In the Court of Criminal
Appeals of Texas
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No. WR-74,867-02
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EX PARTE DANIEL TOLOPKA, II,
Applicant
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ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. CM-06-522 IN THE 278th DISTRICT COURT
FROM LEON COUNTY
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YEARY, J., filed a concurring opinion, in which KELLER, P.J., and
SLAUGHTER, J., joined.
Applicant was convicted in 2007 of murder and sentenced to 99
years’ imprisonment. The Seventh Court of Appeals affirmed his
conviction. Tolopka v. State, No. 07-0008-CR (Tex. App.—Amarillo Jan.
31, 2010) (not designated for publication).
Tolopka – 2
In April of 2022 Applicant filed an application for writ of habeas
corpus in the county of conviction. TEX. CODE CRIM. PROC. art. 11.07. In
his application, he alleges ineffective assistance of trial counsel.
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 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 2007, but this writ application was not
filed until almost 15 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 consider and determine whether laches should bar relief.” Smith,
444 S.W.3d at 667. If the trial court does so, it must give Applicant the
opportunity to explain the reasons for the delay and 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
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)).
Tolopka – 3
defend against Applicant’s claims. Id. at 670. 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: August 24, 2022
DO NOT PUBLISH
Tolopka, Daniel Ii
Combined Opinion