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Prosecutorial misconduct appeals in Texas

 Posted on May 14, 2020 in Uncategorized

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.

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subsequent writs, Article 11.073, and a question about future actual innocence claims

 Posted on April 24, 2020 in Writs of Habeas Corpus

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

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11.07 Writ of Habeas Corpus and Effective Legal Challenges to Texas Open Pleas

 Posted on April 10, 2020 in Writs of Habeas Corpus

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.

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Playing Hot Potato: The Risks and Rewards of the Open Sentencing Plea in Texas

 Posted on April 05, 2020 in Pleas

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.

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TDCJ and Novel Coronavirus COVID-19 Updates

 Posted on March 26, 2020 in Uncategorized

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.


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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The Texas Guilty Plea, Part 3: Proving an Involuntary Plea

 Posted on March 21, 2020 in Uncategorized

One of the most common grounds raised in Texas 11.07 writ of habeas corpus applications is the involuntary plea. Here’s the basics of how such grounds work and what you or your loved one will have to prove.

First, you must overcome the presumption that the plea was voluntary.

In my prior post I walked through the formalities of the plea process. These formalities include your written and oral statement (if the plea was recorded) that you understand the charges, that you’ve been fully and adequately advised by your attorney, and that your plea is knowing and voluntary. This paperwork creates a presumption of voluntariness that you must overcome in your writ application with affirmative evidence. A sworn statement by the applicant that his attorney misled him or misadvised him will never be enough evidence to overturn a guilty plea.

Here’s the type of claims and evidence you’ll need to overcome the presumption of voluntariness.

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The Texas Guilty Plea, Part 2: Plea Offers, Plea Bargains, and Judgements

 Posted on January 26, 2020 in Pleas

This is the second post in a three-part series about the guilty plea process in Texas criminal Courts.

In the first post I covered how the State of Texas locks in your guilty plea through a series of signed admonishments and waivers.

Today’s post covers the plea bargain and judgment. Please remember, the primary point of describing this (mostly boring) process is to inform clients and their families of the procedural protections created by the Texas Legal System to Protect Judgments and Guilty Pleas. You should at least have a basic familiarity with how the process works before deciding whether it is worth it to later challenge your plea.

Step 1: The Offer Conveyed

One of the basic requirements of a defense attorney is to accurately convey any plea offer made by the prosecutor. As a corollary to this, defense attorneys should always ensure that the prosecutor properly records all offers and counter-offers as the case progresses.

This sounds like an easy enough task, but as prosecutors have gotten loaded up with case and docket management software, sometimes discrepancies can develop between the “real” plea offer and the case summation typed the prosecutor in court or during a meeting with the defense attorney.

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The Texas Guilty Plea, Part 1: Admonishments and the Plea Colloquy

 Posted on January 12, 2020 in Writs of Habeas Corpus

Defendants usually don’t realize their guilty plea was involuntary at the time they enter it. This is because involuntary pleas are almost always based on a misunderstanding, misrepresentation, or ineffective assistance on the part of plea counsel. It takes awhile for the defendant to realize what has happened.

Trying to undo a guilty plea is never easy. Defendants often fail to understand the legal significance of what they’ve signed. If you’re regretting entering a guilty plea and want to fight it, ring up a good criminal appeal attorney, because, as you’ll see below, the strategy you need to fight it depends on the procedural details of the case and at what point in the process you realized you’d been crossed, mislead, or misadvised.

In a three-part series, I’m going to describe how the guilty plea is protected by the Criminal Justice System, how a plea bargain is immortalized into a judgment, how a plea open to the court works (and how defendants sometimes get screwed with this procedural arrangement), and how to challenge guilty pleas as involuntary.

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Constitutional and Statutory Rights for release on Discretionary Mandatory Supervision in Texas

 Posted on January 09, 2020 in Parole

I’m writing a series of blog posts on what constitutional rights you have, or don’t have, during the parole review process.

In my first article, I explained why inmates have no constitutional protection during normal parole review.

In this post, I focus on another type of statute-based parole review called discretionary mandatory release, which is controlled by Texas Government Code Section 508.149. Part (a) of the statute explains which inmates are eligible for mandatory release. See my post here for more information on eligibility. Part (b) provides a framework for parole boards to use when deciding if an inmate should be released to mandatory supervision.

Additionally, section 508.149 creates two parallel sets of rights for all eligible inmates, one set based on fundamental due process protections, and the second based on statute-based procedural guarantees for subsequent reviews if an inmate is initially denied release.

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Inside the belly of the beast: Your Constitutional Rights during Texas Parole Review

 Posted on December 22, 2019 in Parole

This is the first of a series of blogs I intend to right about what rights, if any, you get during various phases of the parole process.

This particular article focus on an inmate’s first contact with the Texas Board of Pardons and Parole – the initial parole review.

  1. The Rights You Lose Along the Way

Most attorneys and even most of their clients have a general familiarity with what rights the United States Constitution affords them during a traffic stop, investigation, arrest, plea, or trial. We’ve all heard of the right to remain silent, the right to have an attorney, and the right to confront the witnesses the State wants to call against you.

But after you’ve been convicted, you lose most of the those rights.

There’s an obvious reason why: either you’ve actively waived your rights pursuant to a plea agreement, or you used your rights during a jury trial and lost. You’re an inmate, a probationer, or a felon . Your rights have been expended, and now you’re in the belly of the beast — the Texas prison system.

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