Jones’s habeas application. See TEX.
CODE CRIM. PROC. ANN. art. 11.072, § 6(b)-(c). It denied the relief sought by Jones and issued
findings of fact and conclusions of law. See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 7(a). This
appeal followed.
II. STANDARD OF REVIEW
We apply an abuse of discretion standard when reviewing a trial court’s decision to grant
or deny habeas corpus relief. Ex parte Wheeler, 203 S.W.3d 317, 323–24 (Tex. Crim. App. 2006).
We view the facts in the light most favorable to the trial court’s ruling and defer to the trial court’s
implied factual findings supported by the record. Id. at 325–26. This degree of deference applies
even where, as here, “no witnesses testify[,] and all of the evidence is submitted in written
affidavits.” Id. at 326.
We only reverse the trial court’s ruling if we conclude it is arbitrary, unreasonable, and
made without reference to guiding rules or principles. Ex parte Medrano, No. 08-21-00016-CR,
2022 WL 1681860, at *2 (Tex. App.—El Paso May 26, 2022, pet. ref’d). We must review the
record evidence in the light most favorable to the trial court’s ruling, and we must uphold that
ruling absent an abuse of discretion. Wheeler, 203 S.W.3d at 324. We review de novo mixed
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questions of law and fact that do not depend upon credibility and demeanor. Ex parte Weinstein,
421 S.W.3d 656, 664 (Tex. Crim. App. 2014).
Texas Code of Criminal Procedure Article 11.072 governs habeas corpus proceedings
involving a person who is serving or who has completed a term of community supervision. See
TEX. CODE CRIM. PROC. ANN. art. 11.072; Ex parte Vasquez, 499 S.W.3d 602, 606 (Tex. App.—
Houston [1st Dist.] 2016, pet. ref’d). In a proceeding under Article 11.072, the trial court is the
sole finder of fact. See TEX. CODE CRIM. PROC. ANN. art. 11.072, §§ 6–7 (providing that trial court
shall enter written order granting or denying relief sought and shall enter written order including
findings of fact and conclusions of law).
III. ISSUES ON APPEAL
Jones brings five issues on appeal wherein he asserts separate grounds for establishing the
trial court abused its discretion in denying habeas relief. First, he urges his plea was involuntary.
Second, he claims he was deprived of effective assistance of counsel. Third, he argues he was
harmed by his trial counsel’s errors. Fourth, he contends his claims were not barred by laches.
Fifth, he asserts he was wrongly deprived of a hearing on his claims of actual innocence.
Because the trial court expressly ruled that laches barred habeas relief, and a bar of laches
is potentially dispositive of other issues, we address laches first and begin with the fourth issue.
IV. THE DOCTRINE OF LACHES
In his habeas application, Jones asserted among other claims that he entered a plea of guilty
and waived his right to trial based on erroneous advice from his counsel that he would not have to
register as a sex offender after he completed probation. He claims this erroneous advice rendered
his plea involuntary. Relatedly, he further asserts that trial counsel misinformed him about the law
regarding the charge of indecency by contact, and that he would be criminally responsible as an
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adult despite the fact that the alleged conduct took place when he was 16 years old. In response,
the State asserted that Jones’s claims were barred by laches and otherwise lacked merit.
The trial court made the following relevant findings of fact and conclusions of law
pertaining to laches:
FINDINGS OF FACT
8. On May 2, 2022, more than 24 years after his guilty plea, Jones filed his first
application for post-conviction writ of habeas corpus under article 11.072, a
copy of which was served on the State by the District Clerk on May 3, 2022.
. . .
28. The Court finds that Jones’s unreasonable delay in filing his writ is not justified.
29. The Court finds that the State has been prejudiced in its ability to retry the case.
30. The Court finds that the State has been prejudiced in its ability to respond to
Jones’s writ allegations.
CONCLUSIONS OF LAW
1. Jones’s writ claims are barred by the common-law doctrine of laches. See Ex
parte Perez, 398 S.W.3d 206, 215 (Tex. Crim. App. 2013).
A. Applicable law
The writ of habeas corpus is an extraordinary remedy and granting the writ “must be
underscored by elements of fairness and equity.” Ex parte Smith, 444 S.W.3d 661, 666 (Tex. Crim.
