What is a Writ of Habeas Corpus? Criminal Defense Lawyer Explains.

What is a Writ of Habeas Corpus? This video explains habeas corpus and provides examples of pre-trial and post-conviction writs. Visit https://www.gustitislaw.com for more information about the writ of habeas corpus, the meaning of habeas corpus, and the best criminal defense lawyer in Bryan-College Station, TX.

In this video, criminal defense lawyer Stephen Gustitis answers the question: what is a writ of habeas corpus? He explains habeas corpus in terms of challenging unlawful pre-trial and post-conviction confinement or restraint. Habeas corpus is defined and examples are provided. Steve is a Texas Board Certified Criminal Defense Attorney practicing in Bryan-College Station, Texas. He has more than 28 years of experience in the field of criminal law and criminal defense in Brazos County. His videos cover a range of the best defense tactics and criminal defense strategies, including explaining writs of habeas corpus.

How to Withdraw a Guilty Plea After Sentencing

This video explains a criminal appeal and how to withdraw a guilty or no contest plea using a motion for new trial or writ of habeas corpus. Visit https://www.gustitislaw.com for more information about criminal appeal, how to withdraw a guilty plea after sentencing, and the best criminal defense attorneys in Bryan-College Station, TX.

In this video, defense attorney Stephen Gustitis explains how to withdraw a guilty or no contest plea following sentencing in a criminal case using a motion for new trial or writ of habeas corpus. The video discusses this appeal route in criminal cases and criminal appeal procedure. Steve is a Texas Board Certified Criminal Defense Attorney practicing in Bryan-College Station, Texas. He has more than 28 years of experience in the field of criminal law and criminal defense in Brazos County. His videos cover a range of the best defense tactics and criminal defense strategies, including criminal appeals and withdrawing a guilty or no contest plea.

Failure To Communicate Plea Offers

The criminal defense lawyer's professional responsibility to each client is to timely communicate plea bargain offers made by the prosecutor. When defense attorneys fail to communicate plea offers to clients they commit ineffective assistance of counsel, which can often lead to reversal in a criminal case.

To establish an ineffective assistance of counsel claim the client must, first, prove their lawyer's representation fell below an objective standard of reasonableness. Second, the client must prove the deficient performance resulted in prejudice.

Failure of defense counsel to inform a client of plea offers made by the prosecution is an omission that falls below a standard of professional reasonableness. Furthermore, courts have been unanimous in finding that defense counsel's failure to inform a client of a plea offer constitutes a violation of the person's Sixth Amendment constitutional right to effective assistance of counsel.

But the failure to advise the client of the offer is not quite enough to obtain a reversal. The client must also show they were harmed by the lawyer's unprofessional conduct. In other words, the client must further prove they would have accepted the plea offer had it been communicated. Luckily, the courts have not required defendants prove the trial court would have accepted the plea bargain to establish harm. Only that the defendant missed the opportunity of accepting such a bargain and presenting it to the trial court for consideration.

If you find out your lawyer failed to communicate a plea offer to you, contact new defense counsel immediately. Relief might be available and you need to discuss the matter with an informed and experienced criminal defense lawyer as soon as possible.

Texas Criminal Appeals

Several new appeals came into the office this year.  Fortunately, my clients possessed the presence of mind to call early in the appeal process to preserve as many of their rights as possible. The appellate timetable is unforgiving and must be complied with strictly to preserve one's right to review.  Criminal defense lawyers, and prospective appeal clients alike, must be familiar with the time limits applicable to criminal appeals in Texas. 

A plea bargain, where the trial judge does not exceed the punishment recommendation from the prosecutor, usually waives the defendant's right to appeal except for matters raised by written motion and ruled upon prior to the plea.  Motions to suppress evidence, for instance, are examples of such appealable matters.  Most appeals, however, result when a criminal case is contested and fought-out before the trial judge or jury. The defendant appeals the conviction itself and errors committed during the punishment phase of the trial. 

One's sentencing date is the key point in the appeal process.  Most time limits imposed upon the defendant in a criminal appeal begin to run on the day a person is sentenced. In general, the defendant has 30 calendar days in Texas to file a motion for new trial or to file a notice of appeal which vests jurisdiction in the appellate court. 

