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).

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 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?

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.

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