Post-conviction Art. 11.09 writs of habeas corpus

Andréa Jacobs

Assistant Criminal ­District Attorney in ­Tarrant County

These types of writs are exceedingly rare, so if you’re faced with one, let this checklist guide your next steps.

Article 11.09 of the Texas Code of Criminal Procedure applies to writs of habeas corpus at every stage of a misdemeanor (from charge to post-conviction), and post-conviction Art. 11.09 petitions are as uncommon as they come. Therefore, even the most experienced writ prosecutor must take a moment to regroup before organizing a plan of attack.
    Protect your conviction by being proactive—don’t wait for the judge to grant relief before you file a response. Also, don’t think of such a case as “just a misdemeanor.” While you might have a strong desire to brush this off because it seems less important than a felony, make sure this conviction has not been used to enhance another conviction (e.g., DWI, FV assault, etc.).
     Here is a checklist specifically for post-conviction Art. 11.09 petitions for writ of habeas corpus (misdemeanor convictions—not unrevoked community supervision cases—ruled on by the trial court and generally appealable).
    Editor’s note: One copy of Andréa’s upcoming Writs book will be sent to all prosecutor offices in Texas this spring, courtesy of our Court of Criminal Appeals grant. Be on the lookout for it!

Get served
•    Have a good relationship with the court staff (so they’ll let you know when a writ comes in or if a defense attorney requests a hearing).
•    Also know the local defense attorneys, especially the ones who would try to have the court rule without your knowledge.

Will the court refuse to issue a writ?1
•    If the writ is frivolous on its face, the trial court can refuse to “issue” it before ever considering it on its merits.
•    Is this a misdemeanor conviction? (CCP Art. 11.072 governs writs in deferred adjudication or community supervision cases.)
•    Is the applicant confined? (No confinement equals no jurisdiction.)
    *    Is the applicant physically confined?
    *    Is there a collateral consequence, such as deportation, conviction used for enhancement, license prohibition, etc.?

Calendar deadlines2
There are no set deadlines, so request a scheduling order. My recommendations:
•    14 days from State’s receipt of petition: motions for affidavits, request for hearings, and preliminary discovery requests are due.
•    30 days from State’s receipt of petition: Answer is due if no affidavits or hearings are ordered.
•    14 days after affidavits are filed or hearings are held: All final pleadings are due (including proposed findings of fact and conclusions of law).
•    seven days after all pleadings are filed: court’s order.

•    Are the claims cognizable?
•    Order records (appellate and trial files).
•    Do you need evidence to properly respond to claims? (Is it a purely legal claim?)
    *    Are the claims barred by laches because the evidence is no longer available? (Is the attorney dead? Are the files destroyed?)
    *    Do you have the evidence (e.g., the appellate record, witness statements, lab reports, photos, videotapes, digital media, etc.)?
    *    Do you need affidavits (e.g., Padilla, ineffective assistance of counsel [IAC], and involuntary plea claims)?
    *    Is a hearing needed (e.g., actual innocence, IAC, etc.)?

State’s Response
•    Request scheduling order for deadlines.
•    Request order for affidavits.
•    Request a hearing.
•    Respond on the merits.

Findings of Fact
•    These should be separate from Conclusions of Law (addressed below).
•    Address every claim.
•    If there are multiple grounds, organize findings of fact under each ground for purposes of clarity.
•    Every finding should have a citation to the record or a clear explanation as to origin (e.g., trial court’s personal recollection).
•    Each finding should contain only one fact.
•    List the findings of fact in logical order to create a step-by-step, easy-to-follow progression for the trial court.
•    If your trial court or judge has a particular custom that is important to resolving the issue, have her make a factual finding about that custom (e.g., “As a matter of custom and procedure, this court always asks the defendant’s attorney if he believes the defendant is mentally competent to enter the plea and receives an affirmative answer before this court will consider accepting the plea”).

Conclusions of Law
•    These should be separate from Findings of Fact (addressed on the previous page).
•    Address every claim.
•    If there are multiple grounds, organize conclusions of law under each ground for purposes of clarity.
•    Provide a legal basis for each legal conclusion (citation to caselaw, statute, rule of evidence, rule of appellate procedure, rule of civil procedure, local rule of court, treatise, etc.).
•    Each conclusion of law should contain only one conclusion.
•    List the conclusions of law in logical order to create a step-by-step, easy-to-follow progression for the trial court.

•    Unless local rules require otherwise, always prepare a proposed order for the trial court to sign adopting your proposed findings/conclusions or a proposed order that includes the desired findings/conclusion.
•    The trial court rules on the petition.

•    If there is a concern that the trial court will adopt the applicant’s proposed findings, file objections to those proposed findings as soon as is reasonably possible.
•    If trial court grants relief without making findings of fact and conclusions of law, request that the trial court make them for purposes of appeal.

•    If the trial court refuses to issue the writ, no appeal can be made.4
•    If the trial court denies the writ, the applicant can appeal.
•    If the trial court grants the writ, the State can appeal.5
•    The State has 20 days from the date of order or ruling to file a notice of appeal.6
•    The elected prosecutor must personally sign the notice of appeal.7

1 Tex. Code Crim. Proc. Arts. 11.10 and 11.15.
2 Tex. Code Crim. Proc. Art. 11.10.
3 Tex. Code Crim. Proc. Art. 11.44.
4 Ex parte Noe, 646 S.W.2d 230, 231 (Tex. Crim. App. 1983).
5 Tex. Code Crim. Proc. Art. 44.01(a)(1)–(4).
6 Tex. Code Crim. Proc. Art. 44.01(d); Tex. Rules App. Proc. 26.2(b).
7 Tex. Code Crim. Proc. Art. 44.01(i); State v. Muller, 829 S.W.2d 805, 811 (Tex. Crim. App. 1992).