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A conviction doesn’t have to be the end of the road for your loved one. My job is to help clients navigate the post-conviction process. From direct appeals, to ineffective assistance of counsel claims, to formulating the most effective parole release plan, I’ve got you covered. Please follow the links below to learn more about the post conviction process. Search and read my blog posts to find answers to more specific questions. Or give my office a call to talk to me directly.

Texas trial courts are seeing an upward trend in pretrial writ of habeas corpus applications challenging felony indictments. This trend seems “organic,” i.e., there’s been no specific change in the law that attorneys are reacting to. It is unclear why the criminal defense legal community seems to be gravitating towards this strategy. I suspect that recent successful facial challenges to the constitutionality of a few Texas Penal Code provisions has put pretrial writs on the defense bar’s radar. But I don’t think anyone knows for sure.

In light of recent a recent Court of Criminal Appeals (“CCA”)decision — Ex parte Edwards, it’s helpful to for defense attorneys that do not regularly file writs to be mindful of what type of grounds are “cognizable” in a pretrial writ, i.e. what kind of grounds can be properly raised. This is because in Edwards the CCA appears to have rolled back what most lawyers considered a “safe” pretrial writ claim — arguing that the State indicated a defendant outside the statute of limitations.

In Edwards, the CCA held that you can only challenge the statute of limitations in a pretrial writ under very limited circumstances. The CCA suggested the better way to argue limitations is with a motion to dismiss.

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.

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:

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

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.

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