App. 2014). Thus, equity and fairness “require a consideration of unreasonable delay.” Ex parte
Bowman, 447 S.W.3d 887, 888 (Tex. Crim. App. 2014).
The Court of Criminal Appeals has determined that the doctrine of laches was appropriate
for application in the habeas corpus context. Perez, 398 S.W.3d at 210; Bowman, 447 S.W.3d at
888 (holding “that laches applies to Art. 11.072”). It has defined the common law doctrine of
laches as follows:
[The] neglect to assert [a] right or claim which, taken together with lapse of time
and other circumstances causing prejudice to an adverse party, operates as a bar in
a court of equity. Also, it is the neglect for an unreasonable and unexplained length
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of time under circumstances permitting diligence, to do what in law, should have
been done.
Perez, 398 S.W.3d at 210. The two considerations in determining whether laches should apply are
“unreasonable delay by the opposing party and prejudice resulting from the delay.” Id. at 210 n. 3;
see also Smith, 444 S.W.3d at 666. A showing of prejudice to the State includes consideration of
“anything that places the State in a less favorable position, including the State’s ability to retry a
defendant[.]” Perez, 398 S.W.3d at 215. Proof of “mere passage of time” is insufficient to raise
laches. Id. at 219.
Whether the doctrine of laches applies is a question of fact to be considered on a case-by-
case basis. Bowman, 447 S.W.3d at 888. Courts may consider “the totality of the circumstances in
deciding whether to grant equitable relief,” including “the diminished memories of trial
participants and the diminished availability of the State’s evidence.” Perez, 398 S.W.3d at 215–
16.
The Court of Criminal Appeals has addressed relevant factors proper to consider in whether
a claim for habeas relief should be barred by laches. See id. at 217. These include, “among all
relevant circumstances, factors such as the length of the applicant’s delay in filing the application,
the reasons for the delay, and the degree and type of prejudice resulting from the delay.” Id. “No
single factor is necessary or sufficient,” but “courts must ‘engage in a difficult and sensitive
balancing process’ that takes into account the parties’ overall conduct.” Id. “[A] court may draw
reasonable inferences from the circumstantial evidence to determine whether excessive delay has
likely compromised the reliability of a retrial.” Id. When prejudice is shown, the court “must then
weigh that prejudice against any equitable considerations that militate in favor of granting habeas
relief.” Id. The degree of proof required is a “sliding scale” approach where “the longer an
applicant delays filing his application . . . the less evidence the State must put forth in order to
demonstrate prejudice.” Id. at 217–18. Additionally, when determining whether habeas relief is
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warranted, we must consider “the State’s broad interest in the finality of a long-standing
conviction.” Id.
Courts may reject the State’s reliance on laches when the record shows that (1) an
applicant’s delay was not unreasonable because it was the result of a justifiable excuse or excusable
neglect; (2) the State would not be materially prejudiced as a result of the delay; or (3) the applicant
is entitled to equitable relief for other compelling reasons, such as new evidence showing that he
is actually innocent of the offense or, in some cases, that he is reasonably likely to prevail on the
merits. Id. at 218. The Court of Criminal Appeals declined to impose a requirement that a
defendant assert a claim for habeas relief within a specific period of time, stating instead that it
“will continue to apply laches as a bar to relief when an applicant’s unreasonable delay has
prejudiced the State, thereby rendering consideration of his claim inequitable.” Id. at 219. The
Court noted, however, that a delay of more than five years “may generally be considered
unreasonable in the absence of any justification for the delay.” Id. at 216 n.12.
B. Analysis
It is undisputed that Jones pleaded guilty to the charged offense and was placed on deferred
adjudication community supervision in March 1998. After he successfully completed the full
period of community supervision, the trial court discharged him from further supervision, and
ordered the proceeding against him dismissed under Article 42.12, section 5(a), of the Texas Code
of Criminal Procedure. Neither Jones nor the State, respectively, appealed the 1998 deferred
judgment or the 2006 order of discharge and dismissal. On May 2, 2022, Jones filed his application
for habeas relief. Jones’s application comes more than 24 years after entering his guilty plea, and
16 years after discharge from community supervision and dismissal of his case.
