Tapia, Jose Ambrosio

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-96,741-01

EX PARTE JOSE AMBROSIO TAPIA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 1053651-A IN THE 339TH DISTRICT COURT

HARRIS COUNTY

Schenck, P.J., filed a concurring opinion.

CONCURRING OPINION

The First Court of Appeals affirmed Jose Ambrosio Tapia’s conviction of

aggravated robbery, and he now complains his appellate counsel failed to timely

inform him of this decision, arguing he would have filed a petition for discretionary

review had counsel properly informed him of his right to file a pro se petition. The

sole question presented at this stage in Tapia’s case is procedural—whether Tapia

TAPIA CONCURRENCE – 2

may be heard on review by an out-of-time petition for discretionary review—and the

Court today has granted Tapia relief to file.

We previously remanded to the convicting court the questions of whether (1)

Tapia had been deprived of notice of the adverse decision below as a result of a denial

of his right to effective counsel, and (2) whether relief should be denied on account

of laches. That court found Tapia had been denied timely notice as a result of

counsel’s ineffective assistance, found no basis for application of laches, and

recommended relief. This Court now grants relief in the form of opening the gate to

his filing of a petition. This procedural relief does not guarantee Tapia relief on the

merits of the arguments any future-filed petition may present, nor does it guarantee

he will inevitably file one. I thus concur in this Court’s decision and would find the

doctrine of laches should not bar relief on a procedural matter such as that before us.

While the U.S. Constitution does not compel a right to direct appellate

review, 1 once that right has been created, as it has here, due process assures that right

to be heard is not erroneously denied. See Griffin v. Illinois, 351 U.S. 12, 18 (1956)

(explaining the States are not compelled to offer review); cf. Evitts v. Lucey, 469 U.S.

1

Whether that holding remains correct or would be replicated under our State constitution

may be debatable but is ultimately irrelevant in view of our laws having conferred a right to be heard

on direct appeal in Article 44.02 of the Code of Criminal Procedure. Cassandra Robertson, The

Right to Appeal, 91 N.C. L. REV. 1219 (2013) (presenting case for recognition of federal due process

right).

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387, 399–00 (1985) (right to adequate counsel on direct appeal protected by due

process though right to direct review itself has not been); see generally Honda Motor

Co., Ltd. v. Oberg, 512 U.S. 415 (1994) (describing the State’s “aberrant” failure to

provide for appellate review as so contrary to contemporary standards as to deny due

process). This is the right that is the subject of Tapia’s application today. Nothing

more. Nothing less.

Unlike the right to be heard, which finds its basis in the federal Constitution,

the doctrine of laches is an equitable “theory which we may, and should, employ in

our determination of whether to grant relief . . . .” Ex parte Carrio, 992 S.W.2d 486,

488 (Tex. Crim. App. 1999), overruled in part by Ex parte Perez, 398 S.W.3d 206, 213-

15 (Tex. Crim. App. 2013). This doctrine assumes the longer an applicant delays in

bringing his claim, the greater harm the State would suffer in responding to it. See

Ex parte Perez, 398 S.W.3d 206, 217 (Tex. Crim. App. 2013) (explaining the State’s

interest in and potential for overcoming prejudice by claimant’s delay). 2 The

2

This Court’s laches jurisprudence recently includes Ex parte Hill, 711 S.W.3d 221, 226-

27 (Tex. Crim. App. 2025) (explaining this Court should avoid a “blow to the State’s legitimate

interest in the finality of its convictions, many years after the fact, without an adequate justification

for the delay . . . .”). This case follows several decisions on claims brought by Michael Charles

Hill, and, as expressed in my dissent in Ex parte Eddie Wells, the opinion in Hill’s progeny Judge

Parker cites to, Ex parte Hill, 632 S.W.3d 547, 553 (Tex. Crim. App. 2021), does not stand for the

proposition this Court may apply laches to reach even those claims which have not been raised and

may never be. Rather, that holding in Hill more properly applies to the proposition that the

application of laches turns on the claims pending before the Court.

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doctrine is primarily addressed to the question of substantive relief and is best

applied where substantive harm to the State’s abilities has actually been

demonstrated, as the trial court had found in Perez. While I have no doubt that laches

may preclude entertaining review (despite a constitutional violation resulting in the

loss of that right) where the evidence is so strong that substantive relief would not be

available, whether as a result of laches or otherwise, that substantive prospect of

relief is the proper target of the inquiry and the only one to which laches is targeted.

Cf. Perez, 398 S.W.3d at 219 (Meyers, J., dissenting) (noting decision prematurely

adjudged the controlling merits question). 3

In the case at hand, the State, in its reply to Tapia, asserts laches should

prevent the Court from permitting Tapia’s belated filing. Looking to Perez for

support, the State claims, “courts may more broadly consider material prejudice

resulting from delay,” including anything placing “the State in a less favorable

position, including prejudice to the State’s ability to retry a defendant,” and

considering “the totality of the circumstances in deciding whether to grant equitable

relief.” Judge Parker, in her dissent, fears lack of documentation of previous

3

While I tend to agree with Judge Meyers that the substantive relief question to which

laches is addressed is best addressed in connection with the merits, I do not rule out the

possibility of a showing of plain and obvious futility as to the direct review that would foreclose

relief at an earlier stage. Given the constitutional considerations informing the right to be heard,

denial on that basis should be the exception and not the rule.

TAPIA CONCURRENCE – 5

maneuvers in Tapia’s case would prejudice the State in its future response and any

affiliated court setting.

As noted, I have no doubt our discretion over the processing of habeas

applications leaves us free to recognize gross delays resulting in obvious prejudice

that would conclusively prohibit, on grounds of laches, our consideration of an

application. But the State’s argument and Judge Parker’s assertion skip the question

before us, looking to hypothetical future scenarios to assess prejudice as to Tapia’s

right to be heard at all, and the claim of prejudice here is neither so obvious nor so

conclusive that it would foreclose relief regardless of how obvious or profound

Tapia’s claim to it might be.

As detailed in my dissent in Ex parte Eddie Wells involving a parallel process

question, even broadly considering material prejudice, I would be inclined to slide

the scale toward the State’s favor if evidence existed that simply the act of filing

Tapia’s petition granted a blow to the finality of his conviction, or of actual harm

suffered by the State in an attempt to reply to it. 4 None exists, and thus I agree with

this Court’s decision to grant Tapia relief to file an out-of-time petition.

Filed: January 29, 2026

4

The Court’s decision today comes after Tapia complained, and after the State replied. It

appears the State suffered no prejudice in its ability to reply to his request for procedural relief.

We should not assume any prejudice in the matter at hand when there is no evidence of it.

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Publish