Post Convictions Writs

Petition for Writ of Habeas Corpus to Set Aside a Final Felony Conviction under Code of Criminal Procedure section 11.07

If you lose the direct appeal and the PDR, or you waived your right to direct appeal, you can challenge your conviction under section 11.07 of the Texas Code of Criminal Procedure. Many criminal defendants elect to draft and file their own section 11.07 writs, but I highly caution against that. Defendants have only one chance to file a writ in most cases, and there are very few circumstances where a court will consider a second or subsequent writ. There is no set deadline in Texas for filing a writ, so it would be better to wait a year and save the money for an experienced criminal appeals attorney. Some attorneys are willing to set up a payment plan.

A writ is quite different than a direct appeal, the biggest difference being that you can bring in new evidence that was not presented at trial. In some instances, your attorney may elect to do an investigation with a private investigator and try to gather new evidence for your case. This will be an added cost paid directly to the private investigator, but most private investigator’s try to work within your budget. And an experienced appeals attorney will have a strong network of private investigators to choose from.

Further, the arguments you bring in a writ are quite different than a direct appeal. Not only are you not limited to what evidence was presented at trial, you are not allowed to make arguments that you could have made in a direct appeal. Errors at trial, factual and legal sufficiency challenges and evidentiary challenges are examples of issues you are not permitted to bring in a writ. What is typical are challenges based on ineffective assistance of counsel and involuntary plea. To show ineffective assistance of counsel, your attorney will need to prove that but for your trial lawyer’s incompetency, the outcome of the case would have been different. Ineffective assistance of counsel can also be used to void plea agreements in certain circumstances. It is important to consult with an experienced criminal appeals attorney on your case to determine whether the facts could warrant reversal under an 11.07. Courts have upheld convictions in many cases where trial attorneys have been incompetent, but the defendant failed to prove the outcome of their trial would have been different.

It is important to note that even though there is no set deadline for a writ, there is something called a Doctrine of Laches which the court can use to dismiss the writ for waiting too long to file after the conviction. What Doctrine of Laches means is that the defendant waited so long that it is highly prejudicial to the State if they were to have to retry the case now. For instance, evidence is destroyed, witnesses have died or moved away, and witnesses memories have faded. There are ways around the Doctrine of Laches such as when witness comes forward with new information that was not available earlier. This is why it is so important to hire an experienced criminal appeals attorney to file your writ.

There is a benefit to filing the writ early because if you lose the state writ, you can file a federal writ, but the deadline for a federal writ is more strict.

Federal Writ Under 28 U.S.C. §2254

If you lose your state writ, you may have the option to file a federal writ under 28 U.S.C. §2254. The deadline per the statute is one-year, but calculation of the deadline is complicated and often lasts longer than one-year. It is important to consult with an experienced criminal appeals attorney as soon as possible to properly calculate this deadline. There is also something called equitable tolling which could excuse a missed deadline, but the exceptions are few, and is not often granted. An experienced appeals attorney could advise you on whether you would qualify for this.