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Challenging deadly weapon findings on direct appeal and in 11.07 writs in Texas
Inmates convicted of non-aggravated crimes who have a deadly weapon finding on their judgments may have a unique opportunity to challenge their sentence. Because of the outsized impact of the deadly weapon finding on an inmate prison’s time, I wanted to set out how deadly weapon findings work in Texas and describe the typical ways in which they are challenged post-conviction.
What is an affirmative deadly weapon finding?
The Court of Criminal Appeals’ definition is: “the trier of fact’s express determination that a deadly weapon or firearm was used or exhibited during the commission of the offense.” Polk v. State, 693 S.W.2d 391, 393 (Tex. Crim. App. 1985).
The Court is saying that an “affirmative finding” is an “express determination.”
Not too helpful.
It’s better to just think about it in practical terms. If the State alleges in the indictment the magic phrase “used or exhibited a deadly weapon” and the jury finds you guilty as charged, then, practically speaking, the jury has made a deadly weapon finding.
Ariadne’s thread: Using 11.07 and 11.073 writs to challenge DNA evidence
In the famous Greek myth, Princess Ariadne helps Theseus negotiate the Minotaur’s maze by giving him a ball of thread so he could backtrack if he got lost.
The phrase “Ariadne’s Thread” refers to to the problem-solving technique of keeping a meticulous record of each step taken, so that you can always backtrack and try alternatives if your first efforts fail to yield results.
It’s a useful metaphor for understanding the tedious task of challenging DNA evidence. You have to backtrack, note dead ends, attempt iterations that may not yield results, then try again.
It’s a tedious and confusing process. So I’ve written this post to give an overview of how DNA evidence is gathered, the legal procedures available to challenge it, and how “new” scientific DNA evidence is generated.
If you have a loved one convicted on DNA evidence, then this post might serve as a helpful beginning primer. Just keep in mind I’m a post-conviction lawyer, not a DNA expert!
Texas parole street time explained
It’s hard to get an accurate grasp of Street Time Credit rules for parolees in Texas. The rules require some math, a proper understanding of the client’s criminal history, and, most annoyingly, an accurate assessment of how the client’s prior convictions are currently categorized in the Texas Code of Criminal Procedure.
Let’s unpack the rules. As always, this ain’t free legal advice, just a general overview. Please consult your lawyer to get professional advice on how the rules apply to your situation.
What is Street Time Credit and why does it matter?
You only care about this topic if you’ve got a loved in prison or facing parole revocation, so you probably already know the term. But what exactly does it mean? It refers to the time a paroled inmate spends on the “street” (on release and in the free world) prior to being revoked and getting sent back to prison. Street Time Credit is when TDC counts the time you were in the free world as part of your sentence.
11.07 Brady Claims in Texas: what did they know, and when did they know it
For those not familiar with the Supreme Court case Brady v. Maryland, it holds that a prosecutor has an affirmative duty to disclose material evidence favorable to the defense. It’s a simple enough directive, but the details of what comprises exculpatory evidence and whether the prosecutor has control of the evidence gets complicated.
And that’s just from the pretrial perspective.
If you’ve been convicted and are trying to argue that the prosecutor failed to disclose exculpatory evidence after the fact, you will run into surprising limitations on what you can argue.
The first limitation relates to whether your defense attorney had access to the exculpatory evidence prior to trial.
Ask yourself, how did you find out about this exculpatory evidence? Where you digging through the State’s case file that you obtained via a public information request? Did you find a notation in the clerk’s file that contradicts the prosecutor’s later claim in open court (this may seem like a strange thing to find, but you’d be surprised what can you turn up when combing through publicly-available subpoena and business record affidavits and then comparing them to things that occurred during trial or during a hearing). Did you talk to a witness that the trial attorney knew about? If so, you probably can’t use the evidence in a post-conviction Brady claim.
11.07 writs and actual innocence explained
Proving actual innocence in Texas by means of an 11.07 Writ of Habeas Corpus is extremely difficult. Judges on the Court of Criminal Appeals like to refer to the effort as a “Herculean Task” because the Applicant has to essentially refute the State’s original case with new evidence.
Families trying to decide on whether to hire habeas counsel and what amount of resources to spend need to understand the nature of the applicant’s burden and whether other potential grounds for relief should also be raised.
The Applicant’s burden
Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996) gives us the evidentiary framework. The phrase “in light of newly discovered evidence” is key to an “Elizondo” claim. The reviewing court has to take all the evidence the State used to convict the applicant during trial, and then weigh it against the newly-discovered evidence. Once the court has compared and contrasted the new evidence against the old evidence, it decides “the probable impact the new evidence would have had” on the jury if they’d heard it. If, after comparing the new evidence with the old, the State’s original case has been invalidated and “no reasonable juror would have convicted [the applicant],” and the applicant has established the new evidence by clear and convincing evidence, then he has met his burden of poof.
