In the Court of Criminal 

Appeals of Texas

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NO. WR-94,371-02

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EX PARTE CORY ROSS,

Applicant

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On Application for a Writ of Habeas Corpus

Cause No. W11-31175-Q(A) in the 204th District Court

From Dallas County

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YEARY, J., filed a dissenting opinion in which SLAUGHTER, J., 

joins.

On March 6, 2015, Applicant was adjudicated guilty of injury to a 

child and sentenced to confinement for forty years. He appealed, but on 

March 11, 2016, the court of appeals affirmed the trial court’s judgment. 

Unfortunately, Applicant’s counsel did not inform him of the court of 

appeals’ decision until June of 2016, well outside the time for filing a 
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petition for discretionary review (PDR). Applicant did not file a PDR, 

and his judgment became final. 

Applicant was notified about the court of appeals’ decision 

denying him relief by a letter from his counsel drafted on June 9, 2016. 

Critically, in that same letter, Applicant’s counsel told him:

You might be able to obtain an out of time Petition for 

Discretionary Review (PDR), but you must file a writ of 

habeas corpus with the trial court. The trial court can 

recommend to the Texas Court of Criminal Appeals that 

you be granted the right to file an out-of-time PDR. 

The letter from Applicant’s counsel also: (1) gave him instructions on 

how to pursue a writ; (2) explained the argument that he could make—

that he did not receive timely notice from his counsel about the court of 

appeals’ decision; and (3) asserted that the letter itself enclosed a form 

for Applicant to use to prepare his application. 

Now, almost seven years later, Applicant has finally filed an 

application for the writ of habeas corpus. Among other claims made in 

his application, Applicant seeks the right to file an out-of-time PDR. 

Applicant provides no explanation for his extremely long delay. But the 

Court grants him the right to file an out-of-time petition anyway. I 

cannot join the Court’s decision.

To better understand the circumstances presented by this 

application, consider the usual time for filing a PDR. Our rules 

ordinarily permit the filing of a PDR up to 30 days after the court of 

appeals renders its judgment. TEX. R. APP. P. 68.2(a). If Applicant had 

acted right away, immediately after he became aware of the court of 

appeals’ decision in his case, he would have sought the right to pursue 
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an out-of-time PDR at three times the number of days that our rules 

ordinarily permit for filing a PDR. But because Applicant waited to file 

his writ application until December of 2022, he first sought to pursue 

his PDR rights at close to eighty times the number of days that our rules 

ordinarily permit for filing a PDR.

Because the Court grants relief in the form of an out-of-time PDR 

in these circumstances, it makes me wonder how long would be too long 

to wait to pursue an out-of-time PDR. Would ten years be too much? 

Would twenty years be too much? Would fifty years be too much? 

Perhaps the answer is that there is no limit. But the Court does not 

address that question today. 

I have regularly urged the Court and our trial courts as well, 

when addressing long delayed applications for the writ of habeas corpus, 

to consider the doctrine of laches. See, e.g., Ex parte Bazille, 663 S.W.3d 

68 (Tex. Crim. App. 2022) (Yeary, J., concurring). In Ex parte Perez, 398 

S.W.3d 206 (Tex. Crim. App. 2013), this Court explained that the 

doctrine of laches is defined as:

neglect to assert 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. 

Id. at 210 (quoting from Ex parte Carillo, 992 S.W.2d 486, 487–88 (Tex.

Crim. App. 1999), which itself quoted from BLACK’S LAW 

DICTIONARY 875 (6th ed. 1990)). But the definition quoted by the 

Court did not stop there. Without great elaboration, the Court’s 

definition also included the following language:

Also, it is the neglect for an unreasonable and unexplained 

length of time under circumstances permitting diligence, to 
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do what in law, should have been done.

Id. The first part of the definition: (1) focused on “neglect” in asserting a 

right or claim; and (2) invoked a notion of delay that causes prejudice to 

an adverse party as part of its calculation. But the second part eschewed 

any notion of prejudice to an adverse party and focused only on delay 

that is (1) unreasonable; and (2) unexplained. It is this second part on 

which I focus today. 

