Wasserman, Charles Devon

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. WR-82,735-02

EX PARTE CHARLES DEVON WASSERMAN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 12-10-11,721-A IN THE 24TH DISTRICT COURT FROM DEWITT COUNTY

YEARY, J., filed a concurring opinion in which SLAUGHTER, J., joined. CONCURRING OPINION

Applicant was convicted in 2013 of aggravated sexual assault of a child and

sentenced to ninety-nine years’ imprisonment. The Thirteenth Court of Appeals affirmed

his conviction in 2014. Wasserman v. State, No. 13-13-00144-CR (Tex. App.—Corpus

Christi-Edinburgh Aug. 14, 2014) (mem. op., not designated for publication).

In November 2021, Applicant filed an application for writ of habeas corpus in the

county of conviction. In his application, he alleges actual innocence, ineffective counsel,

and prosecutorial misconduct, among other grounds. TEX. CODE CRIM. PROC. art. 11.07.

Today, the Court remands this application to the trial court to further develop the

record. I join the Court’s remand order. But I write separately to address my thoughts

concerning the doctrine of laches and its possible application to this case. See Ex parte WASSERMAN — 2

Smith, 444 S.W.3d 661 (Tex. Crim. App. 2014) (holding a trial court has the authority to

sua sponte consider the doctrine of laches); Ex parte Bazille, ___ S.W.3d ___, No. WR-

89,851-02, 2022 WL 108348 (Tex. Crim. App. Jan. 12, 2022) (Yeary, J., concurring).

The doctrine of laches ought to be considered in a case like this one. Applicant’s

trial occurred in 2013, but this writ application was not filed until eight years later. 1 The

record is also silent regarding circumstances that may excuse Applicant’s delay, and at

least some explanation for the long delay in filing should be provided.

Consistent with this Court’s precedent, the trial court may, sua sponte, give

Applicant the opportunity to explain the reasons for the delay. It may also give the State’s

prosecutors and/or former counsel for Applicant an opportunity to state whether

Applicant’s delay has caused any prejudice to their ability to defend against Applicant’s

claims. And ultimately, the trial court may include findings of fact and conclusions of law

concerning the doctrine of laches in its response to this Court’s remand order.

With these additional thoughts, I join the Court’s order.

FILED: March 9, 2022 DO NOT PUBLISH

1 “Our revised approach will permit courts to more broadly consider the diminished memories of trial participants and the diminished availability of the State’s evidence, both of which may often be said to occur beyond five years after a conviction becomes final.” Ex parte Perez, 398 S.W.3d 206, 216 (Tex. Crim. App. 2013) (citing Ex parte Steptoe, 132 S.W.3d 434, 437–39 (Tex. Crim. App. 2004) (Cochran, J., dissenting)).