Overturning Your State Court Conviction
A jury has found you guilty, and you are unhappy with the verdict. Or two years ago, you accepted a plea bargain for a conviction that cannot be expunged from your record, and now you cannot find a job.
In Texas, there are three ways to challenge a sentence: 1) The Direct Appeal 2) An Application for a Writ of Habeas Corpus 3) A Pardon
Direct Appeal
A direct appeal is when you ask the Court of Appeals to overturn your sentence because of a legal error that your judge made during your trial.
For example, if the trial judge excluded certain evidence that might have benefited you, or admitted certain evidence that harmed you, that ruling may be the basis for overturning your conviction.
Say that you are prosecuted for assault. You wish to offer a witness that will testify that you are a peaceful person. The judge refuses to let your witness testify. Or, say the state calls a witness that testifies that you are a violent person. Both examples might form the basis for an appeal that can overturn your conviction.
Or, say that the judge allowed a state’s witness to relate hearsay on the witness stand. Or, during jury selection, the judge seated a person onto the jury that your lawyer objected to. Those objections might constitute legal error and could be the basis for overturning your conviction.
The most important type of error is constitutional error. For example, the Fourth Amendment of the United States Constitution says that (with exceptions) the police cannot seize evidence from you without a warrant. The police seize drugs from you without a warrant (and one of the exceptions to the warrant rule does not apply). You are convicted for possession of a controlled substance. A basis for your appeal would be the violation of the Fourth Amendment.
Recently, a good source of error has been the jury charge—the document that the judge prepares for the jury instructing them how to decide your guilt or innocence and your sentence. For example, if the judge refuses your request to include a lesser included offense in the jury charge, that could be the basis for an appeal.
To appeal an error made during trial, the error must be “preserved.” Preserving error during trial basically means that your trial lawyer objected to the judge’s decision in a timely manner. The objection must also be recorded by the court reporter. A direct appeal usually only consists of objections found in the trial record.
One way to expand the record for the appeal is to file a motion for new trial. For example, say that you are convicted of aggravated assault. You believe that your lawyer represented you poorly by not finding witnesses that could have testified that you acted in self-defense. Since you have a constitutional right to effective assistance of counsel, you may ask the judge for a new trial based on your lawyer’s deficient performance. Since that information would not be in the trial record, you would need a hearing so that you can show your lawyer failed to call those witnesses.
Or, say that two weeks after trial, you find out the prosecutor withheld evidence that shows you were innocent. Withholding evidence that shows a defendant is innocent is a constitutional violation. You will need a hearing to show that the prosecutor withheld the evidence.
If the judge denies the motion for new trial, the transcript made during that hearing then becomes part of the record that the Court of Appeals can consider.
There are fourteen courts of appeals in Texas. An appeal from a trial court will go to one of them depending on your region. Because of its large size, Houston has two courts of appeals.
If you lose at the Court of Appeals, you may appeal to the highest court in the state—the Court of Criminal Appeals. Such an appeal is known as a petition for discretionary review.
Finally, if you lose at the Court of Criminal Appeals and your case contains a federal question, you may appeal the United States Supreme Court.
There are strict deadlines for the direct appeal. You must give formal notice to the trial court of your intent to appeal within thirty days of receiving your sentence. A motion for new trial expands the deadline to ninety days. A motion for new trial must be filed within thirty days of the sentence.
While your appeal is pending, you are eligible for an appeal bond if your sentence was less than ten years and not for an aggravated felony.
Please contact me directly at 713.884.5598 for more information about filing a direct appeal.
Writ of Habeas Corpus
Another way to overturn a state conviction is an application for a writ of habeas corpus. An application for a writ of habeas corpus asks a court to overturn your conviction because of a state or federal constitutional violation.
Unlike a direct appeal, there is no deadline for filing a writ in state court. You do not need to give notice within thirty days of your sentence. Furthermore, unlike a direct appeal, the court can consider matters outside of what is in the court reporter’s record.
The writ of habeas corpus is a right guaranteed by the United States Constitution and the Texas Constitution. Originally, habeas corpus was a remedy to prevent the government from holding a citizen illegally. So, if the government imprisoned someone for no reason, a lawyer could apply for a writ of habeas corpus complaining of the constitutional violation (lack of trial) and being confined in jail or prison.
A constitutional violation and “restraint” are still the two basic requirements for a writ of habeas corpus. However, the restraint requirement has expanded over time to include effects of a conviction other than imprisonment. For example, probation is now considered a form of restraint. Furthermore, a final conviction can meet the restraint requirement because it can be used to increase the punishment for a subsequent offense.
A typical habeas corpus claim is ineffective assistance of counsel. The United States Constitution requires that a defendant have competent legal representation. If your lawyer failed to advise you properly about the consequences of your plea bargain or pled you out without investigating the facts of your case, that may be a constitutional violation and the basis for a writ of habeas corpus.
Another habeas corpus claim is an involuntary plea. For example, if you agree to take credit for time served and your lawyer tells you that you will not have a final conviction on your record, that might be a constitutional violation. Or if your lawyer tells you to plead guilty to the judge and says the judge will give you probation, but the judge gives you a prison sentence, that might be a constitutional violation.
A writ of habeas corpus is typically the vehicle to litigate newly discovered evidence as well.
If your state writ of habeas of corpus fails, you can file a writ in federal district court. However, while a state writ does not have a deadline, a federal writ must be filed within one year of your conviction being final.
It is important to move quickly when considering a writ of habeas corpus. While a state writ can be filed at any time, if you wait too long after your conviction is final, a court will often dismiss your application under the doctrine known as laches (a legal doctrine which basically means you should have complained about the violation earlier). Furthermore, waiting too long will prohibit you from filing a writ in federal court. Often, federal courts are more sympathetic to habeas corpus claims than state courts.
Please contact me directly at 713.884.5598 for more information about filing a writ of habeas corpus.
Pardon
A pardon is when you ask the Governor of Texas to nullify your conviction.
Unlike a direct appeal or habeas corpus, a pardon has nothing to do with the courts. It is handled by the executive branch of the state government. Furthermore, unlike an appeal or a writ, the older your conviction is, the better your chance at a pardon.
A pardon application consists of letters of recommendation, court records, and written essays. The application requires three letters of recommendation; the writer must specifically address the letter to the Board of Pardons and Paroles.
The essays involve writing about the details of the offense, why you need a pardon (as in you cannot find employment with a conviction), and why you deserve a pardon. You may deserve a pardon because you were innocent of the crime or because your accomplishments since the conviction outweigh the harm of the offense.
The pardon application is forwarded to the Board of Pardons and Paroles. If they approve it, they forward it to the Governor for his consideration.
There are two large exceptions to pardon eligibility: you are not eligible to receive a pardon if you were put on deferred adjudication and completed the probation term. If you received straight probation and your conviction was set-aside after early termination, you are not eligible to apply for a pardon.
A pardon restores voting rights and may restore the right to bear arms. If you receive a pardon, you are also eligible to expunge the arrest record.
The Governor also has the power to commute a sentence (shorten the prison term). The Governor may also reduce a death sentence to life in prison.
Please contact me directly at 713.884.5598 for more information about preparing a pardon application.
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