A motion for new trial is the best way to develop non-record claims such as ineffective assistance of counsel, disproportionate sentences, or juror misconduct.  Other possible claims raised in a motion for new trial include the denial of counsel, the misdirection of the jury, defense witnesses prevented from appearing in court, or evidence tending to establish a person's innocence being intentionally destroyed or withheld.  Also, any time the verdict is contrary to the law and evidence a claim can be raised in the motion for new trial. 

The notice of appeal must be filed within 30 calendar days of sentencing unless a timely motion for new trial was filed. This extends the deadline for perfecting appeal to 90 days after sentencing. After the appeal is perfected the "reporter's record" (i.e. transcript) must be requested and a "designation for material" (e.g. exhibits) filed with the clerk.  Although the request for the reporter's record and the designation are not subject to the 30 day deadline, it's a good idea to file these papers early to assure the ball is rolling and the appeal is proceeding in a relatively rapid fashion. 

After notice of appeal is filed the defendant may request an appeal bond, provided his sentence did not exceed ten (10) years confinement.  Granting an appeal bond is discretionary with the trial judge.  The judge may also order the defendant comply with bond conditions like regular reporting , a curfew, or other reasonable conditions.

If you have any questions about appealing a criminal case in Bryan|College Station, or other jurisdictions in Texas, please contact the Texas Criminal Appeal Attorney immediately to discuss your case. 

Reversing a Bad Result - Ineffective Assistance of Counsel

Several prospective clients called me recently asking how they can appeal their criminal conviction and sentence resulting from a plea bargain or an open plea to the court (a guilty plea and waiver without a punishment recommendation from the prosecutor). "With great difficulty," I say. A plea bargain accepted by the trial judge waives most of a defendant's rights to appeal. However, there are a few cracks in the armor which potential clients should be aware.

First, a defendant's waiver of rights and plea of guilty must be voluntary. That is, the person's plea must be knowingly and intelligently made. Furthermore, the trial judge must make this finding on the record. However, if a person received ineffective assistance of counsel leading to their decision to plead guilty and waive their rights, a good involuntary plea argument can be fashioned. In that case, the defendant's plea and waiver can be withdrawn and the defendant can start from square one defending the charges against them. There are many ways a criminal defense lawyer might provide ineffective assistance of counsel leading to an involuntary plea. Following are just a couple to consider.

The failure to investigate is a common basis for ineffective assistance of counsel. If the criminal trial lawyer failed to uncover facts about their client's case that, had the facts been known, would have created a "substantial likelihood" the defendant wouldn't have waived his rights but insisted upon a trial, can cause an involuntary plea. The failure to locate an alibi witness is an example of the failure to investigate. The failure to discover a prior conviction, being used to enhance punishment, was void or voidable, is another example.

Another instance of ineffective assistance is when the criminal lawyer provides their client incorrect advice on the law applicable to the case and that erroneous advice leads the client to plead guilty and waive their rights. One example might be where the client is charged with multiple counts of sexual assault upon a child. The trial lawyer tells their client "if you plead guilty and ask the judge to assess punishment the sentences cannot be stacked upon one another, but can only run concurrently." (WRONG!) The client pleads guilty, waives his rights, and the trial judge guts the client with stacked prison sentences. In short, the client's guilty plea was based on the erroneous advice of his lawyer. Had the advice been correct the client would have insisted upon jury trial. That's an involuntary plea.

Another common example of ineffective assistance is when the criminal defense attorney fails to communicate a plea bargain offer made by the prosecutor. Had the plea offer been communicated to the client, they would have accepted it. Although this is not an "involuntary plea" situation, it is yet another way to reverse a bad result for the client based on ineffective assistance of counsel.

Reversing a guilty plea and waiver is tough and technical legal work. Many times, if not most, the attempt is unsuccessful because of the great bias contained within the law toward the finality of convictions. However, a good Texas criminal defense lawyer, experienced in appeals, can sometimes work the miracle a client needs for a second bite at the apple. But critical time limits often apply! Contact an experienced criminal appeal attorney immediately to discuss your case.

Sect's Children Illegally Seized?

The Dallas Morning News is reporting the Third Court of Appeals in Austin, Texas ruled that Texas Child Protective Services had no right to seize more than 400 children living on the West Texas FLDS ranch. (h/t to my friend Ed Spillane for this lead) More to come.

