Nearly all of my clients ask me at some point if we can use an Article 11.07 writ to get a reduced sentence.
The short answer is no. The writ is used to collaterally attack a prison sentence. It is an “all or nothing” fight where I try to find a cognizable ground for relief that was so prejudicial to my client that the only remedy is a new trial. There’s no procedural way to ask for less time on the sentence my client has already received. Judgments are final unless reversed, full stop.
But that’s not the whole story.
11.07 writ procedures are not immune to the normal leverage and negotiation tactics that you’re used to seeing prior to trial. In fact, a good writ attorney has to be willing to devote just as much energy, if not more, to negotiating effectively with the DA office than she does investigating the case and drafting legal arguments.
In the case of 11.07 writs, however, the only way to create negotiating power is to develop facts favorable to your grounds for relief, such as concessions from trial counsel, legal errors or misstatements of the law that occurred during the trial without objection, and new evidence such as witness affidavits that contradict or call into question key trial testimony.
Remember, the burden of proof shifts when an inmate applies for a post-conviction writ. During trial, the State has to prove its case beyond a reasonable doubt. After conviction, the inmate has to prove his grounds by a preponderance of the evidence. So if you can’t find facts in support of your allegations, you wont’ get far, and you won’t have any leverage with the District Attorney’s Office.
Also keep in mind that writs are not designed for “record only” claims. Mistakes clearly discerned in the reporter’s record should be raised on direct appeal. Failure by a defendant to raise “record only” claims on direct appeal results in waiver of those claims – you can’t bring them up later in your 11.07 writ (big exception: ineffective assistance of counsel claims can be raised in an 11.07 writ even if they are “record only” claims. This is because resolving such claims ultimately requires an exploration of facts outside the record).
Typically, a writ attorney will need to both develop facts material to the grounds for relief and actually file the writ and appropriate exhibits before calling the DA office. If you just tell the DA that you’ve got great facts on your side, they won’t listen — good claims must be backed up with a file-stamped and properly supported writ application.
Once she’s marshaled the evidence and got her pleadings on file, a good writ attorney will then fully involve the prosecutor. The DA office needs to hear her take on the pleadings and understand her commitment to fully litigate the case. Most importantly, the DA needs to know immediately after she files the writ if there is common ground between the parties where a favorable deal can be reached.
But how can opposing parties have “common ground?” Let me explain.
First, from the Applicant’s perspective, even when he has facts on his side, taking a writ up to the Court of Criminal Appeals can be risky. The CCA has famously denied relief even when recommended by the prosecutor and trial court. Also, the typical relief sought by an applicant is a new trial. There are many reasons why he may be nervous about getting a new trial, including exposure to other un-filed crimes or a larger sentence on rehearing.
Second, prosecutors have more than just convictions to protect — such as the reputations of local defense attorneys, law enforcement officers, and other ADA’s in their office. If a writ attorney catches a local “officer of the court” in an egregious legal error or act of malfeasance, the DA may be inclined to reach an agreement rather than contest the case in front of the highest criminal court. When faced with such a predicament, DA’s may be willing to reduce a writ applicant’s sentence. The legal mechanism for accomplishing this is a bit complicated, but is entirely feasible if both parties are of the same mind to get it done.
So . . . is it possible to reduce a sentence by means of a writ application? If you’ve got facts on your side and a bilateral desire to compromise, the answer is yes — kind of.
Call an experienced writ attorney to have your questions answered about a specific case.