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Timing is everything: “final convictions” and Article 11.07 writs

 Posted on September 05, 2018 in Writs of Habeas Corpus

New clients often ask me when they can apply for a writ of habeas corpus under Article 11.07. Unless they’ve been prison for awhile, my normal answer is, “Not yet.”

Article 11.07 refers to a section of the Texas Code of Criminal Procedure that establishes the procedures for filing an application for writ of habeas corpus afterbeing convicted of a felony offense. This may sound straight forward, but there are some procedural rules that limit when such an application can be filed.

First, your conviction has to be final. Or to use a technical phrase, “mandate” has to have issued. Mandate only issues when you have exhausted the direct appeals process. It’s probably easier to explain this with an example.

Let’s say a family member is convicted of felony aggravated assault (I’ll call this guy Paul). Once Paul finds out that he had been found guilty and is sentenced to prison, he has 30 days to file a notice of appeal (if Paul gets probation instead of prison, he can’t file a writ under Section 11.07, but must file under Section 11.072, a statute I will cover in a separate post). Filing the notice of appeal gives the intermediate appellate court jurisdiction over the case. If Paul doesn’t file the notice within 30 days of being sentenced, he loses the ability to file a direct appeal (unless an attorney sweeps in and manages to get a brief time extension), and mandate will issue. Paul can then file a writ of habeas corpus application under Section 11.07.

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Marijuana Edibles in Texas: Worth the Risk?

 Posted on May 09, 2018 in Uncategorized

As marijuana becomes legal in more States, the States where is it still illegal (Texas) are happily continuing to arrest and prosecute those that possess it. As you come back from Colorado with your legally purchased marijuana, you should know that not all marijuana is treated the same in Texas.

Possession of marijuana in its plant form will most likely be a misdemeanor – you have to work to get to a felony – we are talking over 4oz. If you are interested you can look at the statute here: Health and Safety Code section 481.121. This visual guide found on gives you an idea of how much marijuana you can carry and still be in the misdemeanor range.

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Working and Being on Probation in Montgomery County Gets Harder

 Posted on June 30, 2017 in Uncategorized

If you are on a felony probation, deferred adjudication, or just on conditions of bond for a pending felony case in Montgomery County, your life has gotten a lot harder this year.

Starting in January, the Montgomery County Probation Office began implementing a new randomized drug testing procedure. The policy requires all persons accused of a felony or who have pled to some type of felony probation or deferred adjudicationto call the office every day and see if they have to submit to a drug test.

Here’s how it works. First, the probation department issues you a PIN number. It is then your responsibility to call the office every morning, enter your PIN number, and learn from the automated system if you have to take a urinalysis that day. You then have until 5:00 p.m. to travel to the probation office had provide a sample for testing.

Sounds like a hassle, right? But you’re probably thinking it’s manageable.

This is the attitude of the adult probation office, which has articulated it’s purpose for the randomized procedure as a way to actively fight addiction while making the system fair and reasonable. They figure that it’s reasonable to give someone until the end of the day to come in and submit a sample.

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New Rules for Conditions of Bond in Montgomery County

 Posted on April 21, 2017 in Uncategorized

Facing felony criminal charges in Montgomery County has been increasingly difficult for defendants who have to deal with both the underlying charges and onerous conditions of bond.

But things have recently gotten worse.

The Montgomery County Adult Probation Office has decided to implement a new random drug and alcohol test policy. Under this new policy (it’s been around for a few months now), Defendants must call in to the probation department EVERY DAY and enter in a unique pin number. An automated system will then inform them whether or not they have to submit to a urine analysis that day. Because the system is randomized, you could be tested once a week, twice a week, or have no tests for two months. There’s no way to predict the frequency of tests for any one client.

The probation department loves the new policy, which is no surprise asit is easier for them at administer. Because the system is automated and random, busy probation officers no longer have to manage and calendar drug tests.

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Section 12.44(a) and (b) for Dummies

 Posted on January 18, 2017 in Sentencing

For accused persons facing prosecution for certain low-level felony offenses,Texas Penal Code Section 12.44 is like the Holy Grail of plea deals. Clients continuously ask “what is a 12.44(a)” . . . “can I get a 12.44(a)” . . . and “how does 12.44(a) work?” They ask the same questions about Section 12.44(b).

So here’s the basics (and as always, if you have a particular legal question about YOUR CASE, talk to your lawyer . . . this post is for general info and should not be considered legal advice):

Section 12.44 of the Penal Code allows the trial court to either send you to your local county jail to serve time on a State Jail Felony Conviction (that’s Section 12.44(a)), or, with permission from the prosecutor, reduce your State Jail felony case to a misdemeanor conviction and have you serve your time in a county jail facility (that’s Section 12.44(b)).