Update: Text of Court of Appeals Opinion here.

Victim Gets His Say - At My Expense

The CrimProf Blog posted here about an interesting case from the U.S. Court of Appeals - Ninth Circuit concerning the rights of a crime victim (W.Patrick Kenna) to say his piece during the sentencing phase of a federal criminal trial. This case was interesting in light of the discussion we had last month here and here about crime victims getting too much power in the criminal justice system.

The amazing thing about the Kenna case was the appeal rights granted to the victim. Apparently, Kenna was not allowed to make a statement concerning the effects of the crime during the sentencing of the defendant. After the federal judge refused to let Kenna speak (the judge had heard the crime victims speak at an earlier hearing), Kenna was accorded an appeal to the Ninth Circuit.

I wonder who spent time writing the brief and who paid for the court reporter's transcript? Who advised the victim of his appeal rights and preserved the error? This is a potentially objectionable use of my taxpayer dollars to give crime victims an attempt at "closure" following a criminal prosecution. I'm note sure I agree with it.

Refusing Court -Appointed Appeals

Last week, criminal defense lawyer, Shawn Matlock, hypothesized here that most defense lawyers refuse to handle appeals because of the poor economic return. Shawn did not say so, but I suspect he meant "court-appointed" appeals. I agree with Shawn's conclusion. However, I disagree with his corollary that "real" criminal defense lawyers should handle their client's appeal with regularity. Shawn asserted:

I think that because so many people "practice" criminal law as a business, they view appeals as a money-losing endeavor. The time put into a good appeal can be extensive, and it can be exhausting. But, in my humble opinion, real lawyers do it.

Shawn argued defense lawyers don't take appeals because they are hard work. I agree they are very hard work. He postulated most defense lawyers don't take appeals because they aren't familiar enough with procedural and substantive law. I further agree lawyers must be well versed in all aspects of law which might bear upon the issues in a criminal appeal.

Nonetheless, many hardworking, smart, experienced, and dedicated defense lawyers don't take court-appointed appeals because they don't pay-off financially. I don't have a problem with that. I handled court-appointed appeals for years and learned an incredible amount of law. I learned how to preserve error. I learned how to establish harm so the appeal lawyer would not get "poured-out" under the harmless error rule. I learned how to write. But eventually the time invested in researching and writing appeals greatly outweighed my economic return. When that happened my other clients suffered.

For example, in Brazos County court-appointed appeal work gets paid on a fixed rate. A typical fee for a non-aggravated felony appeal is $1,750.00. Knowing I spend about 35 hours on a typical appeal, that works out to about $50.00/hour. That is not economically feasible. It does not pay my overhead. It does not fund my employee's IRAs. It does not pay for their medical insurance. It does not adequately pay me for my time.

My fee paying clients have purchased my time. I promised these clients attention and personal service. That is what distinguishes me from the other great lawyers in my community. But if I spend 35 hours on an appeal for which I only make $1,750.00, that makes no sense. My fee paying clients get the short end of that deal. I'd rather eliminate court-appointed appeal work and spend my time in more cost effective ways.

Young defense lawyers starting out should take court-appointed appeals. It increases the depth and breadth of their knowledge and experience. Their hard-earned experience eventually pays-off for all their future clients. I will take an appointed appeal now and then, too. Usually, it is a difficult case that a local judge knows I'll work diligently. I do this as a favor. They've come to depend on me - a great position to be in.

Let me say appeal work on "retainer" is financially rewarding. But I have no problem with defense lawyers who refuse to accept court-appointed criminal appeals. I have no problem with lawyers making a business decision to refuse work which is not financially rewarding.

If Shawn meant to scold lawyers who don't take appeals because they are lazy and don't want to work hard, I have no problem with that criticism either. But "real" lawyers are businessmen and businesswomen. If not, they risk failure at worst, and not reaching their potential at least. Neither a desirable option in my book.

My Twelve Special Jurors

My Twelve Special Jurors gave us a mistrial last night when they were unable to decide the issue of my client's guilt. The jury was hung 6 to 6 after about 3 1/2 hours of deliberation. My client was standing trial for possessing a firearm while being a convicted felon. After the trial the jurors gave us valuable insight into the weakness of the state's case.

This was the second time this case was tried to a jury. In 2002 my client was represented by out-of-town counsel, was convicted, and was sentenced to 13 years in the penitentiary. After a writ of habeas corpus was granted in 2006 on ineffective assistance of counsel, the case was remanded to the trial court and I was appointed to represent the accused.

After remand the state wanted to move the case. Consequently they offered to recommend time-served in exchange for my client's guilty plea. If accepted, my client would need only to check-in, then check-out of the county jail since he had over 4 years of flat time on the books. Remarkably, my client rejected the offer immediately. Many of my colleagues around the courthouse chuckled. "He's crazy," they said.

After trying the case the way it should have been the first time, the weakness of the state's case became clear. This was basically a one witness case with the arresting cop offering his bogus opinion my client was acting "suspiciously" and was trying to hide something after getting out of his car during a routine traffic stop. The video of the stop did not support this conclusion and the jury saw through it.

The problem was an alibi witness the defense called in the first trial. The state called him this week. This witness should never have been within a mile of the courthouse in 2002. There were too many problems with him that the defense could not explain. See Bennett's Chainsaw:

The more things you must contest and the more explanations you must provide in order to mount a defense, the more likely it is that you will be convicted.

Be that as it may, my client is ready to try the case again. It's my job to figure out how to win. After running the play twice we're confident 3 is the charm.

Excluded Testimony Leads to Reversal

Dr. Karen Franklin reported here that an Illinois appeals court overturned a robbery conviction because the trial court did not allow expert testimony regarding the fallibility of eyewitness identification evidence. Mr. Walter Allen was sentenced to prison for a 2001 robbery-shooting. The robbery was committed by two men wearing "hoodies" who entered a dry cleaning business, demanded money, and shot a woman employee in the back. From her hospital bed, the woman identified Allen from a photograph as the shooter. Dr. Franklin stated further:

At Allen's trial, the judge refused to allow an expert witness to testify for the defense about problems with eyewitness identification. The judge said that the testimony of Dr. Steven Penrod, a respected psychology-law professor at the John Jay College of Criminal Justice, was unnecessary and might confuse the jury.

In its opinion in People v. Allen, the appellate court pointed to research establishing that eyewitnesses are often wrong, and that jurors have misconceptions about eyewitness accuracy. It cited prior Illinois rulings stating that expert testimony can dispel myths and correct misconceptions, and that "the science of eyewitness perception has achieved the level of exactness, methodology and reliability of any psychological research."

These cases are grist for the College Station criminal defense lawyer's mill. Earlier this summer we examined some important issues regarding eyewitness misidentification here and here. Traditionally, trial judges are given wide latitude when deciding whether to allow expert psychological testimony. In Texas courts, the foundational cases regarding the admissibility of expert testimony are Daubert v. Merrell Dow Pharmaceuticals and Kelly v. State. These cases say judges can exclude such testimony in some cases, but first they must carefully scrutinize the proffered testimony and determine whether it is relevant. Further, judges must determine whether the expert testimony might be helpful to the jury. In the Allen trial the court said no such careful scrutiny took place.

The aggressive criminal defense lawyer should develop expert testimony to discredit the testimony of eyewitnesses. Even in cases where lawyers are court appointed, motions requesting funds for expert assistance should be an integral part of the lawyer's motions practice. With cases like Mr. Allen's to back us up, even the denial of our request for funds can lead to a reversal.

An Irrational Jury

The 14th Amendment's Due Process clause and Jackson v. Virginia allow the Bryan criminal appeal lawyer to argue a jury was irrational when they rejected a client's defense and convicted him of the offense charged. If the higher court is persuaded by the argument, then the client is acquitted. Essentially a finding of not guilty on appeal. In Texas, appeal lawyers have another arrow in their quiver regarding the jury's rejection of a trial defense. If the higher court believes the conviction was against the great weight and preponderance of the evidence, the court will send the case back for a new trial. Not as good as an acquittal, but certainly a good day in the office for any criminal defense lawyer.

I ponder these legal principles having just completed a brief on appeal to the 10th Supreme Judicial District Court of Appeals in Waco, Texas. My client is hoping for a second chance from what we believe was an irrational decision by the jury to convict him of unlawfully carrying a handgun. The handgun was found underneath a sleeping bag, which was inside a van where he was living. At the time of the alleged offense, in Texas, a person was permitted to carry a handgun on their own premises, or premises under their control. The definition of premises included a recreational vehicle being used as living quarters, a travel trailer, camping trailer, truck camper, motor home, or horse trailer with living quarters.

