GRIFFIN, EX PARTE GARY v. the State of Texas

• Court: Court of Criminal Appeals of Texas
• Decided: September 3, 2025
• Docket: PD-0611-24
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. PD-0611-24

EX PARTE GARY GRIFFIN, Appellant

ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRD COURT OF APPEALS HAYS COUNTY

Per curiam. NEWELL, J., filed a concurring opinion joined by SCHENCK, P.J. PARKER, J., filed a dissenting opinion joined by YEARY, J.

OPINION

A jury convicted appellant Gary Lee Griffin of the offense of assault on a public

servant. The trial court assessed punishment at two years’ imprisonment and a $2,500 fine,

and suspended imposition of the sentence and placed Griffin on community supervision

for four years. On May 19, 2017, Appellant’s conviction was affirmed in Griffin v. State,

03-15-00398-CR (Tex. App.—Austin 2017) (mem. op., not designated for publication).

On August 31, 2020, Appellant filed an 11.072 application for writ of habeas corpus GRIFFIN — 2

alleging that his counsel was ineffective. On October 20, 2020, the trial court denied the

application. Due to a clerk’s error, counsel did not learn of the denial of the application

until December 14, 2020. On March 16, 2021—93 days after receiving actual notice of the

denial of the first application—Appellant filed a second 11.072 application. This second

application reraised an ineffective assistance of counsel claim related to trial counsel’s

performance and requested an out-of-time appeal on the denial of the first 11.072

application. The trial court denied relief on the grounds that Appellant received notice on

December 14, 2020, and “failed to file a motion for an out-of-time appeal within thirty

days of receiving notice.” The Third Court of Appeals suspended the appeal to allow the

trial court to clarify its order denying the second application. The trial court subsequently

issued an order dismissing the application as frivolous and determining that Appellant was

not entitled to relief based solely on the application’s contents.

On appeal, Appellant argued, inter alia, that the trial court erred by denying his

request for an out-of-time appeal based on a mistaken belief that the petition was subject

to a 30-day deadline. The majority of the court of appeals affirmed the trial court’s decision,

not on that basis, but instead faulting Appellant for not claiming his habeas counsel was

ineffective for waiting 93 days after being notified of the ruling before filing another

application for an out-of-time appeal. In re Griffin, 703 S.W.3d 831 (Tex. App.—Austin

2024) (J. Triana, dissenting) (op. on rehearing).

Appellant has filed a petition for discretionary review complaining that the court

below misapplied the concept of delay by turning its focus from the credibility of the claim GRIFFIN — 3

into a broader idea involving the actions of writ counsel. We agree with Appellant that this

conclusion by the lower court is not supported by our case law. Regardless of any delay by

appellate counsel, a 93-day delay, given the absence of a statutory deadline, should not

disqualify this case from being considered under Ex parte Riley, 193 S.W.3d 900, 901 (Tex.

Crim. App. 2006).

We therefore grant review of Appellant’s petition, vacate the judgment of the Court

of Appeals, and remand this case to the Court of Appeals for proceedings consistent with

this opinion.

Delivered: September 3, 2025

Do Not Publish