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.”
Ex parte Gardner Page 2

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 3

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 4

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 5

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 6

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 7

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

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