Jones explains the delay by asserting he was advised by counsel that his requirement to
register as a sex offender would end upon his completion of community supervision. Upon his
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discovery that he was still on the sex offender registry, Jones rehired his trial counsel to remedy
what he thought was simply a mistake. Trial counsel wrote the Department of Public Safety (DPS)
about this issue on May 14, 2008. Eight years after that letter to the DPS, Jones consulted another
attorney, who then requested the State’s file in late 2017. Jones’s newer counsel averred in his
declaration under penalty of perjury that the State would not reveal anything in their file, but the
prosecutor he met with otherwise claimed there was nothing in the file indicating that the offense
had occurred before Jones’s 17th birthday. In 2021, counsel again requested the file from a newly
elected district attorney, and counsel was provided with the State’s file on September 27, 2021.
On review of the record, Jones offered no explanation for the two-year delay between the
end of his community supervision and his trial counsel’s request that DPS remove Jones’s name
from the sex offender registry. Likewise, Jones offered no explanation for the eight-year delay
between that inquiry and his hiring of another attorney to look into the matter, except that he
ultimately sought different counsel “because of the expanding restrictions on sex offenders and the
ever increasing, unpredictable and unfair burden on [his] growing family[.]”
The trial court expressly found Jones’s delay was unreasonable and was not justified.
Although there is no bright-line time period in which a defendant must seek habeas relief under
Article 11.072, Jones’s delay is well past the five-year mark that the Court of Criminal Appeals
has recognized as the point that “may generally be considered unreasonable in the absence of any
justification for the delay.” Perez, 398 S.W.3d at 216 n. 12.
Additionally, the trial court found that the State has been prejudiced both in its ability to
retry Jones’s case and it its ability to respond to his writ allegations. The trial court found that at
the time of trial the victim was already experiencing difficulty in differentiating the instances in
which Jones fondled different parts of her body and when he touched her anus. The court also
found Jones’s trial counsel did not recall many of the particulars of his representation of Jones.
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We find support for these findings of fact in the record in the victim’s statement and in trial
counsel’s affidavit. In addition, the trial court found that due to the passage of time, it may be more
difficult for the State to locate witnesses and the witnesses’ memories may have significantly
diminished. These are reasonable inferences that the reliability of a retrial would be compromised
by this 24-year delay. See id.
Ultimately, the trial court concluded that Jones’s delay was not justified and that the State
demonstrated it had been prejudiced by Jones’s delay. The trial court also determined that Jones
failed to present evidence of any compelling reason why laches should not apply. Viewing the
record in the light most favorable to the trial court’s findings and affording almost total deference
to same, especially those that turn on credibility and demeanor, we conclude the trial court did not
abuse its discretion by determining that the doctrine of laches applied such that it barred Jones’s
claims for habeas relief. Ex parte Becciu, 615 S.W.3d 482, 496 (Tex. App.—Houston [1st Dist.]
2020, no pet.); Medrano, 2022 WL 1681860, at *3.
We overrule Jones’s fourth issue. Because of our disposition of this issue, we need not
address Jones’s first, second, or third issues. See TEX. R. APP. P. 47.1.
V. THE HEARING REQUIRMENT
Next, we address Jones’s fifth issue and consider whether the trial court otherwise erred by
failing to hold an evidentiary hearing on Jones’s claim of actual innocence.
A. Article 11.072’s requirements
“Article 11.072 does not require a hearing when the issues can be resolved without one.”
Ex parte Arjona, 402 S.W.3d 312, 319 (Tex. App.—Beaumont 2013, no pet.); see also Ex parte
Cummins, 169 S.W.3d 752, 757 (Tex. App.—Fort Worth 2005, no pet.). “In making its
determination, the court may order affidavits, depositions, interrogatories, or a hearing, and may
rely on the court’s personal recollection.” TEX. CODE CRIM. PROC. ANN. art. 11.072, § 6(b); see
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also Cummins, 169 S.W.3d at 757 (Article 11.072 does not require trial court to conduct hearing
before rendering decision on relief sought).
Jones contends that several appellate courts, including this Court, have held that trial courts
should hold an evidentiary hearing to address claims of actual innocence under Article 11.072.
