Articles Posted in writs of habeas corpus

After a conviction is final, the only effective way to hold the prosecution accountable for failing to disclose exculpatory evidence is through filing an 11.07 writ application in accordance with the Texas Code of Criminal Procedure.

But public disclosure laws make the investigation of prosecutorial misconduct difficult. Specifically, the Texas public disclosure statute allows District Attorney Offices to withhold prosecutor “work product” from defense attorneys who make written request to review the State’s file.

The State relies on this “work product exception” to remove all prosecutor notes, internal memoranda, emails from law enforcement, trial preparation documents, and court notes (to name just a few commonly-withheld items) from a defense attorney’s review. The result is that defense attorneys can’t see the very documents most likely to contain “Brady” material (i.e. potentially exculpatory evidence), or documents that at least reveal misbehavior on the part of law enforcement.

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.

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.

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

Generally  speaking, an inmate or person convicted of a crime is not allowed to raise grounds for relief in an application for writ of habeas corpus based entirely on events that occurred during trial. Such grounds are described as “record-based” because they are a part of the reporter’s record. The Court of Criminal Appeals established the prohibition against raising such claims in the context of Article 11.07 writ jurisprudence (i.e. writs filed post-conviction under Article 1107 of the Code of Criminal Procedure), but the general prohibition against “record-based” claims could also be applied to writs filed to challenge misdemeanor convictions and other types of statutory and non-statutory writs.

The rationale behind the prohibition is simple. If the claim is record-based, then it could have been raised on direct appeal. If the defendant did raise the issue on appeal, then the Court of Criminal Appeals considers it resolved – you don’t get “another bite at the apple.” Conversely, if you didn’t raise that issue on appeal, then you have effectively waived the issue – you had your chance to bite the apple, but didn’t, so . . . no apple for you. I promise no more apple metaphors.

In any event, that’s the rule. But as always, an inmate looking to file an 11.07 application should be mindful of a few exceptions.

New clients often ask me when they can apply for a writ of habeas corpus under Article 11.07. Unless they’ve been prison for awhile, my normal answer is, “Not yet.”

Article 11.07 refers to a section of the Texas Code of Criminal Procedure that establishes the procedures for filing an application for writ of habeas corpus after being convicted of a felony offense. This may sound straight forward, but there are some procedural rules that limit when such an application can be filed.

First, your conviction has to be final. Or to use a technical phrase, “mandate” has to have issued. Mandate only issues when you have exhausted the direct appeals process. It’s probably easier to explain this with an example.