Habeas corpus, this Court has said, is an “equitable remedy.” Id.; 

Ex parte Moreno, 245 S.W.3d 419, 428 (Tex. Crim. App. 2008). Courts 

exercising equitable powers do so as a matter of their sound discretion.

See, e.g., Johnson v. Cherry, 726 S.W.2d 4, 8 n.2 (Tex. 1987) (“The 

exercise of our equitable power is discretionary[.]”); Bocquet v. Herring, 

972 S.W.2d 19, 21 (Tex. 1998) (“Matters of equity are addressed to the 

trial court’s discretion.”). According to this Court’s precedents, “equity 

aids the diligent and not those who slumber on their rights.” Moreno, 

245 S.W.3d at 428−29. This same principle of equity has also been 

recognized by our sister Court, the Supreme Court of Texas. Rivercenter

Associates v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (explaining that

“equity aids the diligent and not those who slumber on their rights”)

(internal quotation marks and brackets omitted). And, at times, the 

Supreme Court has found that delay alone without explanation, and 

without consideration of any notion of prejudice to an adverse party, is 

sufficient reason to deny equitable relief. 

In Rivera, for example, Rivercenter sought mandamus relief 

“from a trial court’s order overruling its motion to quash [a] jury 

demand[.]” The Supreme Court observed that “Rivercenter waited over 
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four months after the filing of the Defendants’ jury demand before 

asserting any rights it may have had under the jury waiver provisions[,]” 

and that, “[t]he record reveal[ed] no justification for this delay.” Id. 

“Under these circumstances”—presumably those where the record 

showed a delay and no explanation for it—the Court concluded, 

“Rivercenter ha[d] not shown diligent pursuit of any right to a non-jury 

trial.” Id. And the relief that was sought was denied. Id. at 368.

The Fourth Court of Appeals has also recognized that equity does 

not favor a remedy in the face of unexplained delay. In re State ex rel.

Hilbig, 985 S.W.2d 189 (Tex. App.—San Antonio 1998). In Hilbig, the 

State sought mandamus relief against a trial court arguing that it had 

no authority to terminate probationary periods in certain felony driving 

while intoxicated cases pursuant to Section 20 of former Article 42.12 of 

the Code of Criminal Procedure. Id. at 190 (citing former TEX. CODE 

CRIM. PROC. art. 42.12, § 20). The court of appeals agreed with the State 

that the trial court “acted outside the scope of Section 20,” but it denied 

mandamus relief on the ground that the State had “waited an average 

of fifteen months to complain about the [trial court’s] rulings” and had 

“offered no direct explanation for the passage of time.” Id. at 192. 

Whether derived from the doctrine of laches or from some other 

equitable doctrine or rule, the principle that “neglect for an 

unreasonable and unexplained length of time under circumstances 

permitting diligence, to do what in law, should have been done” is well 

grounded, and it supports denial of equitable relief. Its elements are 

certainly satisfied by the facts of this case. Applicant waited nearly 

seven years after learning about the adverse decision of the court of 
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appeals in his case and after receiving notice that he could pursue an 

out-of-time PDR by filing a writ of habeas corpus in the trial court. Only 

then, after such an extreme delay, did Applicant finally file his habeas 

application requesting an out-of-time PDR. But “equity [should not aid] 

those who slumber on their rights.” Moreno, 245 S.W.3d at 428−29

(original brackets and quotation marks omitted).

Nearly seven years after Applicant received late notice from his 

counsel about the court of appeals’ decision rejecting his claims for relief 

on direct appeal, and even after Applicant received contemporaneous 

notice from counsel about how to pursue an application for habeas relief 

to restore his opportunity to pursue a PDR, and even without any 

explanation for Applicant’s extreme delay, the Court grants Applicant 

relief in the form of an out-of-time PDR. But the equities do not favor 

Applicant.

I would deny relief. Because the Court does not, I respectfully 

dissent.

FILED: September 20, 2023

PUBLISH