Posted on January 12, 2020 in Writs of Habeas Corpus

Defendants usually don’t realize their guilty plea was involuntary at the time they enter it. This is because involuntary pleas are almost always based on a misunderstanding, misrepresentation, or ineffective assistance on the part of plea counsel. It takes awhile for the defendant to realize what has happened.

Trying to undo a guilty plea is never easy. Defendants often fail to understand the legal significance of what they’ve signed. If you’re regretting entering a guilty plea and want to fight it, ring up a good criminal appeal attorney, because, as you’ll see below, the strategy you need to fight it depends on the procedural details of the case and at what point in the process you realized you’d been crossed, mislead, or misadvised.

In a three-part series, I’m going to describe how the guilty plea is protected by the Criminal Justice System, how a plea bargain is immortalized into a judgment, how a plea open to the court works (and how defendants sometimes get screwed with this procedural arrangement), and how to challenge guilty pleas as involuntary.

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 Posted on January 09, 2020 in Parole

I’m writing a series of blog posts on what constitutional rights you have, or don’t have, during the parole review process.

In my first article, I explained why inmates have no constitutional protection during normal parole review.

In this post, I focus on another type of statute-based parole review called discretionary mandatory release, which is controlled by Texas Government Code Section 508.149. Part (a) of the statute explains which inmates are eligible for mandatory release. See my post here for more information on eligibility. Part (b) provides a framework for parole boards to use when deciding if an inmate should be released to mandatory supervision.

Additionally, section 508.149 creates two parallel sets of rights for all eligible inmates, one set based on fundamental due process protections, and the second based on statute-based procedural guarantees for subsequent reviews if an inmate is initially denied release.

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 Posted on December 22, 2019 in Parole

This is the first of a series of blogs I intend to right about what rights, if any, you get during various phases of the parole process.

This particular article focus on an inmate’s first contact with the Texas Board of Pardons and Parole – the initial parole review.

1. The Rights You Lose Along the Way

Most attorneys and even most of their clients have a general familiarity with what rights the United States Constitution affords them during a traffic stop, investigation, arrest, plea, or trial. We’ve all heard of the right to remain silent, the right to have an attorney, and the right to confront the witnesses the State wants to call against you.

But after you’ve been convicted, you lose most of the those rights.

There’s an obvious reason why: either you’ve actively waived your rights pursuant to a plea agreement, or you used your rights during a jury trial and lost. You’re an inmate, a probationer, or a felon . Your rights have been expended, and now you’re in the belly of the beast — the Texas prison system.

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 Posted on December 14, 2019 in Post Conviction

I get calls on a regular basis from families asking questions about their loved one’s “short way” release date. The family doesn’t really know what the guy is talking about, and so they ring me up. Here’s a breakdown of what the inmate means, and the legal realities all inmates face as they work to get out of prison as quickly as possible.

“Short way” used to be slang for “mandatory supervision.” Prior to 1996, the Government Code authorized the Texas Board of Pardons and Parole to release certain categories of inmates automatically when their calendar time and good conduct time equalled the full term of the prison sentence. Inmates and their families could rely on the “short way” release date and plan accordingly.

But the law changed after 1996 as the Texas Legislature became uncomfortable with automatic release. For inmates incarcerated after the new law went into effect, release was no longer “mandatory” when their good time and calendar time equalled their sentence. Instead, the parole board could deny release if:

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 Posted on November 08, 2019 in Appeals

One of the first questions clients ask me about appealing their criminal conviction is what issues can be raised.

My usual answer: it depends on what your trial attorney objected to. The points of error I raise are almost always limited by what the defense attorney did or didn’t do during trial. Below is a description of why objections matter, how they are made, and how a good appellate attorney can act strategically when dealing with poorly-made objections.

Why Objections Matter

With very few exceptions, appellate attorneys operate under two primary constraints:

1. They can only raise issues that were “preserved” during trial (in other words things that the trial attorney stood up and said “objection” to in front of the court).
2. They can only raise issues that appear in the record (the actual transcript of the trial).

(See my previous blog post on motions for new trial where I discuss methods and strategies for developing a record for incidents that occurred during the trial but were not recorded by the court reporter.)

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 Posted on November 06, 2019 in Practical Advice

Like many States, Texas relies on a risk assessment analysis when deciding to release a particular inmate to parole. Although the State has broadly described the concepts and factors it relies on in creating its Risk Assessment Number, it keeps the actual methodologies used in a “Black Box” that leaves inmates, their families, and parole lawyers in the dark about how a potential parolee actually gets assessed and categorized.