However, to be more precise, this Court has declined to impose a per se hearing requirement when
a claim of actual innocence is raised. See Ex parte Salazar, 510 S.W.3d 619, 627–28 (Tex. App.—
El Paso 2016, pet. ref’d). Rather, this Court and other appellate courts have held that under certain
circumstances there can be an entitlement to a hearing on a claim of actual innocence. See id.; Ex
parte Franklin, 310 S.W.3d 918, 922–23 (Tex. App.—Beaumont 2010, no pet.). The right is
triggered when an applicant presents evidence that constitutes an affirmative showing of innocence
as set forth by the Court of Criminal Appeals. Franklin, 310 S.W.3d at 921–22 (citing Ex parte
Brown, 205 S.W.3d 538, 545 (Tex. Crim. App. 2006) (recognizing two types of innocence
claims—a Herrera claim and a Schlup claim)). To obtain a hearing when asserting a bare claim of
actual innocence, the applicant must show:
(1) by clear and convincing evidence that, despite the evidence of guilt that supports
the conviction, no reasonable juror could have found the applicant guilty in light of
the new evidence and (2) the evidence the applicant relies upon is “newly
discovered” or “newly available” meaning it was not known to the applicant at the
time of trial and could not have been known to the applicant even with the exercise
of due diligence.
Ex parte Harris, No. 05-18-00008-CR, 2018 WL 2749686, at *1 (Tex. App.—Dallas May 31,
2018, no pet.).
In Franklin, the newly discovered evidence involved a recantation by the complainant of
the allegation that led to the applicant’s conviction for aggravated sexual assault of a child. See
Franklin, 310 S.W.3d at 920. In Salazar, there was evidence of a child witness’s affidavit reversing
the previous stance on her accusation made against the applicant. See Salazar, 510 S.W.3d at 628.
In both, the appellate court reversed and remanded for the trial court to conduct a hearing on the
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actual innocence claim, without expressing an opinion on the merits of the appellant’s actual
innocence claim. See id.; Franklin, 310 S.W.3d at 920.
B. Analysis
The “newly discovered or newly available evidence” Jones brings forth is the “newly
obtained prosecution file” which he asserts he only received in 2021 after the State had earlier
refused to disclose it in 2017. From this file, Jones asserts the victim mentions he had touched her
on her buttocks, but nowhere did she mention he touched her anus. He also asserts his forensic
psychologist report independently confirms that he never touched the victim’s anus. Jones also
relies on a 1997 psychologist’s report, as well as the 1997 statements of the victim and her mother,
to assert the touching occurred prior to Jones’s 17th birthday.
Jones asserts the State’s file was never provided to his defense counsel and, even if it had
been obtained, the records were never made available to Jones himself. The trial court specifically
made a finding that the offense reports were available to Jones at the time of his guilty plea in
1998. On this record, we conclude that Jones’s evidence is not newly discovered evidence, as it
was all available to him in 1997, prior to his entering of a guilty plea.
Even so, the existing investigation report—which Jones asserts is insufficient to meet the
allegations of the indictment—significantly differs from the conflicting statements from a
complaining witness obtained in Franklin and Salazar. That type of conflicting evidence is a more
compelling demonstration of innocence than Jones’s contention about a report that he only recently
contends as being insufficient to support the elements of the offense. His reliance on the newly
discovered evidence is based only on his assertion that the State would not have been able to
sufficiently prove the charged offense at trial. On this record, however, we are not persuaded.
Notably, the habeas record also includes a transcript of Jones’s testimony at the plea hearing
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wherein he admitted to the allegations in the indictment and confessed to having committed the
charged offense.
Because we conclude that Jones has not brought forward newly discovered affirmative
evidence that unquestionably establishes his innocence, he has failed to trigger an entitlement to
an evidentiary hearing. See Ex parte Harris, 2018 WL 2749686, at *5 (holding appellant had failed
to present newly discovered affirmative evidence that unquestionably established her innocence,
and she was not entitled to a hearing on her 11.072 habeas corpus application); cf. Franklin, 310
S.W.3d at 920; Salazar, 510 S.W.3d at 628.
We overrule Jones’s fifth issue.
VI. CONCLUSION
Finding no error, we affirm the trial court’s order denying Jones relief under Article 11.072.
GINA M. PALAFOX, Justice
September 1, 2023
Before Rodriguez, C.J., Palafox, and Soto, JJ.
Palafox, J., concurring
(Do Not Publish)
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