EX PARTE TAPIA v. << (2026)

OPINION

Applicant was convicted in two cases of aggravated robbery and sentenced to life imprisonment. The First Court of Appeals affirmed his convictions. Tapia v. State, Nos. 01-06-00916-CR & 01-06-00917-CR (Tex. App.—Houston [1st Dist] Jan. 15, 2008)(not designated for publication). Applicant filed these applications for writs of habeas corpus in the county of conviction, and the district clerk forwarded them to this Court. See Tex. Code Crim. Proc. art. 11.07.

Applicant contends that appellate counsel failed to timely inform Applicant that his conviction had been affirmed. Based on the record, the trial court has determined that appellate counsel's performance was deficient and he is entitled to relief.

Relief is granted. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997); Ex parte Crow, 180 S.W.3d 135 (Tex. Crim. App. 2005). Applicant may file an out-of-time petition for discretionary review of the judgments of the First Court of Appeals in cause numbers 01-06-00916-CR & 01-06-00917-CR. Should Applicant decide to file a petition for discretionary review, he must file it with this Court within thirty days from the date of this Court's mandate.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional Institutions Division and the Board of Pardons and Paroles.

DISSENTING OPINION

More than seventeen years after the court of appeals issued its mandate disposing of his combined appeal in three cases, Applicant filed a habeas application requesting an out-of-time petition for discretionary review (PDR) in one of those cases. Despite the lateness of his claim, this Court granted Applicant relief.¹ A little more than a month after we granted that relief—and about eleven months after he had filed that first habeas application—he filed habeas applications in his other two cases requesting out-of-time PDRs. In those applications, he points out that we granted him an out-of-time PDR in his first case and asks that we similarly grant out-of-time PDRs in his other two cases. Really?

No doubt this Court would have granted relief in all three cases if they had been raised at the same time. Applicant gives no excuse for the delay in filing his other two cases, and none is apparent from the record. I would hold that being vexed with piecemeal litigation is a cognizable form of prejudice that the doctrine of laches can protect, and that this form of prejudice is sufficient to deny relief in Applicant's case. Applicant has engaged in a two-fold delay, the second of which is transparently inexcusable, and—as our recent refusal of PDR in his first case shows—he has no chance of obtaining relief in an out-of-time PDR on his remaining two cases. Allowing Applicant to file out-of-time PDRs in these cases is a waste of everyone's time and, frankly, a charade. Consequently, I would deny relief on the basis of laches.

I. BACKGROUND

Applicant was convicted of aggravated assault on a peace officer and of two counts of aggravated robbery, and he was sentenced to three concurrent life sentences. He appealed all three cases, arguing only that his sentences were cruel and unusual.² The court of appeals issued a single opinion affirming all three convictions on July 6, 2007.³ The court of appeals rejected Applicant's claim as unpreserved because it was not raised at trial or in a motion for new trial.⁴ The court of appeals also pointed out that the sentences were within the statutory range of punishment and ran concurrently.⁵ On January 15, 2008, the court of appeals issued its mandate.

More than seventeen years later, on April 8, 2025, Applicant filed a habeas application requesting an out-of-time PDR. He claimed that counsel was late in notifying him of the court of appeals's opinion and attached a letter that purported to be dated October 17, 2007. On January 29, 2026, this Court granted relief.⁶

On March 5, 2026, Applicant filed habeas applications in his other two cases. In each of these applications, Applicant raises two claims. The first claim in each application is entitled “Out-of-Time PDR”and argues as follows:

Crispin M. Linton did not notify Applicant of the 1st Court of Appeals’ affirmance until nearly 100 days after the decision. Applicant would have availed himself of the PDR process had Crespin M. Linton notified him in time. This case was decided the same day as causes 1053651 and 1052493. The court of criminal appeals has recently granted out-of-time PDR in cause no. 1053651. See In re Tapia 2026 Tex. Crim. App. LEXIS 36 (Tex. Crim. App. 2026).7

The second claim in each application is entitled “Ineffective Assistance of Appellate Counsel” and argues as follows:

Attorney Crispin M. Linton failed to notify Applicant that his appeal had been affirmed within time to file a PDR in the Texas Court of Criminal Appeals. This writ is based on the same set of facts as in the recent decision inside In Re Tapia 2026 Tex. Crim. App. LEXIS 36 (Tex. Crim. App. 2026).8

The applications contain no other allegations, and Applicant did not attach a supporting memorandum. Clearly, Applicant is simply piggybacking off of his earlier application.

II. ANALYSIS

Laches is an equitable doctrine that, based on the passage of time and the existence of prejudice, can require the denial of habeas relief.⁹ This Court has adopted a “sliding scale” for assessing whether prejudice has been shown: the longer the delay, the less evidence is required, especially when the delay greatly exceeds five years.¹⁰ Prejudice can come in a variety of forms, including (1) hindering of the State's ability to respond to the habeas applicant's allegations and (2) prejudicing the State's ability to retry the case.¹¹

But our currently controlling precedent has not limited the prejudice inquiry to those two forms of prejudice; to the contrary, we have rejected any “formulaic standard in favor of the more flexible common-law approach.”¹² The latter flexible approach allows “consideration of anything that places the State in a less favorable position ․ so that a court may consider the totality of the circumstances in deciding whether to grant equitable relief.”¹³ And we have later suggested that prejudice does not have to be limited to the prosecuting authority—that we may consider the “interests of the judicial system and society generally because they implicate values that may stretch beyond the concerns of the parties.”¹⁴

