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Challenging felony charges in Texas with a pretrial writ

 Posted on May 13,2022 in Uncategorized

Texas trial courts are seeing an upward trend in pretrial writ of habeas corpus applications challenging felony indictments. This trend seems “organic,” i.e., there’s been no specific change in the law that attorneys are reacting to. It is unclear why the criminal defense legal community seems to be gravitating towards this strategy. I suspect that recent successful facial challenges to the constitutionality of a few Texas Penal Code provisions has put pretrial writs on the defense bar’s radar. But I don’t think anyone knows for sure.

In light of recent a recent Court of Criminal Appeals (“CCA”)decision — Ex parte Edwards, it’s helpful to for defense attorneys that do not regularly file writs to be mindful of what type of grounds are “cognizable” in a pretrial writ, i.e. what kind of grounds can be properly raised. This is because in Edwards the CCA appears to have rolled back what most lawyers considered a “safe” pretrial writ claim — arguing that the State indicated a defendant outside the statute of limitations.

In Edwards, the CCA held that you can only challenge the statute of limitations in a pretrial writ under very limited circumstances. The CCA suggested the better way to argue limitations is with a motion to dismiss.

Then the CCA gets into the weeds. They point out that “limitations” arguments aren’t constitutional in nature. They also point out that a 1985 Texas constitution amendment that I promise you’ve never heard of constrains your ability to make a limitations challenge through a pretrial writ.

The arguments the CCA makes strike me as over-technical, especially when you have the typically pro-State Judge Yeary dunking on the majority opinion and calling it ridiculous. He points out (reasonably!) that if the State indicts you outside the time frame described by the relevant statute of limitations, you should not have to wait until after trial to have a final ruling on your limitations argument.

But the more important lesson isn’t the validity of the CCA’s reasoning. The CCA is signaling that it’s going to be strict and narrow when considering whether a claim is cognizable. So be careful in your writ pleadings.

With the CCA’s signal in Edwards in mind, it makes sense to have a broad understanding of what grounds are “safe” in a pretrial writ. Here they are:

  1. challenge to the amount of defendant’s bail or the conditions of bail
  2. double jeopardy claim (a defendant’s right not to be tried for the same offense twice)
  3. facial constitutional challenge to a statute

What claims can’t be raised on a pretrial writ?

  1. a defendant’s right to a speedy trial
  2. statute of limitations violation that could potentially be rectified by amended indictment (see above)
  3. challenge to ruling on pretrial motion to suppress
  4. any collateral estoppel claim other than double jeopardy
  5. as-applied constitutional challenge to a statute

See Ex parte Weise, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001).

If you’re unsure whether your particular claim can be raised by pretrial writ, the CCA provides this guidance:

“A claim is cognizable in a pretrial writ of habeas corpus if, resolved in the defendant’s favor, it would deprive the trial court of the power to proceed and result in the appellant’s immediate release . . . the overarching principle when determining whether a claim is cognizable on pretrial habeas is that pretrial habeas relief is available in situations in which ‘the protection of the applicant’s substantive rights or the conservation of judicial resources would be better served by interlocutory review.'”

See Weise , 55 S.W.3d at 619.

I don’t think that guidance is very helpful, but at least you know how to frame your argument.

A few more thoughts . . .

A “facial” constitutional challenge to a statute means that the facts of the particular case in question are irrelevant. So the arguments you set out have to potentially apply to any an all possible applications of the statute.

In my opinion the “collateral estoppel other than double jeopardy” preclusion is the most dicey. Does that include incidents of prosecutorial misconduct? I know that retrial caused by prosecutorial misconduct fall under the double jeopardy framework. But if a case is retried explicitly for one reason and there’s also an incident of prosecutorial misconduct, can that claim be raised in a pretrial writ? I guess we will have to find out.

There will be other gray areas, I’m sure.

I anticipate prosecutors trying to get pretrial writs dismissed or denied based on aggressive “not cognizable” arguments. Defense attorneys should be ready with good counter arguments!

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