There are big potential advantages to pleading your State Jail felony offense to a misdemeanor. If you plead in accordance with 12.44(b), the offense cannot be used later for purposes of enhancing another felony charge. You also avoid a felony conviction on your record. Under both 12.44(a) and 12.44(b), you get to serve out your time at a county jail facility and can benefit from whatever the county’s time credit policy is. For example, in Montgomery County, the sheriff often authorizes inmates to receive 2 days’ credit for each day they are incarcerated. So you can get your sentence over with relatively quickly (unlike the day-for-day credit you receive at an actual State Jail facility).

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3 big differences between Probation and Deferred Adjudication

 Posted on August 29, 2016 in Uncategorized

Many people come into my office wanting to know if they can “go on probation” to avoid jail or prison time.

The first thing I tell them is stop talking about pleading guilty – it’s always the State’s burden to prove you did the crime, and sometimes the best option is to try and beat the case, either through pretrial negotiations or jury trial.

But when a plea is in a client’s best interest, I always take the time to explain that there is more than one option to avoid jail or prison. In Texas a judgecan defer a finding of “guilty” and place youon “deferred adjudication,” or you can be found guilty by a judge or jury and be placed on what is called “straight probation.” In this post I try to outline the major differences between these two types of dispositions. As always, your situation is fact-specific. Don’t mistake this general primer as legal advice, and make sure to talk with your attorney before making any decisions related to your case.

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Five Criminal Justice Myths You Should Know

 Posted on July 14, 2016 in Practical Advice

Most people don’t expect to get arrested. When it happens, a range of emotions can hit you, from anger, to disbelief, to pure panic. But after the initial shock wears off, you’ll start to think about the best way to protect yourself. In trying to figure out how to react to your new reality, you probably won’t be relying on direct experience (unless you’re used to getting arrested all the time!). Instead, you’ll rely on what you consider common knowledge of how the criminal justice system works. But be careful, because many of the “truths” about how the system works are in fact nothing but myths. Here’s five “Criminal Justice Myths” that you should stop believing in:

1. If the Officer doesn’t read my Miranda Rights, my case will get dismissed.

“Mirands Warnings” are a list of rights that you’ve heard on television a million times: the right to remain silent, the right to talk to an attorney, and the right to know that anything you say can and will be used against you in Court. I’m sure you have a favorite Miranda scene in a Movie. Mine is from the “Dragnet” remake with Tom Hanks and Dan Aykroyd.

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Texas Grand Jury Reform Does Not Go Far Enough

 Posted on November 02, 2015 in Uncategorized

Governor Greg Abbott recently signed a law which make significant changes to the way a grand jury is selected. The old “pick your pal” method of selecting grand jurors is now history, but the new law doesn’t address other problems with the grand jury process.

How the grand jury selection process used to work:

A grand jury is a group of 12 citizens selected in a particular jurisdiction to decide whether a person should be indicted for a felony offense. Unlike the familiar jury in the courtroom (the “petit jury”), which is empaneled to decide whether a person is guilty or innocent of a crime, the grand jury has to answer a “threshold” question — whether there is probable cause to accuse aperson of a specific crime or crimes. So the grand jury acts as the justice system’s gatekeeper.

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What is the difference between a writ and a direct appeal?

 Posted on October 23, 2015 in Post Conviction

Many potential clients have come to me wanting to “do something” about their conviction or the conviction of a loved one. I’ve found that the post-conviction process can be difficult to understand, so here’s a primer that might help. Let me emphasize that this is just a basic introduction — to find out what you or a family member need to do after an actual conviction you’ll need to seek a consultation with an attorney.

Direct Appeals

  1. Direct appeals are limited to the trial record. That means only words typed by the court reporter or documents filed with the district clerk can be reviewed for potential issues to appeal.
  2. You can only appeal issues that were preserved. So your attorney had to object to something the State did, or file a written motion complaining about an issue. Normally an objection has to be timely — you can’t wait until the next day to complain about an objectionable question asked by the prosecutor. The upshot of “preserving” error is to make the trial court aware of the issue with enough clarity for the Court to make a ruling on it, AND for the Court to then actually make a ruling.

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The Michael Morton Act Highlight Reel

 Posted on October 16, 2015 in Pretrial

Once upon a time in a not-so-distantpast a prosecutor named Ken Anderson decided that he wanted to send a man named Michael Morton to prison for killing his (Mr. Morton’s) wife. The only problem was that Mr. Morton didn’t actually commit the murder.

But Mr. Anderson couldn’t be troubled with such stubborn facts, so he deliberately withheld exculpatory evidence during the trial. Mr. Morton was found guilty and served 25 years in prison. The withheld evidence included a blood-soaked bandana found at the crime scene that belonged to Mark Allan Norwood, the man ultimately convicted of the murder of Mr. Morton’s wife and another woman.

This awful series of events eventually led to the disbarment of Mr. Anderson (who had subsequently beenelected to a district court bench), a finding of contempt (with a sentence of just ten days in jail, which seems a bit soft-handed in light of the 25 years served by Mr. Morton), and an agreed audit of every Williamson County case handled by Mr. Anderson (read about that little-know fact here).

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