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Sometimes my clients get sick while serving their Texas felony prison sentences. Sometimes they are already sick and their condition worsens. Obviously, if we are fighting to get a client released to parole, his health can be an important factor for the Board to consider. Below I try to set out common issues that arise when advocating for a sick or physically compromised client.

TDCJ Medically Recommended Intensive Supervision

If a client is terminally ill, he may be eligible for special review and release to parole under TDCJ’s “MRIS” program (Medically Recommended Intensive Supervision). The requirements are strict. As a threshold issue, you have to be terminally ill, over the age of 65, mentally ill, developmentally disabled, require long term intensive medical care, have an organic brain syndrome, or be in a persistent vegetative state.  Additionally, only inmates convicted of non-violent and non-sexually assaultive offenses can normally qualify (except that if an inmate is in a vegetative state he may be released under MRIS even if he was convicted of a sexual assault offense).

If you’re looking to hire a lawyer to file an 11.07 writ of habeas corpus for an incarcerated person in Texas, there’s a few things you need to understand about writ investigations.

First, keep in mind that the whole point of an 11.07 writ is to find things that did not make into the record during the trial or plea proceedings. If your loved one had a jury trial, the events recorded in the trial transcript cannot be a basis for relief by themselves. This is because “record based” claims must be raised on direct appeal  (ineffective assistance of counsel claims can be raised in a writ. Technically these aren’t “record based” claims because to succeed you need new evidence from the trial attorneys themselves in the form of an explanation of their trial strategy).

Attorneys attempting to develop evidence outside the record have 3 main sources of information:

Criminal defendants quickly discover that the criminal justice process in Texas is nothing like the movies. They realize that when they step into court they’re just another face in a crowd of other defendants. They feel like the prosecutor sees them as an offense report, not a person, and that the judge’s primary interest seems to be just getting the case finished.

This feeling isn’t entirely accurate, but that doesn’t make the experience any less disconcerting.

One of the consequences of the experience of a chaotic, impersonal, and crowded court room is that a guilty plea can feel rushed — what if you realize it was a mistake and that you’d rather fight the charges?

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?

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