Here’s a basic overview of the process:

The Texas Board of Pardons and Paroles (BPP) creates its particular risk assessment by relying on two primary groups of personal data:

1. Individual “static” factors for each inmate; and
2. Individual “dynamic” factors for each inmate.

After using these factors to get a number range, the BPP then uses a third metric it calls the “Offense Severity Class” to create a “matrix.” The matrix numbers are combined to give inmates their final single-digit “Texas Parole Guidelines Score.” That score is the key number relied upon by parole boards when deciding on whether to release an inmate on parole.

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 Posted on October 27, 2019 in Writs of Habeas Corpus

After a conviction is final, the only effective way to hold the prosecution accountable for failing to disclose exculpatory evidence is through filing an 11.07 writ application in accordance with the Texas Code of Criminal Procedure.

But public disclosure laws make the investigation of prosecutorial misconduct difficult. Specifically, the Texas public disclosure statute allows District Attorney Offices to withhold prosecutor “work product” from defense attorneys who make written request to review the State’s file.

The State relies on this “work product exception” to remove all prosecutor notes, internal memoranda, emails from law enforcement, trial preparation documents, and court notes (to name just a few commonly-withheld items) from a defense attorney’s review. The result is that defense attorneys can’t see the very documents most likely to contain “Brady” material (i.e. potentially exculpatory evidence), or documents that at least reveal misbehavior on the part of law enforcement.

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 Posted on October 19, 2019 in Post Conviction

In Texas, the statute-based motion for new trial is the most efficient way to raise two types of error immediately after a conviction or guilty plea:

1. Ineffective Assistance of Counsel and
2. Newly-Discovered Evidence Favorable to the Defense

To be clear, there is no explicit list of what can and can’t be raised in a motion for new trial. I’ve used a motion for new trial (let’s call it the MNT) to effectively raise issues related to sentence length and prosecutorial misconduct. But for the most part, we use MNT’s to preserve issues related to defense attorney mistakes and introduce new material facts for the trial and appellate courts to consider.

After a Guilty Plea

Another important point: the MNT isn’t just for contested cases — they can be used to undue guilty pleas when the client had a mistaken belief about the consequences of his plea or the lawyers had an incomplete knowledge of relevant facts.

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 Posted on October 09, 2019 in Parole

The Texas parole system can be extremely frustrating, even for those fortunate inmates who get voted for release on their first review. It’s best for those going into the TDCJ system and their families to be aware of the potential delays and pitfalls in the parole system so that they can be proactive. I’ve prepared some highlights of the bureaucratic process you’ll have to negotiate. Please understand this is a general summary. Every case has specific facts that will need to be addressed by the inmate’s parole lawyer.

1. The Texas Board of Pardons and Parole is administratively distinct from the Texas Department of Criminal Justice (and this matters).

If you go to the Parole Board (BPP) website, you’ll see a url that includes “TDCJ.” So you’d assume that the BPP is just another department inside the criminal justice system in Texas. But in fact the BPP operates separately.

This is important because the BPP’s only job is to vote for release or denial of release (a job done by the parole board members and commissioners who sit on seven different parole boards across Texas). As part of the voting process, the board also assigns conditions for release.

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 Posted on October 02, 2019 in Writs of Habeas Corpus

Nearly all of my clients ask me at some point if we can use an Article 11.07 writ to get a reduced sentence.

The short answer is no. The writ is used to collaterally attack a prison sentence. It is an “all or nothing” fight where I try to find a cognizable ground for relief that was so prejudicial to my client that the only remedy is a new trial. There’s no procedural way to ask for less time on the sentence my client has already received. Judgments are final unless reversed, full stop.

But that’s not the whole story.

11.07 writ procedures are not immune to the normal leverage and negotiation tactics that you’re used to seeing prior to trial. In fact, a good writ attorney has to be willing to devote just as much energy, if not more, to negotiating effectively with the DA office than she does investigating the case and drafting legal arguments.

In the case of 11.07 writs, however, the only way to create negotiating power is to develop facts favorable to your grounds for relief, such as concessions from trial counsel, legal errors or misstatements of the law that occurred during the trial without objection, and new evidence such as witness affidavits that contradict or call into question key trial testimony.

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