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Writs of Habeas Corpus – Or How to Appeal When You Can’t Appeal

Many people don’t realize that a conviction doesn’t have to be the end of a criminal case. In fact, there are multiple ways to attack a conviction. An appeal is the most direct path to overturning a conviction.   If something goes wrong during a trial or a plea proceeding and the outcome was not right for a legal reason, the case can be appealed. However, there is a limitation with this path: only things “on the record” will be considered by the court of appeals. This means that anything that was not transcribed by the court reporter or included in the court’s file during the initial case proceedings cannot be used in the appeal.

But sometimes, information comes to light after the initial case proceedings are over. New evidence is discovered or old evidence is proven to be incorrect. Proof of prosecutorial misconduct (incorrect or unlawful handling from the prosecutors) is secured. How do you attack a conviction with information that is not, could not, be on the record?

 That’s where a writ of habeas corpus comes in.

This proceeding has been statutorily put into place by the Texas Legislature to allow justice to be found despite evidence not being in the record. Most of the wrongful convictions you’ve heard about in the news were overturned based on a writ of habeas corpus.

What is a writ of habeas corpus?

It’s a Latin term that literally translates to “you shall have the body.” It’s an order directing someone who has the “body” of a defendant to show cause as to why that defendant is being held. Oftentimes, it’s metaphorical rather than literal; a defendant that is on probation is being “held” because they are not free to do whatever they please.

Practically speaking, it allows an attorney to attempt to overturn a conviction (or a defendant in pro se cases, since attorneys are usually not provided to indigent defendants for writs) by bringing evidence before the court that is not already in the record. New evidence can be presented in multiple ways, from affidavits and depositions, to having full-fledged hearings before the judge that look a little like a trial. It’s completely up to the judge as to whether to allow a hearing, but in most significant cases where there’s a lot of new evidence to present, judges will allow the hearing to go forward.

Sounds easy, right? Just waltz up before a judge and slap down a new piece of evidence.

But it isn’t that simple. There is a lot of hard work that must be overcome in order to get before the judge.  There are some rules for writs that make it difficult. First, the courts will generally only consider a first application for writ. Subsequent writs, unless they fall under a small minority of exceptions, will be denied outright. Second, a writ is usually a solution of last resort, taken only after all appeal remedies have been exhausted. If an issue could have been raised in an appeal, it will not be considered in a writ, because the courts require all issues that could have been raised in appeal to be raised in an appeal. Because it is the very last solution, Writs are some of the hardest cases to actually win.

The most common issues that can be raised in a writ involve issues that are impossible to see in a record of proceedings. These include prosecutorial misconduct (where a prosecutor has behaved incorrectly), ineffective assistance of counsel (where a defense attorney has behaved incorrectly), changing science (where the science of the past has behaved incorrectly), or new evidence that would have been impossible to discover at the time of trial or plea (where evidence has behaved as evidence generally does; elusively).

A writ of habeas corpus proceeding is held by the original judge. That judge then makes findings of facts and conclusions of law. Depending on what code provision the writ is filed under, the judge’s findings will either become final or they will be sent to the Court of Criminal Appeals, who can accept that judge’s findings, reject those findings and enter different findings based on their review of the record, or send the case back to the original judge with a directive, usually to hold further proceedings. There may be further proceedings possible after the writ is decided, but those are beyond the scope of this article.

For now, let us leave on this note: when all is said and done, it is not necessarily over. A writ of habeas corpus might achieve the justice that was initially denied.


The Law Office of Krause & Dailey handles post-conviction issues, including appeals and writs of habeas corpus. If you or a loved one finds yourself wondering if a writ may help your case, please contact us for a free consultation.

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