Prosecutorial misconduct appeals in Texas
In Texas, prosecutorial misconduct is usually framed as either a “Brady” violation or “false evidence” claim.
Either one of these types of claims can theoretically be raised on direct appeal, but in order for the merits of the claims to be considered by the appellate court the trial attorney would have to (1) learn of the misconduct, (2) object to it, and (3) make a record of it by means of a bill of exception or witness voir dire.
As a practical matter, if the record is not made of the alleged misconduct, you can’t raise it on direct appeal, even if you learn of the misconduct immediately after the time to file a motion for new trial expires. This is why defendants raise prosecutorial misconduct more often through an 11.07 writ of habeas corpus.
If you raise prosecutorial misconduct on direct appeal, the record must affirmatively show the misconduct and demonstrate harm. If you raise the issue on an 11.07 writ, you must prove by a preponderance of the evidence that favorable evidence was withheld or false evidence introduced, and its withholding or use contributed to your conviction or punishment.
subsequent writs, Article 11.073, and a question about future actual innocence claims
In Texas, a person convicted of a felony has a statutory right to file a subsequent application for writ of habeas corpus under Article 11.07 of the Texas Code of Criminal Procedure, but only under very narrow circumstances.
Section 4 of article 11.07 controls subsequent writs. It reads:
(a) If a subsequent application for writ of habeas corpus is filed after final disposition of an initial application challenging the same conviction, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that:
(1) the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application; or
11.07 Writ of Habeas Corpus and Effective Legal Challenges to Texas Open Pleas
In a previous post I discussed Open Pleas to judges in Texas.
In this post I want to explore how inmates can attempt to challenge their open pleas as involuntary by using the article 11.07 writ of habeas corpus, and what hurdles they face.
This post is for general research and interest only and should not be considered legal advice. As always, the specific facts of your case matter more than anything else. Please consult with an experienced post conviction attorney if you or a loved one are considering legal action.
First hurdle: The presumption that your plea was voluntary.
In order to have a sentencing hearing you have to plead guilty, which means you sign all the standard admonishments, formally enter your plea in front of the judge, and state (usually on the record) that you understand the consequences of your plea and are doing so voluntarily.
Playing Hot Potato: The Risks and Rewards of the Open Sentencing Plea in Texas
The Texas Code of Criminal Procedure allows for a defendant to plead “open” and get sentenced by the trial court. You can also have a jury sentencing hearing, but I’ll discuss that process in a separate post.
Defense attorneys often use the open sentencing procedure as a pressure release valve to resolve the tension between stubborn clients and/or stubborn prosecutors. Let me explain the process.
First, let’s define the phrase. An open plea means that the defendant pleads guilty, signs admonishments and stipulations that inform him of type of crime he is pleading guilty to, explain that he is waiving all rights related to trying the merits of the case to a jury, and specify the punishment range of the offense. But the defendant’s actual sentence is not yet fixed. It is up to the trial court to determine what the defendant’s sentence will be after holding an evidentiary hearing. At this hearing, both the prosecutor and the defense attorney have the opportunity to put on evidence for the court to consider before deciding what sentence the defendant should get.
TDCJ and Novel Coronavirus COVID-19 Updates
At this point everyone knows that TDCJ has cancelled all visitations, including attorney visits. On the plus side, attorney phone calls are easier to schedule. Although technically lawyers still need to provide on their I-62 request forms a legal basis for their phone call and specify a court proceeding or deadline that will occur within 30 days of the call, TDCJ appears willing to approve calls generally in lieu of a physical visit, even if no deadline is approaching.
I’ve been able to schedule multiple client calls with “In lieu of client visit” as the legal basis for the call.
ANECDOTAL UPDATES FROM CLIENTS AND THEIR FAMILIES:
Telford Unit: they are only allowing 10 inmates to chow at a time, which means that any single meal takes 3 1/2 to 4 1/2 hours for unit staff to process. This decision has ripple effects throughout the unit, as the Warden is now refusing to authorize lay-ins to the law library, which limits the ability of inmates to speak with their lawyers. The excruciatingly long chow time also makes it harder for inmates to make calls to family members.
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From our office in Conroe, Texas, we provide representation for clients in communities throughout Montgomery County, including Magnolia, Pinehurst, Montgomery, Panorama Village, Willis, Splendora, Patton Village, New Caney, Porter, and The Woodlands, as well as other areas surrounding Houston, including Spring, Katy Richmond, Friendswood, Galveston, Harris County, Fort Bend County, and Galveston County. We also represent clients throughout the state of Texas, including San Antonio and Bexar County, San Marcos and Hays County, Austin and Travis County, Georgetown and Williamson County, Dallas and Dallas County, Waco, El Paso, Corpus Christi, Abilene, Temple-Killeen, Forth Worth, Midland-Odessa, Lubbock, Tyler, and Tarrant County, and Denton and Denton County.
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