Addressing laches on our own is appropriate for “an excessive delay that undermines or obstructs the principles and virtues the criminal-justice system promotes.”¹⁵ In the habeas context, one principle of the criminal justice system is the avoidance piecemeal litigation: “[W]ithout full presentment and examination of all issues in [an] application, we only invite piecemeal litigation, which is an inappropriate use of the Great Writ.”¹⁶ And we have said that if a habeas applicant “has grounds which would justify the granting of the relief he seeks, he should present them with dispatch for determination, rather than doling them out one-by-one in repeated attempts to have both the benefits of relief and the fleeting pleasures of harassing those who confine him.”¹⁷ The legislature has enacted a subsequent-application prohibition designed, absent exceptional circumstances, to afford habeas applicants only “one bite at the apple.”¹⁸ And our common-law abuse-of-the-writ doctrine seeks to prevent habeas applicants from “doling” out their claims.¹⁹ And we disfavor the practice of a trial habeas court making findings on only some of the claims presented in an application because of our desire to avoid piecemeal litigation.²⁰

In the present case, the applications before us do not violate the letter of these prohibitions against piecemeal resolution—because his claims involve different convictions—but they certainly violate the spirit of these prohibitions. The multiple convictions in Applicant's cases were handled in a single appeal. In that appeal, Applicant raised a single claim common to all three convictions. And Applicant makes no effort whatsoever to distinguish the current applications from his prior application. To the contrary, he explicitly invokes the relief he obtained in his prior application to justify relief in these applications. Applicant could easily have litigated all three applications at the same time. Had he done so, this Court would have needed to issue only a single order granting out-of-time PDRs, and once he sought discretionary review in these cases, we could have disposed of the cases at the same time. Instead, he has split his companion cases, doubling the time spent reviewing his claims by both the judges and this Court's internal staff. Applicant has wasted our time—and seeks to waste it further with a second round of PDRs.

Perhaps that would not matter if there were at least some small chance of success on his claims. But there is not. He has already had his “dry run” with his first PDR, and it was refused. That PDR did not even address the one claim he had raised in the court of appeals. But as Applicant noted in his prior habeas application, he has no chance of success on the claim the court of appeals did address.²¹

Of course, a deprivation-of-PDR claim does not require a showing that he would have succeeded in getting his PDR granted.²² But after eighteen years and a prior round of habeas, more should be required then merely meeting the requirements of his substantive claim. Whether Applicant has any chance of succeeding on PDR is certainly relevant to whether equity favors granting an out-of-time-PDR claim that was raised both late and after prior litigation.

I could, of course, just quietly go along with granting relief and then later quietly go along with refusing his next PDR. Perhaps I have spent more time than those things would have taken by writing this dissent. But granting relief here would just be “going through the motions” and engaging in a charade, and at least for future applicants, this case could be a cautionary tale: If an applicant is already late, he should file his multiple applications for companion cases at the same time (or at least reasonably close in time), instead of adding insult to injury by doling them out over an extended period in piecemeal fashion.

I respectfully dissent.

FOOTNOTES

1.   Ex parte Tapia, No. 96,741-01, slip op. (Tex. Crim. App. January 29, 2026) (not designated for publication); see also Ex parte Tapia, 730 S.W.3d 409 (Tex. Crim. App. 2026) (Schenck, P.J., concurring; Parker, J., dissenting).

2.   Tapia v. State, Nos. 01-06-00916-CR, 01-06-00917-CR, 2007 WL 1953771 (Tex. App.—Houston [1st Dist] July 6, 2007) (not designated for publication).

3.   Id.

4.   Id.

5.   Id.

6.   See supra at n.1.

7.   Some capitalization converted to lowercase for ease of reading. The trial cause number in Applicant's second application was 1064778. Applicant's third application, however, simply repeats verbatim the allegations in the second application, and so includes its own cause number where one would have expected to see the cause number relating to Applicant's second application.

8.   Some capitalization converted to lowercase for ease of reading.

9.   Ex parte Hill, 711 S.W.3d 221, 222, 225 (Tex. Crim. App. 2025).

10.   Id. at 225.

11.   Ex parte Perez, 398 S.W.3d 206, 212-13, 215 (Tex. Crim. App. 2013).

12.   Id.

13.   Id. at 215 (emphasis added, ellipsis inserted).

14.   Ex parte Smith, 444 S.W.3d 661, 668 (Tex. Crim. App. 2014).

15.   Id.

16.   Ex parte Roark, 662 S.W.3d 469, 469 (Tex. Crim. App. 2021) (bracketed material substituted for original).

17.   Ex parte Carr, 511 S.W.2d 523, 525 (Tex. Crim. App. 1974).

18.   In re Texas Dep't of Crim. Justice, 710 S.W.3d 731, 738 (Tex. Crim. App. 2025) (emphasis in original).

19.   Carr, 511 S.W.3d at 525; cf. Wood v. State, 693 S.W.3d 308, 337 (Tex. Crim. App. 2024) (motion-for-DNA-testing context, quoting from Carr).

20.   Roark, 662 S.W.3d at 469-70.

21.   See Ex parte Tapia, 730 S.W.3d 409, 414 (Tex. Crim. App. 2026) (Parker, J., dissenting).

22.   Ex parte Crow, 180 S.W.3d 135, 138 (Tex. Crim. App. 2005).

Per curiam.

Parker, J. filed a dissenting opinion, joined by Yeary, J.