Posted on May 06, 2022 in Writs of Habeas Corpus

I recently prevailed on an 11.07 writ of habeas corpus for a client who had been convicted of one of the most serious allegations in the Texas Penal Code — Continuous Sexual Abuse of a Child.

Of course I was elated on the night that the Court of Criminal Appeals issued the opinion agreeing with the trial court’s findings. My client would get a new trial. He would get to bond out like any other defendant and return to his family. We had done what had seemed nearly impossible — convince the Court of Criminal Appeals to give my client another opportunity to fight for his freedom even after a Texas jury had convicted him of a terrible crime (in the face of my client’s continued and unwavering claims of innocence).

But, speaking generally now, it is hard not to feel a ceaseless sense of struggle, even when we win the post-conviction legal battles.

Part of the reason is obvious. If a client gets a new trial, he still faces conviction. Although many successful 11.07 writ cases end of pleading on more favorable terms for the defendant on remand (for reasons that can only be addressed in a separate blog post), the prospect of fighting the case again is always stressful, even when the client “has the wind at his sails” with a recent victory.

Continue Reading ››

 Posted on April 29, 2022 in Uncategorized

Is there anything you can do for a friend or family member who has been serving a prison sentence on an old case in Texas?

I often get calls about old cases — I’m talking convictions from the nineties. There’s many reasons why a family or inmate would reach out after so much time has passed. One is financial. Sometimes families reconcile with inmates and bring to bear new financial resources that weren’t available previously to assist the inmate in fighting his conviction. A second reason is new relationships. I’ve know many convicts who make connections in the outside world and form relationships with new people, gaining a new support network. These new friends and spouses will often reach out to my law firm to take a fresh look at their loved one’s case.

I ask the same questions every time:

1. Has your loved one filed an 11.07 writ before?
2. What’s the news since your loved one was convicted or last filed a writ?

Continue Reading ››

 Posted on April 15, 2022 in Uncategorized

During consultations, potential clients and their family members often ask me when they should file an 11.07 writ to challenge a Texas felony conviction.

There’s a couple of things to keep in mind.

First, you can’t file it too soon.

The conviction you’re trying to challenge must be final. So if you have a trial and then appeal your conviction, you have to wait until the appellate court issues an opinion, the time has elapsed for all post-opinion motions has elapsed, such as petitions for discretionary review and motions for re-hearing, and mandate has issued. Mandate is just the official document announcing that the conviction is final. Mandate won’t issue until all appellate courts have had their final say on your appeal.

If you pled guilty and didn’t have a trial, then your conviction is final 30 days after you entered your plea, which is when trial court loses its plenary jurisdiction. Of course, if you file a motion for new trial, that time line will be extended.

Continue Reading ››

 Posted on March 25, 2022 in Uncategorized

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.

Continue Reading ››

 Posted on March 04, 2022 in Uncategorized

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!

Continue Reading ››

 Posted on October 08, 2021 in Uncategorized

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.

Continue Reading ››

 Posted on August 06, 2021 in Post Conviction

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.

Continue Reading ››

 Posted on May 29, 2020 in Writs of Habeas Corpus

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.

Continue Reading ››

 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.

Continue Reading ››

 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: