16.1 Stauffacher2

A GUI DE T O ARTI CL E 11.
07
WRI TS OF HABE AS CORPUS AND OT HER ST AT E WRI TS

MI C HAE L F. ST AUF F AC HER
Supervising Attorney, Post-Conviction Writs
Texas Court of Criminal Appeals
Austin, Texas
(512) 463-1600
michael.stauffacher@cca.courts.state.tx.us

State Bar of Texas
36
th

ANNUAL
ADVANCED CRI MI NAL L AW C OURSE
July 26-29, 2010
San Antonio

CHAPT ER 16.1

MICHAEL STAUFFACHER
Supervising Attorney, Post-Conviction Writs Section, Texas Court of Criminal Appeals
Mr. Michael Stauffacher has been the Supervising Attorney of the Post-Conviction Writs Section
for the Texas Court of Criminal Appeals since February, 2005. Prior to that time Mr. Stauffacher
served as an attorney with the Court for nine years, and he was a staff attorney with the Texas
Department of Criminal Justices State Counsel for Offenders Office for three years. He has lectured
on the topic of Art. 11.07 writs of habeas corpus for the State Bars Advanced Criminal Law Course
and Law Related Education Program, the Texas Criminal Defense Lawyers Associations Rusty
Duncan Advanced Criminal Law Course, the Texas Association of Appellate Court Attorneys, the
Texas District Court Alliance, the Harris County Judicial Education Conference, the Texas Center
for the Judiciary, and St. Marys Law School. He is a member of the Austin Bar Association, the
Texas Association of Appellate Court Attorneys, and the College of the State Bar of Texas. Mr.
Stauffacher holds a bachelor of science in management degree from Tulane University and a doctor
of jurisprudence degree from the University of Houston. He is licensed by the Supreme Court of the
United States and the United States District Court for the Southern District of Texas. Mr. Stauffacher
is an honorably discharged veteran of the U.S. Army Reserve and a proud member of the Honorable
Order of Kentucky Colonels.

A Guide To Article 11.07 Writs Of Habeas
Corpus And Other State Writs Chapter 16.1

i
T ABL E OF CONT ENTS
I. INTRODUCTION .................................................................................................................................................. 1
II. STAFF AT THE COURT ....................................................................................................................................... 1
III. NUMBERS ............................................................................................................................................................. 1
IV. 11.07 THE STATUTE ......................................................................................................................................... 1
V. 11.07 - MAIN ISSUES HANDLED ....................................................................................................................... 2
A. Applicant`s burden oI prooI ............................................................................................................................ 2
B. 'No Way Issues ............................................................................................................................................. 3
C. Ineffective Assistance of Counsel ................................................................................................................... 6
D. Involuntary Pleas ........................................................................................................................................... 11
E. Brady Violations and Prosecutorial Misconduct ........................................................................................... 11
F. (Some) Jury Charge Error ............................................................................................................................. 12
G. Actual Innocence Based on Newly Discovered Evidence ............................................................................. 12
H. Some Other Constitutional Claims Which May Be Raised ........................................................................... 13
I. Post-Conviction Time Credit ......................................................................................................................... 13
J. Pre-Sentence Jail Time Credit ....................................................................................................................... 15
K. Parole Matters ................................................................................................................................................ 16
L. Forfeiture Provisions ..................................................................................................................................... 18
VI. ORIGINAL HABEAS APPLICATIONS ............................................................................................................. 19
VII. ORIGINAL MANDAMUS APPLICATIONS ..................................................................................................... 19
VIII. ORIGINAL PROHIBITION APPLICATIONS ................................................................................................... 20
IX. ORIGINAL PETITIONS FOR WRITS OF CERTIORARI ................................................................................. 20
X. ORIGINAL PROCEDENDO APPLICATIONS .................................................................................................. 20
XI. MOTIONS ............................................................................................................................................................ 20
XII. 2009-2010 PUBLISHED CASES OF INTEREST FROM THE COURT OF CRIMINAL APPEALS. .............. 21
XIII. PENDING 11.07 ISSUES AT THE COURT OF CRIMINAL APPEALS. ........................................................ 24
XIV. THE IMPORTANCE OF ATTORNEYS IN THE HABEAS PROCESS. .......................................................... 24
XV. CONCLUSION ..................................................................................................................................................... 25


1
A GUI DE T O ART. 11.07 WRI TS OF
HABE AS CORPUS AND OT HER
ST A T E WRI TS

I. INTRODUCTION
This short paper is designed to provide attendees
with information regarding habeas corpus applications
filed at the Court of Criminal Appeals (the Court)
pursuant to Article 11.07 of the Texas Code of
Criminal Procedure. The paper also briefly covers
some of the other extraordinary writs which are
commonly filed at the Court. Though I realize that for
most attorneys this is a small part of their overall
practice, I hope the following information provides
some useful background and helpful guidance to assist
in the drafting of successful Article 11.07 habeas
applications filed in counties throughout our State, and
original habeas applications, mandamus applications,
prohibition applications, and certiorari petitions
submitted to our State`s highest criminal court.

II. STAFF AT THE COURT
The staff at the Court is divided into three
sections:

A. Petitions for Discretionary Review;
B. Capital Appeals and Death Penalty Habeas;
C. Post-Conviction Writs (Non-death penalty)

While the staff in the post-conviction writs section
works mainly on habeas applications filed pursuant to
art. 11.07, we also have a significant docket consisting
of original writs of habeas corpus, mandamus, and
other writs under common law. The most significant of
these other matters is our mandamus docket. When
fully staffed, the section consists of seven lawyers
including former prosecutors, defense lawyers, and
appellate court staff attorneys. The current staff in the
writ section has over seventy-two years of combined
legal experience in the area of criminal law.

III. NUMBERS
Post-conviction writs comprise the most
significant amount of cases ruled on by the Court.
1

1
The caseload of the Court of Criminal Appeals consists
primarily of mandatory matters. These include review of
applications for post-conviction habeas corpus relief in
felony cases, original proceedings, and direct appeals.
Mandatory matters filed at the Court have increased over the
past decade as a percentage oI the Court`s overall caseload.
They comprised approximately 71 percent of all cases added
to the docket in 1996, and 78 percent in 2005. In 2005,
habeas corpus applications accounted for 88 percent of the
mandatory caseload at the Court.
Here are some representative numbers from Fiscal
Year 2009:

A. 11.07, New Filings - 4,423 applications;
B. 11.07, Disposed - 4,559 applications;
C. 11.07, Back from Remand - 368 applications;
D. Cert. Petitions, New Filings - 8 applications;
E. Original Habeas, New Filings - 47
applications;
F. Original Habeas, Back from Remand - 1
application;
G. Mandamus, New Filings - 659 applications;
H. Mandamus, Back from Remand - 114
applications;
I. Prohibition, New Filings - 3 applications;
J. Prohibition, Back from Remand - 2
applications

As you can see, there is a lot of paper! In FY 2009, the
Judges, staff, and clerks at the Court handled thousands
of art. 11.07 and non-capital original applications.

IV. 11.07 THE STATUTE
Habeas corpus petitions in non-capital felony
cases fall under Chapter 11 of the Texas Code of
Criminal Procedure. Article 11.01 defines the writ as
follows:

The writ of habeas corpus is the remedy to be
used when any person is restrained in his
liberty. It is an order issued by a court or
judge of competent jurisdiction, directed to
anyone having a person in his custody, or
under his restraint, commanding him to
produce such a person, at a time and place
named in the writ, and show why he is held
in custody or under restraint.

There are several different kinds of habeas writs
provided for in Chapter 11.

- Article 11.071 applications. This section
pertains to final felony convictions which
resulted in a death sentence.
pertains to felony or misdemeanor cases in
which an applicant seeks relief from a
judgment ordering community supervision.
pertains to applicants who are confined, after
indictment, but before trial, on a felony
charge.
pertains to applicants who are confined on
misdemeanor charges.


2
And the article which is the main subject of this paper:

pertains to applicants who seek relief from a
felony judgment imposing a penalty other
than death. For practitioners, the most
important provisions to remember when
dealing with this section are:

Where the application is filed. Section 3(b)
of art. 11.07 states that an application must
be filed with the clerk of the court in which
the conviction being challenged was
obtained, and that the clerk shall assign the
application to that court.

Time F rames and Duties. After the writ has
been filed, the clerk is required to forward a
copy of the application by certified mail
return receipt requested, or by personal
service to the prosecutor, who shall answer
the application not later than the 15
th
day
after the date of the copy of the application is
received. Matters alleged in the application,
but not admitted by the State, are deemed
denied.

Within 20 days of the expiration of the time in which
the State is allowed to answer, it is the duty of the
convicting court to decide whether there are
controverted, previously unresolved facts material to
the legality oI the applicant`s conIinement. II the court
decides that no such issues exist, then the clerk is
required to immediately forward the application to the
Court of Criminal Appeals. Within that application, the
clerk is required to include a copy of the application,
any answers filed, and a certificate reciting the date on
which the trial court`s Iinding was made.
If the convicting court decides there are
controverted facts, it is required to enter an order
designating issues (ODI) setting out the facts to be
resolved. In order to resolve the issues set out in the
ODI, the trial court may:

Order affidavits from the parties;
Order depositions;
Order interrogatories;
Order hearings;
Order additional forensic testing
2
; and;

2
The State shall pay the cost for the additional forensic
testing ordered by the trial court, unless the Applicant is
being represented by retained counsel. In that case, the
Applicant shall bear the costs for the additional testing. The
rules also state that 'additional Iorensic testing does not
Use its personal recollection of the specific
cause in question.

Article 11.07(d), provides that the trial court may also
appoint an attorney or magistrate to hold a hearing and
make findings of fact. It should be noted that if a
hearing is held, it is the duty of the court reporter to
prepare a transcript with 15 days of its conclusion.

What if I, as habeas counsel, believe that the
applicant should not remain incarcerated while the
Court deliberates? Article 11.65 provides that bond
may be granted for certain habeas applicants seeking
relief from a judgment imposing a penalty other than
death. The condition set out under subsection (b) of the
statute is that the proposed findings of fact and
conclusions of law, made by either the trial court or an
appointed attorney or magistrate, must be stipulated to
by both the applicant and the State. Once that condition
is met, the trial court may order the release of the
applicant on bond, subject to the conditions imposed
by the trial court, until the applicant is denied relief,
remanded to custody, or ordered released by the Court.

V. 11.07 - MAIN ISSUES HANDLED
The following is a general listing of the types of
issues which are considered by the Court of Criminal
Appeals when analyzing art. 11.07 applications for
writs of habeas corpus. This list is NOT meant to be
all-inclusive. However, the following issues will most
likely cover ninety percent of the claims, pro se or
raised by an attorney, that a trial judge will be
considering within the context of an 11.07 application.
Keep these issues in mind when tailoring the grounds
and facts in your application.

A. $SSOLFDQWVEXUGHQRISURRI
The burden of proof is on the applicant.

An applicant must plead and prove facts
which entitle him to relief and he must prove
his claim by a preponderance of the evidence.
Ex parte Rains, 555 S.W.2d 478 (Tex. Crim.
App. 1976).
An applicant must show, or at least allege,
the detailed facts which give rise to, and
compel each legal conclusion that entitles
him to relief. Ex parte Hogan, 556 S.W.2d
352 (Tex. Crim. App. 1977).
- Texas courts have confined the scope of post-
conviction writs of habeas corpus to
jurisdictional or fundamental defects and
constitutional claims. Violations of statutes,

include forensic DNA testing as provided for in Chapter 64
of the Code of Criminal Procedure.

3
rules, and other non-constitutional doctrines
are not recognized. Ex parte Graves, 70
S.W.3d 103 (Tex. Crim. App. 2002).
- The Court has recognized that delay on the
applicant`s part will aIIect his credibility. Ex
parte Young, 479 S.W.2d 45 (Tex. Crim.
App. 1972).
- The State may raise a claim of laches. The
State must make a particularized showing of
prejudice in its ability to respond to the
claims which is caused by applicant`s
unreasonable delay in filing the writ, but
delay alone does not demonstrate such
particularized prejudice. Ex parte Carrio,
992 S.W.2d 486 (Tex. Crim. App. 1999).

B. 1R:D\,VVXHV
The following issues will result in a fairly quick
denial of relief, or dismissal of the writ, so it is usually
best not to take up space by raising them:

Quick Denials:

4
th
Amendment violations. The seminal
case in this area is Ex parte Kirby, 492
S.W.2d 579 (1973). In Kirby, the Court held
that the failure to raise the question of
sufficiency of an affidavit for search warrant
on direct appeal was tantamount to an
abandonment of that complaint, and would
not be considered for the first time on a writ
of habeas corpus;
- Violations of Miranda. The Court has held
that a defendant waived objections to the
admission of portions of his confession
without proof of proper Miranda warnings
because the defendant failed to timely raise
objections at trial. Ranson v. State, 707
S.W.2d 96 (Tex. Crim. App. 1986);
I nsufficiency of the evidence. A claim of
insufficiency of the evidence does not state a
claim for relief in habeas corpus. Ex parte
Easter 615 S.W.2d 719 (Tex. Crim. App.
1981). But a claim of no evidence is
cognizable on habeas. Ex parte Perales, 215
S.W.3d 418 (Tex. Crim. App. 2007)
(holding that 'an allegation oI delivery oI a
controlled substance by actual transfer to an
unborn child cannot constitute delivery and
entering a judgment of acquittal)(citing Ex
parte Coleman, 599 S.W.2d 305 (Tex. Crim.
App. 1978);
- Defective indictment. Failure to object to
the form or substance of an indictment before
the day of trial is a waiver of such complaint.
Ex parte Gibson, 800 S.W.2d 548 (Tex.
Crim. App. 1990);
Issues al ready raised and rej ected on
di rect appeal. Issues raised and rejected on
direct appeal may not be reconsidered on a
post conviction writ. Ex parte Schuessler,
846 S.W.2d 850 (Tex. Crim. App. 1993).
The Court has also held that habeas relief is
not available to one who has already litigated
his claim at trial, in post-trial motions, or on
direct appeal. Ex parte Brown, 205 S.W.3d
538 (Tex. Crim. App. 2006). There is a
limited exception for some ineffective
assistance of counsel issues raised on direct
appeal. Ex parte Nailor, 149 S.W.3d 125
(Tex. Crim. App. 2004), and Ex parte Torres
943 S.W.2d 469 (Tex. Crim. App. 1997);
- Issues that should have been raised on
di rect appeal. An art. 11.07 writ of habeas
corpus should not be used as a substitute for
an appeal. Ex parte Clore, 690 S.W.2d 899
(Tex. Crim. App. 1985). The Great Writ
should not be used to litigate matters which
should have been raised on direct appeal. Ex
parte Banks, 769 S.W.2d 539 (Tex. Crim.
App. 1989). An error resulting from
improperly cumulated sentences should be
raised on direct appeal, and not initially on
habeas corpus. Ex parte Townsend, 137
S.W.3d 79 (Tex. Crim. App. 2004). An
allegation regarding an improper finding that
a deadly weapon has been used should be
raised on direct appeal, and not initially on
habeas corpus. Ex parte Nelson, 137 S.W.3d
666 (Tex. Crim. App. 2004).
- Issues which have been forfeited under the
Contemporaneous Obj ection Rule. This is
analogous to the previous category. In
general, any error which could have been
objected to at trial, but was not, is waived.
For example, any complaints regarding
rulings made by a trial court will not result in
relief on habeas corpus.
- Statutory violations only. As mentioned
previously, the violation of a facially valid
mandatory statute is not cognizable in an Art.
11.07 writ where no violation of federal
constitutional rights has occurred. Ex parte
Graves, 70 S.W.3d 103 (Tex. Crim. App.
2002); Ex parte Sadberry, 864 S.W.2d 541
(Tex. Crim. App. 1993).
- Alleging prior convictions for
enhancement purposes violates Double
Jeopardy. Enhanced punishments for repeat
offenders do not violate the Double Jeopardy
Clause of the U.S. Constitution. Witte v. US,

4
515 U.S. 389 (1995). In general, remoteness
of a prior conviction does not affect its use
for purposes of enhancement. Loud v. State,
499 S.W.2d 295 (Tex. Crim. App. 1973).
Grounds of er ror raised only pursuant to
the Texas Constitution. Claims based upon
the Texas Constitution, which are subject to a
harmless error analysis, are not cognizable on
habeas. Ex parte Dutchover, 779 S.W.2d 76
- A violation of the I nterstate Agreement on
Detainers. Claims based on a violation of the
Interstate Agreement on Detainers are not
cognizable on habeas. Ex parte Sanchez, 918
S.W.2d 526 (Tex. Crim. App. 1996).
- Complaints regarding an unlawful grant
of probation. The Court of Criminal Appeals
has held that such complaints are not
cognizable on habeas. Ex parte Williams, 65
S.W. 3d 656 (Tex. Crim. App. 2001).
- Complaints regarding prison
conditions/disciplinary hearings. The Court
of Criminal Appeals has held that such
complaints are not cognizable on habeas. Ex
parte Brager, 704 S.W.2d 46 (Tex. Crim.
App. 1986).
- Complaints involving unauthorized fines.
In Ex parte Pena, 71 S.W.3d 336 (Tex. Crim.
App. 2002), the applicant argued that he was
entitled to habeas relief because the fine
listed on his judgment was 'unauthorized by
law, thus rendering his sentence void. The
Court disagreed and found that the judgment
could have been inaccurate in that it was
inconsistent with the jury`s verdict, but the
sentence was neither 'void nor 'illegal.
The Court then held that a claim that a
judgment is inaccurate, which is neither a
claim of jurisdictional defect nor of a
violation of constitutional or fundamental
rights, is not a basis for habeas relief.
- Speedy trial claim based on Texas statute.
These claims are not cognizable. Ex parte
Owenby, 749 S.W.2d 880 (Tex. Crim. App.
1988). Speedy trial claims based on the
federal constitution are technically
cognizable, but will probably not result in
relief. If the applicant did not file a motion
for speedy trial, error will have been waived.
And, if the applicant did file a motion for
speedy trial which was denied by the trial
court and this issue was raised and rejected
on direct appeal, the Court will not
reconsider the issue on habeas. The best way
to raise a federal speedy trial violation is
through ineffective assistance of counsel.
- Complaints involving good/wor k time
credit. The Court has held that an inmate
cannot obtain good conduct credit by way of
a writ of habeas corpus. Ex parte Palomo,
759 S.W.2d 671 (Tex. Crim. App. 1988).
- The trial j udge did not properly take the
requi red oaths or have them on fi le at the
time of trial. The right of a judge to the
office in which he functions may not be
attacked collaterally. When a judge is
holding office under color of title by
appointment and discharging the duties of the
office, his acts are conclusive as to all
persons interested and cannot be attacked in a
collateral proceeding, even if the person
acting as judge lacks the necessary
qualifications and may be incapable of
legally holding the office. Snow v. State, 114
S.W.2d 898, 900 (Tex. Crim. App. 1937).
- The Applicant waived the right to file an
art. 11.07 writ as part of a plea agreement.
As part of a plea agreement, a defendant may
validly waive claims that reasonably should
have been known to him at the time he
waived his right to habeas corpus relief. Ex
parte Reedy, 282 S.W.3d 492 (Tex. Crim.
App. 2009). However, any waiver would be
of limited effect. The Court also held in
Reedy, that a waiver of habeas corpus relief
is not enforceable in order to prohibit an
applicant from claiming that his guilty plea
was the product of constitutionally
ineffective assistance of counsel.

Quick Dismissals:

Misdemeanor convictions. No jurisdiction.
Art. 11.07, 1, 3(a)-(b). Ex parte Johnson,
561 S.W.2d 841 (Tex. Crim. App. 1978).
However, the Court has held that art. 11.07
relieI is available where the applicant`s
felony conviction was actually a
misdemeanor. Ex parte Sparks, 206 S.W.3d
680 (Tex. Crim. App. 2006);
Probated sentences. No jurisdiction. Art.
11.07, 1, 3(a)-(b). Ex parte Twyman, 716
S.W.2d 951 (Tex. Crim. App. 1986). The
remedy at law in these situations is to file an
application for writ of habeas corpus
pursuant to art. 11.072;
Di rect appeal still pending. No jurisdiction.
Art. 11.07, 1, 3 (a)-(b). Ex parte Johnson,
12 S.W.3d 472 (Tex. Crim. App. 2000); Ex
parte Brown, 662 S.W.2d 3 (Tex. Crim. App.
1983). An appeal is considered pending until
mandate is issued by the intermediate

5
appellate court. The Court further clarified
the definition of when a mandate is issued in
Ex parte Webb, 270 S.W.3d 108 (Tex. Crim.
App. 2008). In Webb, the Court held that an
applicant`s conviction becomes Iinal Ior
purposes of art. 11.07 when an appellate
court issues a mandate affirming the
conviction, even though the Court
subsequently granted an out-of-time petition
for discretionary review (PDR), a PDR was
filed and refused, and the original mandate
was never withdrawn. In essence, the original
mandate is held dormant until such time as
the Court can dispose of the out-of-time
PDR;
Non-compliance with the filing
requi rements of TRAP 73.1. The Court has
held that the Texas Rules of Appellate
Procedure require an applicant to state the
grounds for relief, and a concise recitation of
the facts in support of the grounds, on the
prescribed form. Ex parte Blacklock, 191
S.W.3d 718 (Tex. Crim. App. 2006). A
separate memorandum attached to the form is
allowed, but it cannot be a substitute for the
form.
- Juvenile adj udications. Because such an
adjudication is not a final felony conviction
for purposes of art. 11.07, habeas corpus
does not lie under that article`s provisions Ior
post-conviction relief from this Court. Ex
parte Valle, 104 S.W.3d 888 (Tex. Crim.
App. 2003).
- Complaints about DNA hearings pursuant
to Chapter 64 of the Code of Criminal
Procedure. Proceedings under Chapter 64 do
not challenge an applicant`s conviction or
sentence. Ex parte Suhre, 185 S.W.3d 898
(Tex. Crim. App. 2006); Ex parte Baker, 185
S.W.3d 894 (Tex. Crim. App. 2006).
- Applicant`s sentence has discharged.
Article 11.01 defines the writ of habeas
corpus as follows:

The writ of habeas corpus is the remedy to be used
when any person is restrained in his liberty. It is an
order issued by a court or judge of competent
jurisdiction, directed to anyone having a person in his
custody, or under his restraint, commanding him to
produce such a person, at a time and place named in
the writ, and show why he is held in custody or under
restraint.
If the Applicant has discharged his sentence, he is
not 'restrained in his liberty in most cases and the
application should be dismissed. However, the Court
has held that 'mootness cannot prohibit a collateral
attack if prior discharged convictions may have
collateral consequences to a criminal deIendant. Ex
parte Ormsby, 676 S.W.2d 130, 131 (Tex. Crim. App.
1984). The Court has recently clarified what can be
considered a collateral consequence in the context of a
discharged sentence. In Ex parte Harrington,
__S.W.3d__, 2010 WL 2077159 (Tex. Crim. App.
2010), the Court held that Article 11.07, 3(c), now
explicitly provides that 'conIinement means
confinement for any offense or any collateral
consequence resulting from the conviction that is the
basis oI the instant habeas corpus.
3
Thus, a showing
of a collateral consequence, without more, is now
suIIicient to establish 'conIinement so as to trigger
application of art. 11.07. That an applicant is not in the
actual physical custody of the government at the time
of filing does not preclude his application nor deprive
the trial court of jurisdiction to consider it. This would
apply to both current and potential collateral
consequences.

- The issue raised has become moot. If the
relief requested is granted subsequent to the
filing of the application with the district
clerk, but prior to the Court`s ruling on the
application, it will be dismissed as moot. The
death of an applicant will also render an
application moot. Ex parte Cruz, 946 S.W.2d
347 (Tex. Crim. App. 1997).
- Subsequent applications under Article
11.07 4. This dismissal is the least 'quick
of this group. Subsection (a), of 4 states:

If a subsequent application for writ of habeas corpus is
filed after final disposition of an initial application
challenging the same conviction, a court may not
consider the merits of or grant relief based on the
subsequent application unless the application contains
sufficient specific facts establishing that:

(1) the current claims and issues have not been
and could not have been presented previously
in an original application or in a previously
considered application filed under this article
because the factual or legal basis for the
claim was unavailable on the date the
applicant filed his previous application; or
(2) by a preponderance of the evidence, but for a
violation of the United States Constitution no
rational juror could have found the applicant
guilty beyond a reasonable doubt.

3
TEX. CODE. CRIM. PROC. art 11.07, 3(c) (emphasis
added).

6
Subsection (b) of the statute states that a legal basis for
a claim is unavailable if the legal basis was not
recognized by, and could not have been reasonably
formulated from, a final decision of the Supreme
Court, the federal courts of appeals, or any appellate
court of the State of Texas. Subsection (c) of the statute
states that a factual basis of a claim is unavailable if the
facts were not ascertainable through the exercise of
reasonable diligence.
The Court has held that the procedural bar of 4
is limited to instances in which the initial application
raised claims regarding the validity of the prosecution
or the judgment. Ex parte Evans, 964 S.W.2d 643
(Tex. Crim. App. 1998). Therefore, a prior habeas
application which only raised grounds concerning
parole revocation did not raise claims which would
trigger the procedural bar of 4. See id. And a prior
application which only sought an out-of-time appeal
did not raise a claim which would trigger the
procedural bar of 4. Ex parte McPherson, 32 S.W.3d
860 (Tex. Crim. App. 2000). However, the Court has
held that once an applicant files a habeas writ attacking
the validity of the prosecution or judgment, all
subsequent applications regarding the same conviction
must meet one of the exceptions set out in the statute.
Ex parte Whiteside, 12 S.W.3d 819 (Tex. Crim. App.
2000).
Interpretations of the statute are still ongoing. In
Ex parte Brooks, 219 S.W.3d 396 (Tex. Crim. App.
2007), the Court held that an applicant must
accompany constitutional violation claims with a prima
facie claim of actual innocence in order to satisfy the
requirements of Article 11.07, section 4(a)(2). A
successful claim of double jeopardy in a subsequent
writ can make a prima facie showing of actual
innocence. Ex parte Knipp, 236 S.W.3d 214 (Tex.
Crim. App. 2007). And the Court has also held that a
prior habeas application which raised a claim that
appellate counsel was ineffective for failing to
challenge the indictment on appeal, constituted an
initial application that challenged the conviction under
4. Ex parte Santana, 227 S.W.3d 700 (Tex. Crim.
App. 2007).

- What if I have a multi-count indictment
where the sentence in at least one of the
counts involves probation?

You would need to file a habeas application under art.
11.07 to attack the counts that do not involve
probation, and under art. 11.072 to attack the counts
that do involve probation. Otherwise, your application
will be denied in part, and dismissed in part, by the
Court. Ex parte Carlos Hiracheta, 307 S.W.3d 323
(Tex. Crim. App. 2010)

C. Ineffective Assistance of Counsel
This area constitutes the largest segment of claims
raised on art. 11.07 habeas. It is important to
remember that, with the narrow exception as set out by
the Court in Ex parte Nailor, 149 S.W.3d 125 (Tex.
Crim. App. 2004), and Ex parte Torres 943 S.W.2d
469 (Tex. Crim. App. 1997), claims of ineffective
assistance of counsel will always be considered by the
Court. Therefore, whenever possible, always raise a
ground for relief in the context of ineffective assistance
of counsel. For example, you will not ever receive
relief on a Fourth Amendment claim in habeas, but
your claim will be considered and you may receive
relief if your claim is that counsel failed to raise a
Fourth Amendment claim.
To go into depth regarding the law concerning
ineffective assistance would constitute a paper in and
of itself. In general, the practitioner must always bear
in mind certain key holdings when dealing with these
claims:

1. In determining whether a defendant has
received ineffective assistance of counsel,
courts shall use the standard set forth in
Strickland v. Washington, 466 U.S. 668
(1984).
4
In order to show counsel was
ineffective, an applicant must show that
counsel`s perIormance was deIicient, and that
the deficient performance prejudiced the
defense
5
;
2. In Texas, a defendant in a criminal case is
entitled to reasonably effective assistance of
counsel. Ex parte Duffy, 607 S.W.2d 507
(Tex. Crim. App. 1980). To obtain habeas
corpus relief for ineffective assistance of
counsel under Strickland, an applicant must
show that his counsel`s perIormance was
deIicient and that there is a 'reasonable
probability, one sufficient to undermine
confidence in the result, that the outcome
would have been different but for his

4
The Court of Criminal Appeals adopted the Strickland
standard in Hernandez v. State, 726 S.W.2d 53 (Tex. Crim.
App. 1986).
5
The Supreme Court held, in pertinent part:
First, the deIendant must show that counsel`s perIormance
was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the
'counsel guaranteed by the Sixth Amendment. Second, the
defendant must show that the deficient performance
prejudiced the deIense. This requires showing that counsel`s
errors were so serious as to deprive the defendant of a fair
trial, a trial whose result was reliable.
466 U.S. at 687.

7
counsel`s deIicient perIormance. Ex parte
Scott, 190 S.W.3d 672 (Tex. Crim. App.
2006);
3. Whether a defendant has received effective
assistance is to be judged by 'the totality oI
the representation, rather than isolated acts
or omissions of trial counsel. Ex parte
Raborn, 658 S.W. 602 (Tex. Crim. App.
1983). The Court has also held that, in
determining whether ineffective assistance of
counsel has been shown, the Court will
presume that trial counsel made all
significant decisions in the exercise of
reasonable professional judgment. Delrio v.
State, 840 S.W.2d 443 (Tex. Crim. App.
1992). And counsel is not ineffective simply
because another attorney may have employed
a different strategy. Passmore v. State, 617
S.W.2d 682 (Tex. Crim. App. 682 (Tex.
Crim. App. 1981)
6
;
4. The courts should consider the effectiveness
oI counsel`s perIormance as oI the time oI
trial, and not through hindsight. Hawkins v.
1983).
5. The right to counsel is required at every stage
of a criminal proceeding where the
substantial rights of the accused may be
affected. Mempa v. Rhay, 389 US 128
(1967). This would include the revocation of
probation. Ex parte Richardson, 496 S.W.2d
611 (Tex. Crim. App. 1973).
6. The right to counsel applies to both the guilt-
innocence and the punishment phase of a
trial. Ex parte Hernandez, 988 S.W.2d 770

Here a just a few of the ineffective assistance claims
which are most commonly raised:

Counsel deprived the Applicant of his
right to a di rect appeal. Most often these
claims arise due to the inadvertent failure of
counsel to timely file notice of appeal. Out of
time appeal claims should be sought pursuant
to the Court`s ruling in Ex parte Axel, 757
S.W.2d 369 (Tex. Crim. App. 1988). In Axel,
the Court held, in pertinent part:

A. Representation by counsel does not
terminate at the end of trial. The
sentencing proceeding is a critical part

6
Overruled on other grounds in Reed v. State, 744 S.W.2d
112 (Tex. Crim. App. 1988).
of trial, requiring assistance from trial
counsel, and similarly thereafter the
determination to give notice of appeal.
Informing a defendant of his right to
appeal is part and parcel of also further
advising him in order to make a decision
whether to take an appeal;
B. Counsel cannot 'bow out oI
representation without notice to the
court and the accused and frustrate
Iorever the accused`s rights to protect
his vital interests;
C. Trial counsel, whether retained or
appointed, has the duty, obligation and
responsibility to consult with and fully
advise his client concerning the meaning
and effect of the judgment rendered by
the court, his right to appeal from that
judgment, the necessity of giving notice
of appeal and taking other steps to
pursue an appeal, as well as expressing
his professional judgment as to possible
grounds for appeal and their merit, and
delineating advantages and
disadvantages of appeal. The decision to
appeal belongs to the defendant.

Relief will also be granted if an applicant was deprived
of his meaningful right to a direct appeal due to
circumstances which were outside the control of
counsel. For example, the Court has, in unpublished
opinions, granted relief when papers had been
misplaced by clerks, or notices of appeal had been
destroyed by flooding, etc. In these cases, applicants
were granted out-of-time appeals on a basis other than
the ineffective assistance of their counsel.
It is also important to remember that a defendant
can waive his appeal as part of a plea bargain
agreement. The Court has held that a defendant may
knowingly and intelligently waive his entire appeal as
part of a plea, even when sentencing is not agreed
upon, where consideration is given by the State for that
waiver. Ex parte Broadway, 301 S.W.3d 694 (Tex.
Crim. App. 2009).

Counsel deprived the Applicant of his
right to file a pro se petition for
discretionary review. Counsel has a duty to
timely inform an appellant of the appellate
court`s decision, and of his right to pursue
discretionary review on his own. Ex parte
Crow, 180 S.W.3d 135 (Tex. Crim. App.
2005); Ex parte Wilson, 956 S.W.2d 25
(1997). Timely informing an applicant that
his appeal had been affirmed without
informing him of his right to pursue a PDR

8
on his own is not sufficient. Ex parte
Florentino, 206 S.W.3d 124 (Tex. Crim.
App. 2006). This duty also extends to
counsel who have filed an Anders brief. Ex
parte Owens, 206 S.W.3d 670 (Tex. Crim.
App. 2006). In cases where counsel was not
ineIIective, but there has been a 'breakdown
in the system, due process requires that an
applicant be permitted to exercise his
statutory right to file a PDR. Ex parte Riley,
193 S.W.3d 900 (Tex. Crim. App. 2006).

Both out-of-time appeal and out-of-time PDR claims
may have become less viable after changes were made
to the Texas Rules of Appellate Procedure in 2007.
Effective September 1, 2007, TRAP 25.2 was amended
to state under subsections (d) and (h):

If the defendant is the appellant the record
must include the trial court`s certiIication oI
the deIendant`s right oI appeal under Rule
25.2(a)(2). The certification shall include a
notice that the defendant has been informed
of his rights concerning an appeal, as well as
any right to file a pro se petition for
discretionary review. This notification shall
be signed by the defendant with a copy given
to him. The certification should be part of the
record when notice is filed, but may be added
by timely amendment or supplementation
under this rule or Rule 34.5(c)(1) or Rule
37.1 or by order of the appellate court under
Rule 34.5(c)(2). The appeal must be
dismissed if a certification that shows the
defendant has the right of appeal has not been
made part of the record under these rules.

Advice of Right to Appeal. When a court
enters a judgment or other appealable order
and the defendant has a right of appeal, the
court (orally or in writing) shall advise the
defendant of his right to appeal and of the
requirements for timely filing a sufficient
notice of appeal.

A new rule, TRAP 48.4 (Opinion Sent to Criminal
Defendant), was also enacted. That rule states:

In criminal cases, the attorney representing
the defendant shall, within five days after the
opinion is handed down, send his client a
copy of the opinion and judgment, along with
notification of the deIendant`s right to Iile a
pro se petition for discretionary review under
Rule 68. This notification shall be sent
certified mail, return receipt requested, to the
defendant at his last known address. The
attorney shall also send the court of appeals a
letter certifying his compliance with this rule
and attaching a copy of the return receipt
within the time for filing a motion for
rehearing. The court of appeals shall file this
letter in its record of the appeal.

Keep these rule changes in mind when you are setting
out your claim for relief.

Applicants alleging that thei r pleas of
guilty were rendered involuntary due to
the ineffective assistance of counsel.

Of course, the above grounds are just the grounds upon
which relief is frequently granted by the Court on the
basis of ineffective assistance. Applicants also raise
numerous claims regarding the failure to investigate,
the failure to interview witnesses, the failure to pass
along plea offers, etc. Here are some examples of
claims and the related law:

Counsel failed to pass along a plea offer
from the State. In Ex parte Lemke, 13
S.W.3d 791 (Tex. Crim. App. 2001), the
Court granted relief and directed the trial
court to withdraw the applicant`s guilty plea
and have the State re-instate its twenty year
plea offer because applicant showed his
attorney acted unprofessionally in not
informing him of plea bargain offers and that
applicant was prejudiced as a result.
- Counsel failed to investigate the status of
prior conviction. The Court has held that it
is fundamental that an attorney representing a
defendant must acquaint himself not only
with the facts of the law, but also the facts of
the case before he can render reasonably
effective assistance of counsel, and that
relying upon the facts of the case as
represented by a prosecuting attorney is not
sufficient. Butler v. State, 716 S.W.2d 48
(Tex. Crim. App. 1986). For example, in Ex
parte Pool, 738 S.W.2d 285 (Tex. Crim.
App. 1987), the Court granted relief where
counsel submitted an affidavit in which he
admitted that he relied upon information
presented to him by the prosecutor and
conducted no independent investigation
regarding the status oI applicant`s prior
convictions, and the prosecutor submitted an
affidavit admitting that he unintentionally
gave defense counsel erroneous information.
- Counsel failed to file an application for
probation because he er roneously believed

9
that Applicant was not eligible. In Ex parte
Welch, 981 S.W.2d 183 (Tex. Crim. App.
1998), the Court set aside the trial court`s
judgment and sentence because trial
counsel`s Iailure to Iile a motion Ior
probation rendered his assistance at trial
ineffective.
7

- Counsel failed to inform applicant that the
trial court could not award shock
probation. In Ex parte Canedo, 818 S.W.2d
814 (Tex. Crim. App. 1991), counsel advised
the applicant to sign a change of election
because at the time, he believed that the trial
court could grant shock probation, and since
this was the applicant`s Iirst conviction there
was a good chance that shock probation
would be assessed. However, counsel did not
realize until after the conclusion of the trial
that the trial court had no authority to grant
shock probation in an aggravated sexual
assault case. The Court held that this advice
deprived the applicant of the opportunity to
have the jury assess probation, thus causing
counsel`s perIormance to Iall below the
standard of reasonableness required of a
criminal defense attorney.
- Counsel in the applicant`s prior habeas
corpus application was ineffective.
Therefore, the subsequent writ provisions
of art. 11.07, 4 should not apply. The
Court has held that this claim is not
cognizable as it relates to death penalty writs
and the subsequent writ provisions of 5 of
art. 11.071. See Ex parte Graves, 70 S.W.3d
103, 110.
- Counsel used the applicant`s prior
criminal record for impeachment
purposes. In Ex parte Ellis, 233 S.W.3d 324
(Tex. Crim. App. 2007), the Court concluded
that, although the defensive course chosen by
counsel was risky, and perhaps highly
undesirable to most criminal defense
attorneys, it could not say that no reasonable
trial attorney would pursue such a strategy
under the facts of this case.
Counsel failed to call a witness. On an
uncalled witness claim, an applicant must
show that the witnesses were available, and
that their testimony would have been of some

7
Even though the applicant`s complaint only related to
counsel`s actions during punishment, the Court set aside the
entire conviction. I don`t believe this is correct, and the
Court should have only remanded the cause for a new
punishment hearing.
benefit to the defense. King v. State, 649
S.W.2d 42 (Tex. Crim. App. 1983);
Counsel er roneously advised me regarding
my parole eligibility. The erroneous advice
of counsel on the subject of parole eligibility
will not render a plea involuntary. Ex parte
Moussazadeh, 64 S.W.3d 404 (Tex. Crim.
App. 2001); Ex parte Evans, 690 S.W.2d 274
(Tex. Crim. App. 1985). However, if the
erroneous advice given by counsel becomes
incorporated into the plea agreement relief
may be obtained. In Ex parte Hairston, 766
S.W.2d 790 (Tex. Crim. App. 1989), an
erroneous parole eligibility calculation was
part oI the applicant`s plea bargain agreement
and the Court held that, as a result, the plea
was involuntary;
Counsel had a bar grievance filed against
him. A finding of professional misconduct
based on other matters, as well as actions of
counsel at trial, should have no bearing on a
subsequent art. 11.07 proceeding alleging
solely the ineffective assistance of counsel at
trial. Ex parte Raborn, 658 S.W.2d 602
- Counsel failed to obj ect. To successfully
assert that trial counsel`s Iailure to object
amounted to ineffective assistance, an
applicant must show that the trial judge
would have committed error in overruling
such an objection. Ex parte White, 160
S.W.3d 46 (Tex. Crim. App. 2004); Vaughn
v. State, 931 S.W.564 (Tex. Crim. App.
1996).
- Counsel failed to visit the crime scene. In
Wilkerson v. State, 726 S.W.2d 542 (Tex.
Crim. App. 1986), the Court found that, even
though counsel failed to visit the scene of the
crime, there was nothing in the record to
show that potential defenses were precluded
or that a visit to the scene would have made
any difference to the deIense`s case. Thus, no
harm was shown.
- Counsel merely entered a pro forma
appearance. A pro forma appearance of
counsel does not amount to 'assistance oI
counsel or 'due process oI law. Ex parte
Harris, 596 S.W.2d 893 (Tex. Crim. App.
1980). In Harris, counsel was very
inexperienced, did not advise the defendant,
and was under the impression that if the
defendant pled guilty, he would receive a 10
year sentence to run concurrently with
another sentence. The defendant then pled
guilty and was sentenced to life.

10
- Counsel failed to render effective
assistance due to a failure to prepare. In Ex
parte Dunham, 650 S.W.2d 825 (Tex.
Crim.App. 1983), the applicant contended
that he was denied effective assistance of
counsel because his trial attorney persuaded
him to waive his right to a jury trial so
counsel would not need to prepare for voir
dire of the jury panel. At the evidentiary
hearing counsel admitted that at the time of
trial he knew that this was bad legal advice
and was not advantageous to the applicant.
The Court found that the applicant was
denied effective assistance of counsel
because he was not given competent advice
and was prevented from making an informed
and conscious choice regarding his right to a
jury trial.
- Counsel er roneously assured applicant
that his state and federal sentences would
run concur rently. The Court held that
counsel`s advice was not competent where
the manner in which applicant would serve
his sentences was ascertainable because it
was a matter of law. Ex parte Moody, 991
S.W.2d 856 (Tex. Crim. App. 1999).
- Counsel failed to investigate whether the
applicant was insane at the time of the
offense and failed to inform him of the
availability of an insanity defense. When
retained counsel first met with the applicant,
he 'stared into space, struck an odd pose with
his fingers on his chin, mumbled, and was
incoherent. Co-counsel then met with
applicant and Ielt there was 'something
wrong with him. Counsel had the applicant
examined for competency, but they did not
investigate whether he was insane at the time
of the offense. Based upon an extensive
record, the Court held that counsel had erred
in Iailing to investigate applicant`s sanity at
the time of the offense, and there was a
reasonable probability that, if counsel had
informed him of the possibility of pursuing
an insanity defense, he would not have pled
guilty and would have gone to trial. Ex parte
Imoudu, 284 S.W.3d 866 (Tex. Crim. App.
2009).
- Counsel failed to request that an
accomplice witness testimony instruction
be given to the j ury after the accomplice
testified in a prosecution for burglary of a
habitation. The Court held that, while
counsel`s Iailure request the instruction was
deficient performance, the error did not
amount to ineffective assistance. Davis v.
2009). Non-accomplice testimony placed the
defendant loitering at the crime scene several
hours before the offense and at-or-near the
time of the offense, put defendant in the
company of an accomplice at-or-near the
time of the offense, and established that the
defendant sold a video game system that
matched the one taken from the complainant
shortly after the offense occurred.
- Counsel failed to obj ect to inadmissible
(and probably outrageous) statements by a
prosecution witness. The Court held that the
Applicant was prejudiced by counsel`s
failure to object, during the punishment
phase, to testimony by a DEA agent on the
dangers and societal costs caused by
methamphetamine, that methamphetamine
was one of the two most highly addictive
drugs, and that the amount of drugs found in
Applicant`s car was enough to get 45,000
people high.
8
Ex parte Lane, 303 S.W.3d 702
- Be careful with that opening argument!
Extraneous offense evidence in the form of
accusations of sexual abuse by two young
girls against the defendant was relevant to
rebut the deIendant`s claim, made during
opening argument, that the complainant`s
allegations were pure fabrication and that the
defendant would not engage in such conduct.
Bass v. State, 270 S.W.3d 557 (Tex. Crim.
App. 2008).
- Get affidavits or secure an evidentiary
hearing if possible!! It is important that
practitioners, as part of meeting their burden
of proof in these situations, at least try and
obtain affidavits from attorneys addressing
claims of ineffective assistance of counsel.
This is especially true in situations where the
trial court is recommending that relief be
granted. Bear in mind that the applicant has
accused counsel of violating his
constitutional rights, and the Court will
almost always provide an attorney with an
opportunity to respond to a claim of
ineffective of counsel before finding counsel
ineffective. Andrews v. State, 159 S.W.3d 98
(Tex. Crim. App. 2005). However, if the
record which is sent to the Court clearly
reflects that counsel was recalcitrant in

8
The amount of methamphetamine involved was 225.44
grams.

11
providing an affidavit, the chances of a
remand are greatly lessened.

D. Involuntary Pleas
In post conviction habeas proceedings there is a
presumption of regularity with respect to guilty pleas,
and the applicant bears the burden of overcoming the
presumption. Ex parte Wilson, 716 S.W.2d 953 (Tex.
Crim. App. 1986). A plea of guilty entered by an
applicant fully aware of the direct consequences must
stand unless induced by threats, misrepresentation, or
perhaps by improper promises. Ex parte Morrow, 952
S.W.2d 530, 534 (Tex. Crim. App. 1997) (quoting
Brady v. U.S., 397 U.S. 742, 755 (1970)). The majority
of involuntary plea claims dovetail into an overall
claim of ineffective assistance of counsel.
9
However,
many applicants claim their pleas were rendered
involuntary due to some action, or inaction, on the part
of the trial court. For example, an applicant, who is an
illegal alien facing deportation could raise a claim that
his plea was involuntary because he was not
admonished of the deportation consequences of a
conviction. Ex parte Tovar, 901 S.W.2d 484 (Tex.
Crim. App. 1995).
10
Also, the Court has held that the
registration requirement for a person who is convicted
of a sex oIIense is a direct consequence oI the person`s
guilty plea, and a trial court is required to admonish
him about the registration requirement. Anderson v.
State, 182 S.W.3d (Tex. Crim. App. 2006).
In an interesting case regarding a recantation by
the complainants, the Court granted relief on the basis
of an involuntary plea. In Ex parte Zapata, 235 S.W.3d
794 (Tex. Crim. App. 2007), the Court granted relief in
a situation where the applicant was not aware, at the
time he entered his plea, that the complainants had
recanted their accusations and would not have testified
against him at trial. The applicant had learned of the
recantations after the entry of the plea but before
sentencing. At the evidentiary hearing on the writ, the
applicant testified that he misunderstood his counsel

9
Usually, these claims involve erroneous advice by counsel
regarding the applicable punishment range, whether an
applicant`s sentence would run either concurrently or
consecutively with another sentence, whether an applicant
would receive community supervision in exchange for his
plea of guilty, or that erroneous promises were made that an
applicant would receive a specific sentence in exchange for a
plea of guilty or nolo contendere.
10
It is unclear whether the scope and content of the current
deportation admonishments set out under Article 26.13(a)(4)
of the Texas Code of Criminal Procedure will be sufficient
to satisIy the Supreme Court`s recent opinion in Padilla v.
Kentucky, 130 S.Ct. 1473 (2010). If they are not, counsel
may be required to give more detailed advice regarding
immigration consequences.
and believed incorrectly that he could withdraw his
plea at any time before sentencing, and that he
fabricated admissions because he sought a more lenient
sentence. Two oI the applicant`s three daughters
testified at the evidentiary hearing that they falsely
accused him of sexually abusing them, and the trial
court concluded that the applicant`s plea was not
voluntarily and knowingly entered.

E. Brady Violations and Prosecutorial
Misconduct
The State has an affirmative duty to disclose all
material, exculpatory evidence to the defense under
Brady v. Maryland, 373 U.S. 83 (1963). Evidence is
material only if there is a reasonable probability that,
had the evidence been disclosed to the defense, the
result would have been different. Ex parte Adams, 768
S.W.2d 281 (Tex. Crim. App. 1989).
Applicants often allege that the State used
perjured testimony in obtaining the conviction.
Usually, as part of their pleadings, the applicants will
point to various discrepancies in testimony given by
witnesses. However, discrepancies in testimony alone
do not make out a case for perjury. Losada v. State,
721 S.W.2d 305 (Tex. Crim. App. 1986). Therefore,
when raising these claims always stress that your
allegations do not involve discrepancies in witness
testimony, but actual perjury. Every attempt should be
made to obtain affidavits from the witness in question,
or a live hearing should be requested where the witness
is subjected to examination.
The Court has recently experienced a sea change
in how it looks at perjured testimony claims. In Ex
parte Chabot, 300 S.W.3d 768 (Tex. Crim. App.
2009), the Applicant was convicted of murder and
recent DNA tests revealed that a co-defendant and star
witness for the State, Gerald Pabst, lied at trial. He in
fact raped the complainant before she was murdered,
and the Applicant was excluded as a contributor. The
State and the trial court agreed that the Court should
grant relief based on its holding in Ex parte Carmona,
185 S.W.3d 492 (Tex. Crim. App. 2006). However, the
Court felt the record was insufficient and remanded for
further findings on the Brady issue raised in the
application. After remand, the trial court recommended
that the Court grant relief based on Brady. The Court
granted relief and held that the knowing use of perjured
testimony is a trial error that is subject to a harmless
error analysis. Under the applicable standard, the
'applicant has the burden to prove by a preponderance
of the evidence that the error contributed to his
conviction or punishment. The Court also held that,
although the present case involves unknowing, rather
than knowing, use of perjured testimony, it saw no
reason for subjecting the two types of errors to
different standards of harm. The Court agreed with the

12
trial court that the circumstances of the present case
merited a Iinding that Applicant`s due process rights
were violated, notwithstanding the absence of the
State`s knowledge oI the perjured testimony at the time
of trial. The Court also agreed that it was more likely
than not that Pabsts perfured testimonv contributed to
the Applicants conviction and punishment. This sets a
much lower threshold for relief than was previously
required.
It is also important to remember that there are
some double jeopardy concerns when prosecutorial
misconduct has occurred. The Court has held that
double jeopardy bars retrial after a defendant has
successfully moved for mistrial only when it is shown
that the prosecutor engaged in conduct that was
intended to provoke the defendant into moving for a
mistrial. Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim.
App. 2007).
11

F. (Some) Jury Charge Error
An error in the jury charge is cognizable on
habeas, and the test is whether the ailing instruction so
infected the entire trial that the resulting conviction
violates due process. Ex parte Coleman, 599 S.W.2d
305 (Tex. Crim. App. 1978). In order to prevail, an
applicant must allege that a given error in the charge so
infected the trial that he was denied an impartial trial,
and the burden to prove such a denial is heavy. Ex
parte Maldonado, 688 S.W.2d 114 (Tex. Crim. App.
1985). In an apparent reversal, the Court subsequently
held that claims concerning a trial court`s charge to the
jury during the punishment stage of trial should have
been raised on direct appeal, and would not be
considered on an application for habeas corpus relief.
Ex parte Ramos, 977 S.W.2d 616 (Tex. Crim. App.
1998).
However, despite the Court`s decision in Ramos,
it still appears that habeas relief can be obtained as a
result of jury charge error. The Court recently held
that when jury charge error, in the context of an art.
11.071 application concerning error in a nullification
charge, is raised for the first time on habeas, it is
reviewed under the egregious harm standard set forth
in Almanza v. State.
12
Ex parte Smith, 185 S.W.3d 455
(Tex. Crim. App. 2006). This holding was
subsequently reversed by the U.S Supreme Court in
Smith v. Texas, 127 S.Ct. 1686 (2007). The Supreme
Court held that once a habeas petitioner establishes the
existence of instructional error that was preserved by a
proper objection, he need only show that he suffered
some harm from that error. In other words, relief

11
Overruling Ex parte Peterson, 117 S.W.3d 804 (Tex.
Crim. App. 2003).
12
686 S.W.2d 157 (Tex. Crim. App. 1984).
should be granted so long as the error was not
harmless. It is unclear whether this holding would
apply to non-capital writs under art. 11.07.

G. Actual Innocence Based on Newly Discovered
Evidence
Federal due process is violated when an innocent
person is incarcerated, and the Court has held that this
applies whether the defendant has pled guilty or not
guilty. In Ex parte Tuley, 109 S.W.3d 388 (Tex. Crim.
App. 2002), the Court extended the availability of
actual innocence claims to guilty plea situations. This
opinion expanded the Court`s actual innocence
jurisprudence as set out in Ex parte Elizondo, 947
S.W.2d 202 (Tex. Crim. App. 1996).
The Court also held in Tuley:

A bare innocence claim raises a
constitutional challenge to the conviction;
To be granted relief on a bare innocence
claim, the applicant must show that the new
evidence unquestionably establishes his
innocence;
The burden is on the habeas applicant
claiming actual innocence to show that no
reasonable juror could have found him guilty
in light of the new evidence because it is
presumed that the conviction is valid.

In cases involving a recantation by a complainant or a
witness, counsel should request a live hearing because
credibility is always a key issue. The importance of a
trial court`s Iinding on credibility is amply
demonstrated by the Court`s brieI opinion granting
relief in Ex parte Harmon, 116 S.W.3d 778 (Tex.
Crim. App. 2002). In Harmon, the applicant alleged
that he was actually innocent, as demonstrated by the
complainant`s aIIidavit in which she stated that her
trial testimony was false, it was prompted by her
natural Iather`s sister, and that applicant never sexually
assaulted her. The trial court conducted a hearing and
entered Iindings oI Iact that the complainant`s
recantation was credible and recommended that relief
be granted.
Another example of the importance of
establishing a good record in actual innocence claims
is found in Ex parte Calderon, __S.W.3d__, 2010 WL
1687797 (Tex. Crim. App. 2010). In Calderon, the
Court ordered the application be filed and set for
submission to determine whether the Applicant had
established that he was actually innocent and whether
the State violated Brady. The Court held that, based on
the facts in the record, the Applicant was actually
innocent based upon evidence (a recantation affidavit
from the complainant and testimony from the habeas
evidentiary hearing) that was 'newly discovered and

13
'newly available. See Ex parte Brown, 205 S.W.3d
538, 545 (Tex. Crim. App. 2006).
The Court has also extended the availability of
actual innocence claims to sex offender registration. In
Ex parte Harbin, 297 S.W.3d 283 (Tex. Crim. App.
2009), the Applicant filed an application for a writ of
habeas corpus claiming that he did not have a duty to
register as a sex offender for the offenses listed in the
indictment and thus he was actually innocent. The
Court held that, because neither of the offenses listed
were eligible for consideration as reportable offenses,
Applicant did not have a duty to register for the
offenses listed in the indictment.

H. Some Other Constitutional Claims Which May
Be Raised

- Claims involving an illegal sentence. The
Court of Criminal Appeals has held that an
applicant may raise claims involving an
illegal sentence on habeas corpus. Ex parte
Rich, 194 S.W.3d 508 (Tex. Crim. App.
2006).
- Claims involving a violation of Double
Jeopardy. The Court of Criminal Appeals
has held that claims involving the U.S.
Constitution`s prohibition against Double
Jeopardy are cognizable on habeas. Ex parte
Cavazos, 203 S.W.3d 333 (Tex. Crim. App.
2006); Ex parte Diaz, 959 S.W.2d 213 (Tex.
Crim. App. 1998). The Court has also
granted relief after it held that an applicant
could not be twice convicted for the same
delivery of a controlled substance. Ex parte
Knipp, 236 S.W.3d 214 (Tex. Crim. App.
2007).
- Violations of Due Process. In Ex parte
Carmona, 185 S.W.3d 492 (Tex. Crim. App.
2006), the applicant was adjudicated guilty of
sexual assault based entirely upon perjured
testimony. He filed a petition for habeas
relief, claiming his release to deferred
adjudication was revoked without due
process of law. The witnesses against the
applicant either recanted their testimony, or
their bias and lies had been exposed. Further,
the evidence of physical abuse, consisting of
photos oI the victim`s bruised and bloodied
face, was proven to be the result of a medical
procedure rather than an attack by the
applicant. The Court found that due process
had been violated because the applicant`s
release had been revoked solely on the basis
of perjured testimony. The Court also held
that the prohibition on direct appeals set out
in art. 42.12, 5(b) of the Code of Criminal
Procedure was not a bar to habeas relief.
- Federal constitutional claims which were
not available at the time of trial or di rect
appeal. Ordinarily, the writ of habeas corpus
may not be used to litigate matters that could
have been raised at trial and on direct appeal.
However, an applicant`s Iailure to raise a
fundamental due process claim at trial may
be excused if the basis of the claim was not
reasonably available at the time of trial. Ex
parte Boyd, 58 S.W.3d 134 (Tex. Crim. App.
2001).
13
This holding will not exempt all
constitutional claims. For example, in the
context of Confrontation Clause claims, the
Court held the Supreme Court`s decision in
Crawford v. Washington, 541 U.S. 36 (2004),
was not retroactive and habeas relief was not
available. Ex parte Lave, 257 S.W.3d 235
(Tex. Crim. App. 2008). Therefore, if this is
an applicant`s initial writ, relief should be
denied. Also, the Court`s holding in Boyd
will not be applicable when the error
involves a claim which is neither a systemic
requirement nor a waivable right such as a
claim that an indictment was defective. Ex
parte Sanchez, 120 S.W.3d 359 (Tex. Crim.
App. 2003).

I. Post-Conviction Time Credit
This is an incredibly arcane area of habeas
jurisprudence which is a subject unto itself. However,
here are some common issues you must keep in mind
when dealing in this area:

Did the Applicant exhaust his
administrative remedies? In time credit
cases, an applicant must first attempt to have
the matter resolved through the time credit
resolution system in the Texas Department of
Criminal Justice. See TEX. GOV`T CODE
501.0081.
14
Both the Correctional

13
In Boyd, the Court held that the hate crimes statutes
violated due process by removing a factual determination
from the jury, and the failure to assert the claim at trial did
not bar relief.
14
The exceptions to the exhaustion requirement under the
statute are, at the time of filing with the district clerk:
1. The applicant is on parole or mandatory supervision. Ex
parte Russell, 60 S.W.3d 875 (Tex. Crim. App. 2001).
2. The Applicant has not received a written response to his
claim by the time office within 180 days;

14
Institutions Division and the State Jail
Division have their own time credit
resolution systems;
An applicant is sent to an I ntermediate
Sanctions Facility as a condition of being
returned to parole. If the warrant is not
withdrawn while the parolee is a guest at the
ISF, he is entitled to the time credit. Ex parte
Price, 922 S.W.2d 957 (Tex. Crim. App.
1996), and Ex parte Canada, 754 S.W.2d
660 (Tex. Crim. App. 1988). However, if the
warrant has been withdrawn, a parolee is not
entitled to credit for the time that he was
confined in an ISF as a special condition of
his parole. Ex parte Adams, 941 S.W.2d 136
(Tex. Crim. App. 1997);
After a parole revocation, an applicant is
claiming that he is entitled to time credit
for periods he spent on the street while on
release to parole. Section 508.283 of the
Government Code states that when a
person`s parole, mandatory supervision, or
conditional parole is revoked, that person
may be required to serve the portion
remaining of the sentence on which he was
released, such portion remaining to be
calculated without credit from the time from
the date of release to the date of revocation.
However, changes were added, effective
September 1, 2001, to enable certain classes
of offenders to obtain some street time credit
after revocation. For an applicant to be
eligible he must not be an offender described
by Government Code 508.149 (a), which
defines offenders who are mandatory
supervision ineligible, and he would have
had to serve more time under mandatory
supervision, or parole, than the amount of
time left on his sentence at the time a parole
revocation arrest warrant was issued. Ex
parte Spann, 132 S.W.3d 390 (Tex. Crim.
App. 2004). An inmate`s eligibility Ior street
time credit under 508.283(c), is controlled
by the version of 508.149(a) in effect at the
time of his revocation. Ex parte Noyola, 215
S.W. 3d 862 (Tex. Crim. App. 2007).

3. The Applicant is within 180 days of his presumptive
parole date, date of release on mandatory supervision, or
date of discharge.
It should be noted that it is not an exception to the filing
requirement if an applicant is in a county jail. The Court has
held that an individual in this situation is an 'inmate Ior
purposes of 501.0081. Ex parte Dunlap, 166 S.W.3d 268
The Court has held that a person is not entitled to
'street time on his original sentence under
508.283(c) if, after release but before revocation, he
begins to serve a sentence on a new conviction for an
offense that is described by 508.149(a). Ex parte
Hernandez, 275 S.W.3d 895 (Tex. Crim. App. 2009).
The Court reasoned that a releasee is either a person
described by 508.149(a) at the time of revocation or
he is not. ThereIore, the applicant`s status at the time
of revocation determines whether he gets the time
credit.
15

- The Applicant is requesting time credit for
a period he spent out-of-custody after an
er roneous release. An individual is entitled
to time credit toward the expiration or
discharge of a sentence when the individual,
through no fault of his or her own, was
erroneously released from custody by the
State, unless he violates a condition of his
parole.
16
Ex parte Baker, 297 S.W.3d 256
(Tex. Crim. App. 2009); Ex parte Rowe, 277
S.W.3d 18 (Tex. Crim. App. 2009); Ex parte
Hale, 117 S.W.3d 866 (Tex. Crim. App.
2003).
- The applicant is complaining that TDCJ is
not properly calculating the time credit
relating to his cumulated (stacked)
sentences. When addressing these claims,
here are some of the seminal cases you
should consult:
Ex parte Forward, 258 S.W.3d 151 (Tex.
Crim. App. 2008). The Court held that the
mandatory supervision release date for a
defendant who received consecutive
sentences of eight years for aggravated
robbery, for which he was eligible for
mandatory supervision, and ten years for
possession of a firearm by a felon that was
committed while on release to mandatory
supervision for the aggravated robbery, for
which offense the defendant was inelgible for
mandatory supervision, was correctly
determined by initially calculating the
mandatory supervision date on the

15
This Iurther clariIied the Court`s opinion granting relieI in
Ex parte Johnson, 273 S.W.3d 340 (Tex. Crim. App. 2008).
In Johnson, the Court held that the applicant was not, at the
time of revocation, serving a sentence for a new offense
which would make him mandatory supervision ineligible.
Therefore, he was not precluded from receiving street time
credit.
16
This would include TDCJ`s Correctional Institutions
Division, and State Jail Division.

15
aggravated robbery offense and then adding a
full ten year sentence for the firearm offense.
Ex parte Cowan, 171 S.W.3d 890 (Tex.
Crim. App. 2005). The Court held that
applicant`s Iirst sentence ceased to operate,
thus triggering commencement of the second
sentence, when it was served out in full day-
for-day or on the date the parole panel
designated the applicant would have been
eligible for release on parole if the applicant
had been sentenced to serve a single
sentence.
Ex parte Kuester, 21 S.W.3d 264, 271 (Tex.
Crim. App. 2000). In Kuester, the Court said:
'Considering the consequences oI varying
constructions, the legislative history, the
meaning oI completion oI the sentence` in
other statutes, the meaning oI cease to
operate` in Art. 42.08(a), the language oI Art.
42.08(b), and its placement in the Code, we
conclude that the phrase completion oI the
sentence` means serving the sentence in full,
day-for-day, until discharge, or receiving a
vote of approval for parole by a parole panel.
Granted, this results in completion oI the
sentence` having the same meaning as cease
to operate.` But we are persuaded that the use
of different phrases in subsections (a) and (b)
of Art. 42.08 is insignificant compared to the
other considerations in this opinion. So a
sentence is completed,` Ior purposes oI Art.
42.08(b), when it is served out in full day-
for-day, or when a parole panel approves the
inmate Ior parole release.
Ex parte Ruthart, 980 S.W.2d 469 (Tex.
Crim. App. 1998). The Court held that
eligibility for mandatory supervision does not
cause a sentence to cease to operate, and any
eligibility for release to mandatory
supervision 'becomes available |to| such
inmates only when they begin serving their
Iinal consecutive sentence. Ruthart, 980 at
474.

J. Pre-Sentence Jail Time Credit
A sea change in how pre-sentence jail time credit
is handled resulted from the Court of Criminal Appeals
decision in Ex parte Ybarra, 149 S.W.3d. 147 (Tex.
Crim. App. 2004). In Ybarra, the Court held that
habeas corpus, which had previously been the vehicle
for obtaining relief, was not the appropriate remedy for
a trial court`s alleged Iailure to grant pre-sentence jail
time credit. The trial court is required to grant a
defendant pre-sentence jail time credit when the
sentence is pronounced under Article 42.03 2(a) of
the Code of Criminal Procedure. Given this fact, the
Court further held that the appropriate remedy in this
situation is to require an applicant to present the issue
to the trial court by way of a nunc pro tunc motion. If
the trial court fails to respond, the applicant is first
required to seek relief in the courts of appeals, by way
of a writ of mandamus, unless there is a compelling
reason not to do so. If the court of appeals denies the
applicant`s mandamus application, relieI may be
sought by filing an application for writ of mandamus
with the Court. Ex parte Florence, __S.W.3d__, 2010
WL 1979432 (Tex. Crim. App. 2010). Bear in mind
that this does not take the Court completely out of the
pre-sentence jail time credit business, and it does not
put all of the onus on the intermediate appellate courts.
In footnote two oI the opinion, the Court states that 'II
Applicant has been incarcerated past his presumptive
discharge date, this is no longer a time credit claim but
an illegal conIinement claim.
Here are some pre-trial jail time credit cases
which you may find helpful:

Ex parte Stover, 946 S.W.2d 343 (Tex. Crim.
App. 1997). The Court held that an applicant
is not entitled to time credit for periods spent
in a drug treatment program as a condition of
probation. However, Stover does not apply
to offenses which occur on or after 9/1/07.
The legislature has subsequently amended
art. 42.12, 23(b) of the Code of Criminal
Procedure to require trial courts to grant
credit for periods spent in a SAFPF, or other
court-ordered residential program, as a
condition of probation if the program has
been successfully completed.
Ex parte Quimby, 928 S.W.2d 565 (Tex.
Crim. App. 1996). The Court held that an
applicant is entitled to time credit for
confinement in a state jail facility as a
condition of probation.
Ex parte Bates, 978 S.W.2d 575 (Tex. Crim.
App. 1998). (First point of Bates): The
Court held that, in sentencing a defendant to
a state jail felony facility following
revocation of his probation, the trial court
was not required to give him credit for time
he was confined between his initial arrest and
placement on probation where he was 1)
sentenced less than the maximum of two
years, and 2) he would not have been
required to serve more than the maximum
possible term even if the pre-trial credit were
added. In situations where the applicant
would be required to serve more than the
maximum if the pre-trial credit were added,
the applicant would need to show that, in
addition to receiving a two year sentence, he

16
was indigent and unable to make bond. Ex
parte Harris, 946 S.W.2d 79 (Tex. Crim.
App. 1997).
Ex parte Bates, 978 S.W.2d 575 (Tex. Crim.
App. 1998). (Second point of Bates): The
Court also held that, when sentenced to a
state jail facility following revocation of
probation, an applicant was entitled to credit
for time he was confined pending the motion
to revoke his community supervision.
- Applicants are still requi red to exhaust
thei r administrative remedies. The
requirement that an applicant must first
attempt to have the matter resolved through
the time credit resolution system in the Texas
Department of Criminal Justice, also applies
in these situations. See TEX. GOV`T CODE
508.0081. As mentioned previously, both the
Correctional Institutions Division and the
State Jail Division have their own time credit
resolution systems.
- Where do I obtain the information I need
to resolve factual matters regarding time
credit claims prior to filing an application
with the dist rict cler k in the county where
the conviction was obtained? In situations
regarding post-conviction time credit claims,
the State Classification Committee at the
Texas Department of Criminal Justice, and
the Texas Department oI Criminal Justice`s,
Parole Division should have all the records
you need in order to complete your
investigation. You may also wish to obtain
this information directly through the Office
of the General Counsel at the Texas
Department of Criminal Justice. Here is the
current contact information at these agencies:

Office of the Director
TDCJ Parole Division, Review and
Release Processing
8712 Shoal Creek Blvd., Suite 100
Austin, Texas 78759

and;

Chariman, State Classifications
Committee
TDCJ Correctional Institutions Division
P.O. Box 99
Hunstville, Texas 77342-0099

and;

Office of the General Counsel
Texas Department of Criminal Justice
209 W. 14
th
Street, Ste. 500
Austin, Texas 78711

In cases where an applicant is requesting pre-
sentence jail time credit, the necessary
records may usually be obtained from the
county sheriII`s oIIice where the inmate
claims to have been incarcerated.

K. Parole Matters
The writ section at the Court also handles
constitutional claims regarding alleged errors in the
parole process.

- An applicant`s parole was improperly
revoked. The Court has held that a claim of
denial of due process in the revocation of
parole may be raised on habeas corpus. See
Ex parte Taylor, 957 S.W.2d 43 (Tex. Crim.
App. 1997), citing Ex parte Woodward, 619
S.W.2d 179 (Tex. Crim. App. 1981). This
decision is grounded in the US Supreme
Court`s decision in Morrissey v. Brewer, 408
U.S. 471 (1972). In Morrissey, the Supreme
Court held that a parolee who has allegedly
violated a condition of his parole is entitled
to due process before a decision to revoke
that parole may validly be made. The
Morrissey holding required the following in
order to meet due process:

A. Written notice of the claimed violations
of parole;
B. Disclosure to the parolee of the evidence
against him;
C. The opportunity to be heard in person
and to present witnesses and
documentary evidence;

D. The right to confront and cross-examine
adverse witnesses, unless the hearing
officer specifically finds good cause for
not allowing confrontation (danger to
the witness, etc.);
E. A 'neutral and detached hearing body
such as a traditional parole board,
members of which need not be judicial
officers or lawyers; and;
F. A written statement by the fact finders
as to the evidence relied on and reasons
for revoking parole.

While a parolee is entitled to notice and a
hearing, he is not absolutely entitled to
appointed counsel at a revocation hearing,

17
and 'that the decision as to the need Ior
counsel must be made on a case-by-case
basis in the exercise of a sound discretion by
the state authority charged with responsibility
for administering the probation and parole
system. Gagnon v. Scarpelli, 411 U.S. 778
(1973).

- A preliminary revocation hearing must be
held within a ~reasonable time. Even if a
parolee has new charges pending, he is still
entitled, under 508.2811 of the
Government Code, to a preliminary hearing
within a reasonable time to determine
whether probable cause or reasonable
grounds exist which show that he violated the
conditions of his parole. Ex parte Cordova,
235 S.W.3d 735 (Tex. Crim. App. 2007). The
Court also held in Cordova, that due process
requires that a preliminary hearing be held as
promptly as convenient after a parolee has
been arrested to determine whether there is
probable cause or reasonable grounds to
believe that the arrested parolee has
committed acts that would constitute a
violation of parole conditions. However, the
Court also stated that, when a parolee has
been indicted for a new offense, the 41 day
deadline for giving the parolee his final
parole revocation hearing pursuant to
Government Code 508.282(a)(1)(A) does
not apply.
- An applicant is being improperly denied
release to parole or mandatory
supervision. While the release of a prisoner
to parole is discretionary on the part of the
reviewing body, release to mandatory
supervision can be either mandatory, or
discretionary.
17
Prior to September 1, 1996,
inmates eligible for mandatory supervision
were entitled to release to mandatory
supervision when their calendar time in
prison, plus their accrued good conduct time,
equaled 100% of their sentence. For offenses
committed between August 29, 1977 and
August 31, 1987, all crimes were eligible for
mandatory supervision except for convictions
where the sentence was for life, or where the
offender received the death penalty. For
offenses committed on September 1, 1987,
onward, only limited offenses were eligible

17
See Ex parte Geiken, 28 S.W.3d 553, 558 (Tex. Crim.
App. 2000) (noting that while the parole system in Texas
creates no presumption of release on parole, the mandatory
supervision release statute does).
for release to mandatory supervision. See the
former Article 42.18, 8 (c), of the Code of
Criminal Procedure, now Government Code
508.149(a). For offenses committed on or
after September 1, 1996, all mandatory
supervision candidates became subject to a
discretionary release pursuant to Government
Code 508.149(b). A life sentence will
always render an inmate mandatory
supervision ineligible. Ex parte Franks, 71
S.W.3d 327 (Tex. Crim. App. 2001).
The Court has held that inmates have
certain due process rights when they are
being reviewed for release. In Ex parte
Retzlaff, 135 S.W.3d 45 (Tex. Crim. App.
2004), the Court held that in the normal case,
an inmate is entitled to notice of the specific
month and year in which he will be reviewed
for release to mandatory supervision. The
Court also held that the inmate must be given
at least thirty days` advance notice that he
will be reviewed in the specified month so
that he has a sufficient opportunity to submit
materials on his behalf. And the reviewing
body can`t 'jump the gun, and hold the
hearing on a date earlier than the one which
was provided to the inmate. Ex parte Shook,
59 S.W.3d 174 (Tex. Crim. App. 2001).
Government Code 508.149(a), states
that a person is ineligible for release to
mandatory supervision if he is serving a
sentence Ior, or 'has been previously
convicted oI, one oI the enumerated
offenses listed in the statute. When
interpreting whether a past offense, which is
not now specifically listed in 508.149(a),
would render an offender ineligible for
release, the Court will give effect to the
collective intent or purpose of the
Legislature. In Ex parte Ervin, 187 S.W.3d
386 (Tex. Crim. App. 2005), the Court held
that an applicant`s previous conviction Ior
sexual abuse of a child, though not
specifically listed under 508.149(a),
rendered him ineligible for release. In a case
which resulted in relief for the applicant, the
Court held that an applicant`s Iirst degree
burglary conviction which, at first blush,
appeared to be an enumerated offense was
not an offense covered by 508.149(a). Ex
parte Mabry, 197 S.W.3d 58 (Tex. Crim.
App. 2004).

- Ex post facto claims. Applicants often raise
ex post facto claims based on the fact the
parole laws have changed and that under the

18
old laws they would have been either
considered for release or released. While
these claims are generally without merit due
to the discretionary nature of parole, they are
cognizable claims and may result in relief
being granted. The fact that an inmate has no
liberty interest in being released to parole
does not mean that he has no basis for his
claim. Garner v. Jones, 529 U.S. 244, 253
(2000)('The presence oI discretion does not
displace the protections of the Ex Post Facto
Clause....); Weaver v. Graham, 450 U.S. 24,
30 (1981)('The presence or absence oI an
affirmative, enforceable right is not relevant,
however, to the ex post facto prohibition,
which forbids the imposition of punishment
more severe than the punishment assigned by
law when the act to be punished occurred).
- Claims regarding sex offender registration
requi rements. An applicant will have an
uphill battle obtaining relief where he thinks
sex offender registration requirements have
been improperly imposed. The Court has
held that a parole panel was authorized, in
granting early release on a conviction for
burglary of a building by an habitual
offender, to impose sex offender conditions
in general, and a child safety zone condition
in particular, on an applicant who did not
have a 'reportable conviction under the sex
offender registration statute, but he had a
prior misdemeanor conviction for indecent
exposure. Ex parte Campbell, 267 S.W.3d
916 (Tex. Crim. App. 2008). The Court has
also held that, in determining whether a
person must register as a sex offender,
revocation of mandatory supervision for
sentences that were stacked under the old
scheme
18
places the releasee in the same
position he was in when he was released.
Because Applicant`s sentence had not yet
discharged when he was released, it remained
undischarged when his mandatory
supervision was revoked. He was, therefore,
in custody on the sexualassault offense on
the effective date of the statute requiring sex-

18
The scheme for stacking sentences that was in effect prior
to September 1, 1987. Before that date, consecutive
sentences were added together and treated as one sentence
for the purpose of determining eligibility for release on
parole and mandatory supervision and for the purpose of
determining an inmate`s Iinal discharge date. This remains
the rule so long as one of the sentences in the series began
before September 1, 1987.
offender registration. Ex parte Arce, 297
S.W.3d 279 (Tex. Crim. App. 2009).
- Where do I obtain the information I need
to resolve factual matters regarding parole
claims prior to forwarding the application
to the Court of Criminal Appeals? The
Texas Department oI Criminal Justice`s
Parole Division will usually have all the
records you need in order to complete an
investigation regarding an applicant`s parole
claim. You may also wish to obtain this
information directly through the Office of the
General Counsel at the Texas Department of
Criminal Justice. Once again, here is the
current contact information for these
agencies:

Office of the Director
TDCJ Parole Division, Review and
Release Processing
8712 Shoal Creek Blvd. Suite 100
Austin, Texas 78757

and;

Texas Department of Criminal Justice
209 W. 14
th
Street, Ste. 500
Austin, Texas 78711

L. Forfeiture Provisions

- Don`t punish the applicant. Be careful of
raising claims which may be found to be
frivolous. The provisions of Govt Code
498.0045, allow for the forfeiture of good
time credit if an order is entered by the Court
dismissing a habeas application as frivolous.
19

19
Section 498.0045 states:
(a) In this section, 'Iinal order means a certiIied copy oI a
final order of a state or federal court that dismisses as
frivolous or malicious a lawsuit, including a proceeding
arising from an application for writ of habeas corpus,
brought by an inmate while the inmate was in the custody of
the department or confined in county jail awaiting transfer to
the department following conviction of a felony or
revocation of community supervision, parole, or mandatory
supervision.
(a-1) For purposes of this chapter, an application for writ of
habeas corpus is considered 'Irivolous iI brought Ior the
purpose of abusing judicial resources.
(b) On receipt of a final order, the department shall forfeit:

19
If the trial court believes that an applicant has
abused the habeas process, it may include as
part of its findings of fact that the application
was frivolous or malicious and recommend
that the Court dismiss the application with a
written order.

VI. ORIGINAL HABEAS APPLICATIONS
Article 1, Section 12 of the Texas Constitution
states that, 'The Writ oI habeas corpus is a writ oI
right, and shall never be suspended. The Legislature
shall enact laws to render the remedy speedy and
eIIectual. The authority oI the Court to grant and issue
original writs of habeas corpus is set out in the Texas
Constitution Article 5, subsection (c).
20
This authority
is also set out in art. 4.04(1) of the Code of Criminal
Procedure.
21
One of the claims where original habeas
lies is in issues of contempt of Court. There is no
remedy or right of appeal from an order of contempt.
Ex parte Rose, 704 S.W.2d 751 (Tex. Crim. App.
1984). Thus, there can be no valid appeal bond in such
situations. Therefore, the proper course of review from
a contempt order entered in a district court is by an

(1) 60 days oI an inmate`s accrued good conduct time, iI the
department has previously received on final order;
(2) 120 days oI an inmate`s accrued good conduct time, iI
the department has previously received two final orders; or;
(3) 180 days oI an inmate`s accrued good conduct time, iI
the department has previously received three or more final
orders.
(c) The department may not restore good conduct time
forfeited under this section.
20
This article states the following:
Subject to such regulations as may be prescribed by law, the
Court of Criminal Appeals and the Judges thereof shall have
the power to issue the writ of habeas corpus, and, in criminal
matters, the writs of mandamus, procedendo, prohibition,
and certiorari. The Court and the Judges thereof shall have
the power to issue such other writs as may be necessary to
protect its jurisdiction and enforce its judgments. The court
shall have the power upon affidavit or otherwise to ascertain
such matters of fact as may be necessary to the exercise of
its jurisdiction. (Amended Aug. 11, 1891, Nov. 8, 1966,
Nov. 8, 1977, Nov. 4, 1980, and Nov. 6, 2001.)
21
This section of the article states:
The Court of Criminal Appeals and each judge thereof shall
have, and is hereby given, the power and authority to grant
and issue and cause the issuance of writ of habeas corpus,
and, in criminal law matters, the writs of mandamus,
procedendo, prohibition, and certiorari. The court and each
judge thereof shall have, and is hereby given, the power and
authority to grant and issue and cause the issuance of such
other writs as may be necessary to protect its jurisdiction or
enforce its judgments.
original application for writ habeas corpus filed with
the Court. Ex parte Eureste, 725 S.W.2d 214 (Tex.
Crim. App. 1986). For example, in Ex parte Thompson,
273 S.W.3d 177 (Tex. Crim. App. 2008), the Court
held that where a witness indicates outside the jury`s
presence that he will not answer any questions and
afterwards consistently maintains that position before
the jury by refusing to answer any questions (except
for introducing himself), as a matter of due process,
only one contempt occurs. The prosecution cannot
make the witness liable for multiple contempts by
putting the witness on the stand and getting him to
refuse to answer multiple questions after the witness
has previously indicated he will not testify. Due
process allows only one conviction for contempt.

VII. ORIGINAL MANDAMUS APPLICATIONS
The authority of the Court to grant and issue
original writs of mandamus is set out in the Texas
Constitution Article 5, subsection c. This authority is
also set out in art. 4.04(1) of the Code of Criminal
Procedure. Mandamus is a writ which issues from the
Court, and is directed to an executive, administrative or
judicial officer, or to an inferior court, commanding the
performance of a particular act specified within the
writ.
Mandamus relief is available only when the
relator can establish two things: first, that no other
adequate remedy at law is available; and second, that
the act he seeks to compel is ministerial. Braxton v.
Dunn, 803 S.W.2d 318, 320 (Tex.Crim.App. 1991). An
act is ministerial "when the law clearly spells out the
duty to be performed . . . with such certainty that
nothing is left to the exercise of discretion or
judgment." Texas Dept. of Corrections v. Dalehite, 623
S.W.2d 420, 424 (Tex.Crim.App. 1981). Most
mandamus applications filed with the Court involve
requests that the Court order a district clerk to comply
with the time requirements for forwarding an art. 11.07
writ of habeas corpus. This requirement is only waived
by the issuance of a timely order designating issues. In
Martin v. Hamlin, 25 S.W.3d 718 (Tex. Crim. App.
2000), the Court held that, without a timely entry of an
order designating issues, art. 11.07 imposes a duty
upon the clerk of the trial court to immediately transmit
to the Court the record from an application for writ of
habeas corpus, deeming the trial court`s inaction a
finding that no issues of fact required further
resolution. The Court has handed down two published
opinions reminding district clerks of the holding in
Hamlin, and reiterating the fact that if an ODI is not
entered within the allotted period of time, the district
clerk is required to forward the application. Gibson v.
Dallas County District Clerk, 275 S.W.3d 491 (Tex.
Crim. App. 2009); Dejean v. Dallas County District
Clerk, 259 S.W.3d 183 (Tex. Crim. App. 2008). Within

20
the last year, the Court has again reminded a clerk`s
oIIice oI the importance oI complying with the Court`s
mandamus orders. In re Escareno, 297 S.W.3d 288
(Tex. Crim. App. 2009). In Escareno, the Relator`s
mandamus application was rendered moot because the
Relator received the requested relief when the habeas
application reached the Court. However, because the
clerk failed to communicate with the Court despite
receiving successive orders and an inquiry letter, the
clerk was held in contempt and fined $ 500.
You should also consider whether the
intermediate appellate court is the best place to file
your application. In Padilla v. McDaniel, 122 S.W.3d
805 (Tex. Crim. App. 2003), the Court held that when
an intermediate appellate court and this Court have
concurrent, original jurisdiction over an application for
a writ of mandamus against the judge of a district or
county court, the application must first be presented to
the court of appeals unless there is a compelling reason
not to do so. In Padilla, the relator requested that this
Court order the trial court to appoint counsel for him
on his motion for forensic DNA testing pursuant to
Chapter 64 of the Code of Criminal Procedure.
Because mandamus relief could be obtained from the
intermediate appellate court (the court of first resort),
relief was denied.
The Court has also held that an order providing
for the withdrawal of inmate funds for the payment of
court costs was not a criminal law matter, and in such
cases the Court lacked original mandamus jurisdiction.
In re Matt Johnson v. The Tenth Judicial District Court
of Appeals, 280 S.W.3d 866 (Tex. Crim. App. 2008).

VIII. ORIGINAL PROHIBITION
APPLICATIONS
original writs of prohibition is set out in the Texas
Procedure. A writ of prohibition is, by definition, the
counterpart of an original application for a writ of
mandamus. Prohibition is the process by which the
Court prevents an inferior court from exceeding its
jurisdiction in matters over which it has cognizance, or
usurping matters not within its jurisdiction to hear or
determine. The Court receives very, very few original
applications for a writ of prohibition. But it is
important to remember that it is an available avenue for
relief.

IX. ORIGINAL PETITIONS FOR WRITS OF
CERTIORARI
original writs of certiorari is set out in the Texas
Procedure. An original petition for a writ of certiorari
is another available avenue for relief at the Court. The
writ is issued in order that the Court may inspect the
proceedings of a lower court and determine whether
any irregularities occurred during a proceeding. But its
usefulness is very limited. The Court has held that a
writ of certiorari shall not issue in any case in which
there is a right to appeal. Ex parte Brand, 822 S.W.2d
636 (Tex. Crim. App. 1992).

X. ORIGINAL PROCEDENDO
APPLICATIONS
original writs of procedendo is set out in the Texas
Procedure. At common law procedendo is an action
wherein a court of superior jurisdiction orders a court
of inferior jurisdiction to proceed to judgment but the
order has no bearing on the nature of the judgment to
be entered. This writ is of little usefulness to the
practitioner and, outside of some of the more creative
pro se filings, it is rarely, if ever, filed with the Court.

XI. MOTIONS

- Motions to Reconsider. The Texas Rules of
Appellate Procedure has two pertinent
sections relating to motions to reconsider:

A. Rule 79.2 (d), pertains to writs filed pursuant to art.
11.07, or art. 11.071, of the Code of Criminal
Procedure. This rule states:

A. motion for rehearing an order that denies
habeas corpus relief under Code of Criminal
Procedure, articles 11.07 or 11.071, may not
be filed. The Court may on its own initiative
reconsider the case.
B. Rule 72.2, pertains to extraordinary matters
such as mandamus petitions, original habeas
petitions, etc. This rule states, in pertinent
part:

If the motion for leave to file is denied, no motions for
rehearing or reconsideration will be entertained. But
the Court may, on its own initiative, reconsider a denial
of a motion for leave.
The TRAP rules make it clear that motions for
rehearing or reconsideration after a denial of relief are
not allowed and will not be entertained. However, the
TRAP rules do provide the Court the authority to
reconsider its rulings denying relief sua sponte.
Therefore, if you are filing a motion with the Court,
please make sure to include 'on the Court`s own
motion, or similar language in the title.

21
XII. 2009-2010 PUBLISHED CASES OF
INTEREST FROM THE COURT OF
CRIMINAL APPEALS.

Ex parte Harbin, 297 S.W.3d 283 (Tex.
Crim. App. 2009). The Applicant filed an
application for a writ of habeas corpus
claiming that he did not have a duty to
register as a sex offender for the offenses
listed in the indictment and thus he was
actually innocent. The Court held that the
Applicant did not have a duty to register for
the offenses listed in the indictment.

This case raised two questions: (1) whether,
based upon the statute in place at the time of
Applicant`s Iailure to register, Applicant had
a reportable conviction and therefore a duty
to register and (2) whether, at the time of
Applicant`s oIIenses, the CaliIornia
misdemeanor oIIense oI 'annoy or molest a
child was substantially similar to a Texas
offense that would have required Applicant
to register as a sex offender in Texas.
The Court`s conclusion:

Applicant's California Penal Code
647.6 convictions are not eligible for
consideration as reportable offenses
under SORA (Sex Offender Registration
Act). Additionally, the savings clause
from the 1997 amendment to SORA
precluded any conviction prior to
September 1, 1995, from consideration
as a reportable conviction. Therefore,
neither Applicant's 1988 conviction for
lewd and lascivious act nor his 1994
conviction for annoying and molesting a
child created a duty to register as a sex
offender in Texas in 2000. Applicant
was not required to register for either of
the offenses listed in the indictment at
the time he was charged and convicted.
Relief is granted. Applicant's
convictions in 2000 for failure to
register as a sex offender are vacated.

Ex parte Smith, 296 S.W.3d 78 (Tex. Crim.
App. 2009). The Court denied relief on an
ineffective assistance of counsel claim and
declined to answer the question of whether a
person who is on deferred adjudication has
been 'convicted as that term is used in the
unlawful possession of a firearm statute.
Ex parte Miller, __ S.W.3d __, 2009 WL
3446468 (Tex. Crim. App. 2009). The Court
denied relief on an ineffective assistance of
trial counsel claim and granted relief on an
ineffective assistance of appellate counsel
claim.
The Applicant claimed that trial counsel
was ineIIective because (1) he 'Iailed to
object to the prosecutor informing the jury
that applicant was shackled during trial; and
(2) he 'Iailed to present testimony regarding
prior acts of violence committed by the
deceased and his companion. The trial court
held a live hearing and found that counsel
was not ineffective as to claim one (and there
was no prejudice in any event), but he was
ineffective as to claim two. The Court
disagreed with the trial court regarding claim
two and found that counsel was not
ineffective. It found that the trial court erred
in finding the evidence admissible under
Rule 404(a)(2) and that it was not probable
that the trial court might have allowed the
witness to be impeached with knowledge of
an 18 year old conviction. The Court also
posited further reasons in the opinion.
The Applicant claimed that appellate
counsel was ineIIective because he 'Iailed to
raise the issue that the evidence was
insufficient to prove that applicant`s 1976
burglary conviction was for an offense
committed after his 1972 possession of
heroin conviction became Iinal. Appellate
counsel died a year and a half before the
Applicant filed the writ. The Court granted
relief on this claim even though 'applicant`s
prior convictions really were sequential and
that the State really could prove them in a
second sentencing hearing.
Ex parte Broadway, 301 S.W.3d 694 (Tex.
Crim. App. 2009). The Court ordered this
application be filed and set for submission to
determine whether a defendant could
voluntarily waive his entire appeal as a part
of a plea, even when sentencing is not
agreed, where consideration is given by the
State for that waiver. The Court agreed with
the trial court that the Applicant voluntarily,
knowingly and intelligently waived his right
to appeal. The Court then held that a
defendant may knowingly and intelligently
waive his entire appeal as part of a plea, even
when sentencing is not agreed upon, where
consideration is given by the State for that
waiver.
Ex parte Chabot, 300 S.W.3d 768 (Tex.
Crim. App. 2009). In this case, the Applicant
was convicted of murder and recent DNA

22
tests revealed that a co-defendant and star
witness for the State, Gerald Pabst, lied at
trial. He in fact raped the complainant before
she was murdered, and the Applicant was
excluded as a contributor. The State and the
trial court agreed that the Court should grant
relief based on its holding in Ex parte
Carmona, 185 S.W.3d 492 (Tex. Crim. App.
2006). However, the Court felt the record
was insufficient and remanded for further
findings on the Brady issue raised in the
application. After remand, the trial court
recommended that the Court grant relief
based on Brady. The Court granted relief and
held that the knowing use of perjured
testimony is a trial error that is subject to a
harmless error analysis. Under the applicable
standard, the 'applicant has the burden to
prove by a preponderance of the evidence
that the error contributed to his conviction or
punishment. The Court also held that,
although the present case involves
unknowing, rather than knowing, use of
perjured testimony, it saw no reason for
subjecting the two types of errors to different
standards of harm. The Court agreed with the
trial court that the circumstances of the
present case merited a finding that
Applicant`s due process rights were violated,
notwithstanding the absence oI the State`s
knowledge of the perjured testimony at the
time of trial. The Court also agreed that it
was more likelv than not that Pabsts
perjured testimony contributed to the
Applicants conviction and punishment. This
sets a much lower threshold for relief than
was previously required.
Ex parte Lane, 303 S.W.3d 702 (Tex. Crim.
App. 2009). In Lane, counsel did not object
when the State argued at sentencing that the
amount oI methamphetamine in Applicant`s
possession would 'get 45,000 people high.
The Court granted relief and ordered a new
punishment hearing.
Ex parte Hiracheta, 307 S.W.3d 323 (Tex.
Crim. App. 2010). The Court ordered this
habeas application be filed and set to
determine how to handle situations where
there is one cause number and two different
writ sections involved (11.07 and 11.072).
The Court held the following:

A writ application under Article 11.07
of the Texas Code of Criminal
Procedure may only be used to
challenge a final conviction. Count one
of this cause number is final, but count
two is not. An applicant must file an
application for writ of habeas corpus
under Texas Code of Criminal
Procedure 11.072 in the trial court in
which community supervision was
imposed in order to attack a judgment of
conviction ordering community
supervision. We therefore deny relief on
the ground that attack the conviction for
count one and dismiss, without
prejudice, the grounds attacking the
conviction for count two.

Ex parte Calderon, __S.W.3d__, 2010 WL
ordered this application be filed and set for
submission to determine whether the
Applicant had established that he was
actually innocent and whether the State
violated Brady. The Court held that, based
on the facts in the record, the Applicant was
actually innocent based upon evidence (a
recantation affidavit from the complainant
and testimony from the habeas evidentiary
hearing) that was 'newly discovered and
'newly available. See Ex parte Brown, 205
S.W.3d 538, 545 (Tex. Crim. App. 2006).
The Court stated, in pertinent part:

On this record, we decide that Janie's
note and its contents were unknown to
applicant when he pled in July 2005 and
when his probation was revoked in May
2006. We adopt the convicting court's
findings that support this decision and
disregard those findings that do not
support this decision. See Ex parte Reed,
271 S.W.3d 698, 727-28 (Tex.Cr.App.
2008). In addition, we further note that,
under the specific facts of this case, it
seems highly unlikely that applicant and
the State would negotiate a plea with
knowledge of Janie's note and its
contents, particularly since the State had
already agreed to dismiss the charges
involving Elaine based on her
recantation.
And, even if Janie's note and its
contents were known to Futrell and
applicant or could have been discovered
by them through the exercise of due
diligence, we would further question
whether this evidence would have been
"available" to applicant to establish a
claim of actual innocence when he pled

23
and when his probation was revoked
given the father's influence over Janie
and his pressuring Janie not to recant.
See Brown, 205 S.W.3d at 545-47 (an
applicant must prove that the evidence
he relies upon is "newly discovered" or
"newly available"). We believe that
these circumstances would have made
Janie's note and its contents just as
"unavailable" to the applicant in this
case as the daughters' recantations were
"unavailable" to the applicant in Zapata
in which the applicant was unable to
produce the testimony of his recanting
daughters at his sentencing hearing
because the mother failed to produce
these daughters for the hearing. See Ex
parte Zapata, 235 S.W.3d 794, 795
(Tex.Cr.App. 2007) (applicant learned
of daughters' recantations "after the
entry of the plea but before sentencing"
and he "was unable to produce the
recantation testimony of his daughters
[at the sentencing hearing] through no
fault of his own"). We decide that
Janie's July 8, 2006, recantation
affidavit is "newly discovered" and
"newly available" evidence. See Brown,
205 S.W.3d at 545.

Ex parte Florence, __S.W.3d__, 2010 WL
clarified its holding in Ybarra when it stated
that, iI a court oI appeals denies a relator`s
mandamus application, relief may be sought
by filing an application for writ of mandamus
with the Court.
Ex parte Harrington, __S.W.3d__, 2010 WL
held that Article 11.07, 3(c), now explicitly
provides that 'conIinement means
confinement for any offense or any collateral
consequence resulting from the conviction
that is the basis of the instant habeas
corpus.
22
Thus, a showing of a collateral
consequence, without more, is now sufficient
to establish 'conIinement so as to trigger
application of art. 11.07. That an applicant is
not in the actual physical custody of the
government at the time of filing does not
preclude his application nor deprive the trial

22
TEX. CODE. CRIM. PROC. art 11.07, 3(c) (emphasis
added).
court of jurisdiction to consider it.
23
This
would apply to both current and potential
collateral consequences.
In re Simon, 306 S.W.3d 318 (Tex. Crim.
App. 2009). The Court ordered this
prohibition application filed and set to
determine whether Lagrone v. State,
942//602 (1997), applies to non-death penalty
cases and, iI so, whether the district court`s
pre-trial order requiring relator to submit to a
psychological examination conducted by the
State`s expert is authorized by Lagrone.
Relief denied. The Court found that this issue
was, at best, an 'unsettled legal question.
The Court then went on to say:

If what we said in Lagrone is not limited
in principle to the type of psychiatric
evidence presented at the punishment
phase of a death-penalty case, it may not
be limited in principle to the punishment
phase of a capital murder death-penalty
trial, or even to death-penalty cases at
all. Accordingly, we cannot say under
the circumstances of this case and
particularly in view of the tight
restrictions the trial court imposed on
the State in its order that the relator
has established a clear right to be
insulated Irom examination by a State`s
psychiatric expert. In granting the
State`s motion in this case, the trial
court exercised an manifestly judicial
(and not a ministerial) function. Such an

23
See Ex parte Alba, 256 S.W.3d 682, 695-96 (Tex. Crim.
App. 2008) (Price, J., dissenting) (concluding that, in light of
the 1995 amendment, '|i|t is doubtful . . . that literal
confinement is even a prerequisite to post-conviction habeas
relieI under Article 11.07 anymore); Ex parte Chi, 256
S.W.3d 702, 710 (Tex. Crim. App. 2008) (Price, J.,
dissenting) (same); Lebo v. State, 90 S.W.3d 324, 327 n.8
(Tex. Crim. App. 2002) (citing the amendment, noting that
'the Legislature is |thus| well aware oI the general use oI the
word conIinement` and perIectly capable oI expanding that
deIinition when it deems it appropriate.); Ex parte Okere,
56 S.W.3d 846, 853 (Tex. App.Fort Worth 2001, pet.
reI`d) (holding that, due to the amendment, 'Ex parte
Renier`s in custody` deIinition oI conIinement` is no
longer viable, even for an applicant seeking relief under
article 11.07.); State v. Collazo, 264 S.W.3d 121, 126-27
(Tex. App.Houston |1st Dist.| 2007, pet. reI`d) ('The
terms conIinement` and restraint` encompass incarceration,
release on bail or bond, release on community supervision or
parole, or any other restraint on personal liberty); (applicant
was 'conIined because he was denied the opportunity to
obtain a Texas peace-officer license).

24
'accomplished judicial act is not
subject to the extraordinary remedy of
prohibition.

XIII. PENDING 11.07 ISSUES AT THE COURT
OF CRIMINAL APPEALS.
The following is a list of some of the art. 11.07
habeas applications that have been filed and set for
submission and are currently pending before the Court:

Ex parte Spencer, No. AP-76,244. The Court
ordered this habeas application be filed and
set to determine whether: (1) Applicant
properly raised a free-standing actual
innocence claim, see Herrera v. Collins, 506
U.S. 390 (1993); (2) the evidence he relies on
is newly discovered or newly available, see
Ex parte Brown, 205 S.W.3d 538 (Tex. Crim.
App. 2006); (3) this Court should consider
advances in science and technology when
determining whether evidence is newly
discovered or newly available for purposes of
actual innocence; and (4) Applicant has
shown 'by clear and convincing evidence
that no reasonable juror would have
convicted him in light oI the new evidence.
Ex parte Elizondo, 947 S.W.2d 202, 209
(Tex. Crim. App. 1996). This case involves
an expert on visual science/witness
identification at a crime scene.
Ex parte Napper, Nos. AP-76,284 and
76,285. The Court ordered these habeas
applications be filed and set to determine
whether the DNA samples in question were
'potentially useIul evidence, as deIined by
SCOTUS in Illinois v. Fisher, 540 U.S. 544
(2004), and Arizona v. Youngblood, 488 U.S.
51 (1988). The Court also ordered the
applications be filed and set for submission
to determine whether Joseph Chu`s testimony
constitutes perjury, or false testimony, and, if
so, whether the admission of that testimony
contributed to his convictions or
punishments, and whether counsel rendered
ineffective assistance at trial.
Ex parte Chavez, No. AP-76,291. The Court
ordered this habeas application be filed and
set for submission to determine whether the
State presented false testimony in this case
and, if so, whether the Applicant is entitled to
relief based on the rationale set out in Ex
parte Chabot, 300 S.W.3d 768 (Tex. Crim.
App. 2009).
Ex parte Niswanger, No. AP-76,302. In this
case, the Applicant posed as a volunteer
fireman while selling fake tickets for a fake
charity. He was convicted of impersonating a
public servant and sentenced to ten years.
The Court ordered this habeas application be
filed and set for submission to determine
whether counsel was ineffective for failing to
properly investigate whether the facts of this
case would support a conviction for
impersonating a public servant.
Ex parte Ghahremani, Nos. AP-76,308 and
76,309. The Court ordered these applications
be filed and set for submission to determine
whether the State violated Brady when it
failed to turn over offense reports and e-mails
located in the State`s work-product folder
and, if so, whether the violation created a
reasonable probability that, had the evidence
been disclosed to the defense, the result
would have been different as to the
punishments.
Ex parte Sinegar, No. AP 76,340. This
application was filed and set for submission
to determine whether the motions filed by
Applicant requesting recusal or
disqualification of the trial judge from the
habeas proceedings complied with the
requirements of TRCP 18a, and if so,
whether the trial court must address the
motions as dictated by Rule 18a before this
Court decides the other issues raised in
Applicant`s writ oI habeas corpus.
Ex parte Rendon, No. AP 76,352. This
application was filed and set for submission
to determine whether: (1) Article 11.14
requires an applicant to sign an application
presented on his behalf, especially if, as is
the case here, the personal knowledge
regarding the allegations in the application
lies only with an applicant and (2) whether
an application requires an applicant`s
signature in order to be compliant with Rule
73.1(d) of the Rules of Appellate Procedure.

XIV. THE IMPORTANCE OF ATTORNEYS IN
THE HABEAS PROCESS.
The importance of counsel in ensuring that the
right to habeas corpus, and to other common law
remedies allowed under the Texas Constitution and
Code of Criminal Procedure, is preserved cannot be
overstated. As counsel representing applicants,
prosecutors pursuing justice, and trial judges acting as
fact finders, attorneys are on the front line in ensuring
the constitutionality of convictions in this State. And,
as a final reminder, it is important to remember, in the
context of art. 11.07 habeas applications, the trial
court`s Iindings oI fact and conclusions of law have
great weight with the final decision made at the Court.

25
While the Court is not bound by the trial court`s
findings, the Court should follow them where they are
supported by the record. Ex parte Brandley, 781
S.W.2d 886 (Tex. Crim. App. 1989); Ex parte Adams,
768 S.W.2d 281 (Tex. Crim. App. 1989). Therefore,
findings of fact and conclusions of law should always
be made a part of the habeas record forwarded to the
Court.

XV. CONCLUSION
I hope you found this very brief overview of
some of the writ issues we deal with at the Texas Court
of Criminal Appeals informative and helpful. If you
ever have any questions regarding habeas corpus, or
any of the other various matters handled at the Court,
please do not hesitate to give me a call at (512) 936-
1631, or e-mail me at:

michael.stauffacher@cca.courts.state.tx.us.

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