My client was a good man looking to find his way after being recently divorced from his wife of 7 years. He was having trouble finding regular employment and keeping a roof over his head. Consequently, his father spent $850.00 and bought him an old Ford Econoline van. Dad told his son to live in the van until he got his feet on the ground. For six months my client lived, slept, and ate out of that crusty old vehicle. He built shelves inside to store his worldly possessions, he rigged an old car battery for power to run a television set, he kept a couple ice chests in the back for storing food. His bed was an old sleeping bag and pillow. The van was also full of dirty clothes and smelled just like you'd expect.

The officers who testified at trial said it looked like my client was living in the van. My client's father testified he was living in the van. My client testified the van was his home containing all his worldly possessions. Even the local librarians who knew him said they thought he was living in the van. The prosecutor fought me tooth-and-nail to keep this defense out of the jury instructions. However, the judge thought better of it and granted the request.

Needless to say the jury rejected our argument. Now we hope the Court of Appeals will recognized either the irrational jury decision, or that the great weight and preponderance of evidence favored an acquittal. An appeals court is a tough beast to tame, but we'll continue to maintain hope on this one.

Habeas Corpus in Action

For those interested in the Cathy Lynn Henderson story I commented upon in "Staying on the Cutting Edge," Ms. Henderson was granted a stay of execution by the Texas Court of Criminal Appeals based upon the work of her habeas corpus lawyers. The Court opinion is available here. Despite your views on the death penalty the Henderson case is a perfect example of the writ of habeas corpus in action.

If you recall, the habeas petition asserted that new data interpreting the victim's skull fracture could better support Henderson's claim the death was an accident. Dr. Roberto Bayardo was the Travis County Medical examiner who originally testified against Henderson. Bayardo claimed [the victim's] injuries were inconsistent with an accidental fall but recently, Bayardo reviewed the new scientific data and concluded he "cannot determine with a reasonable degree of medical certainty whether [the victim's] injuries resulted from an intentional act, or an accidental fall."

Writ of Habeas Corpus

A short time ago, a young man contacted my office who was facing the threat of deportation because he was a non-United States citizen and had been twice convicted of possessing less than 30 grams of marijuana. The second conviction was the problem and we needed to find a way to persuade the trial court to reverse and dismiss this case. The the answer to this young man's problem was the writ of habeas corpus. We filed a writ claiming the young man's original plea was involuntary because the court had failed to advise him of the immigration consequences of his plea.

My May 31st post, "Staying on the Cutting Edge" also concerned the writ of habeas corpus. There defense lawyers were arguing Ms. Henderson's death sentence should be reconsidered because of newly developed forensic evidence. The vehicle through which the defense was making the claim was through habeas corpus.

Often a family member of a loved-one convicted of a crime has contacted my College Station criminal defense firm to inquire about legal remedies available to help the family member get out from under the burden of the conviction. Again, the answer is often the writ of habeas corpus. After a person is convicted, punishment assessed, and the conviction becomes "final," often the only legal avenue to pursue is the writ of habeas corpus. Habeas corpus, or collateral appeal, is a vehicle through which a person can attack the validity of their criminal conviction.

Over the years the criminal courts have limited habeas issues to areas involving fundamental miscarriages of justice, or the denial of certain constitutional rights. Under the United States Constitution and the Texas Constitution, a criminal defendant is entitled to certain specific rights; for example, the right to counsel, the right to compel the attendance of witnesses, the right against double jeopardy or ex post facto laws, the right to be free from cruel and unusual punishments, and the right to have a fair and impartial jury trial while being accorded procedural and substantive due process.

However, even these foundational constitutional claims may be denied on habeas corpus if it's shown at trial, or on direct appeal, defense counsel could have presented those issues but failed to do so. (called procedural default) Consequently, claims of "ineffective assistance of counsel" are often the key issue involved for the protection of a person's constitutional rights on habeas corpus.

A Texas criminal appeal lawyer familiar with appeals and habeas corpus can often give their clients an invaluable and unique perspective on their criminal case, or even their final convictions.