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

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

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. Oral argument is VERY RARE these days — most cases are decided on the briefs alone.
  6. 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).

If you intend to appeal an issue after being convicted of a crime or having pled guilty, you have to move fast — otherwise you’ll loose the opportunity.

Post-Conviction Writs of Habeas Corpus (WHC’s)

  1. Generally, there are no deadlines for when to file a WHC — the only rule for a post-conviction writ is that your conviction has to be final (so the general rule is that you can’t file a post-conviction writ while waiting on the results of an appeal or while the trial court retains jurisdiction in the case).
  2. You can file a WHC even if you’ve already unsuccessfully appealed your conviction — the WHC is the legal “last resort” for a convicted person. You can also file a WHC if you can’t direct appeal an issue.
  3. WHC’s are not limited to the record. You can use a WHC to investigate the facts of the underlying conviction, obtain affidavits from the trial attorneys (either the defense attorney or prosecutor or both), or obtain new information about a complaining witness or physical evidence that may not have been developed fully during the trial or prior to the plea.
  4. WHC’s are filed with the court of conviction, not the appellate court. The convicting court has the power to hold a hearing, order affidavits, and even order post-judgment discovery if it feels such measures are warranted. After obtaining information (usually trial attorney affidavits), the court will then issue findings of fact and conclusions of law.
  5. The WHC can be a powerful tool, especially if it is used to uncover legitimate prosecutorial misconduct, ineffective assistance of counsel, or newly discovered evidence (like DNA evidence, victim recantation, etc.).
  6. After the trial court completes its findings and conclusions, the WHC goes straight to the Court of Criminal Appeals, which has the power to either follow the trial court’s recommendations or make it’s own or ask for more information.
  7. Although the WHC can be a great way to right an injustice, they are often used as a “Hail Mary Pass” by inmates as an attempt to get back into the court system. Unfortunately, these meritless WHC’s flood the State system, and judges have inevitably become numb to the claims of countless pro se writs (writs filed by inmates or other convicted persons without the aid of an attorney) because of the sheer volume.
  8. Although a WHC is not limited by the record, it IS limited by the type of claims (called grounds for relief) that can be raised. It’s too technical an issue to delve into in this post, but if you can’t frame your argument in a way that is “cognizable” in an application for writ of habeas corpus, you will loose every time.

As a former appellate prosecutor, I can’t tell you many inmate WHC’s I have responded to, combing through page after page of arguments that I knew would never convince or persuade a trial court or the Court of Criminal Appeals. It is frustrating that convicted persons with legitimate claims of innocence or ineffective assistance of trial counsel can get drowned out by all the other groundless writs that flood the system. However, the right to file a WHC is essential, and I’d never want to take that right away from any person convicted of a crime. It would just be better for the system as a whole if the number of frivolous claims were reduced.

In Texas, there are numerous types of writs, some statutory, some only for felonies, some only for capital murders, some for pre-trial or pre-conviction, some only for those placed on felony probation. The types of writs, the rules that apply, and the process of filing them gets complicated fast. If you are seriously considering filing a writ or want to know more about the process, I’d advise you speak to an attorney.