Post Conviction

“Actually Not Guilty” – For those who thought they had drugs but really didn’t

August 11, 2019 | By Pullan & Young

If you’re accused of possessing a controlled substance, you shouldn’t take a deal until the lab report comes back. That’s the advice dispensed recently in a concurring opinion in the Court of Criminal Appeals per curium case Ex parte Saucedo, WR-87,190-02.

Easy for a high court judge to say. But sometimes reality forces your hand. You can’t stomach multiple court dates. You’re accused of possessing marijuana and no one will pay for a lab report. Or you know you’re guilty and just want to get the case over with. So you take a deal.

But what if the lab report eventually comes back and proves everyone wrong (including you)? If the report shows the stuff in your possession wasn’t a controlled substance, or even if the report just shows it was a different controlled substance that what the indictment or information alleged, you can probably get your plea overturned.

Should your Texas marijuana case have been dismissed?

July 13, 2019 | By Pullan & Young

As many of you know, the Texas Legislature recently passed a law legalizing hemp. You may not be aware that the new hemp law has led to the dismissal of hundreds of weed cases, and that your recent conviction may be legally suspect.

If you have been convicted of or entered a plea to a possession of marijuana case since June 10, 2019, you may have a legal basis to get your conviction or disposition overturned. You should consult a post-conviction attorney for more information.

The New Law

Beware of schemes targeting registered sex offenders

July 12, 2019 | By Pullan & Young

Life is hard enough for a registered sex offender in the State of Texas. Jobs are difficult to come by. Friends and family often abandon them. There is constant judgment, ridicule, and the threat of harm by strangers.

Now, there’s a cadre of conmen out there tying to shake registered sex offenders down for money.

The scheme works like this: you get a call on your cell phone, often showing a legitimate number on the caller ID, such as a court house or county administration building. The person on the other end of the line says he’s a United States Marshall and that he’s got a warrant out for your arrest. He then claims that he has recorded conversations of you soliciting an underage person for sex. Knowing you are already registered as a sex offender, the person states he can recall the warrant and avoid release of the embarrassing material if you pay a fee. In one instance I am aware of, the con artist said he needed $850 to recall the warrant.

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

October 23, 2015 | By Pullan & Young

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

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.
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.
Deadlines are an important part of the direct appeal. A notice of appeal must be filed quickly after the conviction. This secures jurisdiction for the appellate court. Once the appellate court has jurisdiction, it begins issuing deadline orders — first for the clerk’s and reporter’s records, then for briefs. These deadlines usually come in 30-day increments.
After the appellate court receives the briefs from both the Defendant (now the Appellant) and the State, it will pick a submission date to consider the record and arguments.
Oral argument is VERY RARE these days — most cases are decided on the briefs alone.
The entire process takes months, usually between four to six, for a final ruling from the appellate court. The appellate court’s decision can itself be appealed to the Court of Criminal Appeals, but the higher court does not have to grant review of the lower court’s decision.

So, with these basic aspects in mind, it is easy to see that if you have a trial or litigate an issue in front of the court (like a motion to suppress evidence based on an illegal stop), then a direct appeal would make sense. You can appeal something even after pleading guilty, as long as the issue you want to appeal was fully litigated or presented prior to the guilty plea and the trial court certifies your right to appeal (you’ll know this because when filing out your plea paperwork there will be a specific document detailing your right to appeal).