Rosenthal Kalabus & Therrian

(972) 369-0577

We Pick Up the Phone Every Time; Call 24 Hours a Day, 7 Days a Week

How Does an 11.07 Writ of Habeas Help a Convicted Person?

I recently answered a similar question in the context of a murder conviction where an individual was sentenced to 25 years imprisonment. The question also raised issues about the defendant being a first-time offender, having inadequate representation, false witness testimony and a prosecution based upon circumstantial evidence. In answering this specific question, I realized that these issues actually apply to a wide range of individuals seeking what is referred to as “post-conviction relief” in the form of a Writ of Habeas Corpus under Texas Code of Criminal Procedure Article 11.07. Below is the analysis of the specific questions raised.

11.07 refers to a post-conviction remedy under the Texas Code of Criminal Procedure Section 11.07 known as a “writ of habeas corpus.” There is not deadline to file an 11.07 writ of habeas corpus, but our courts say that delay in requesting 11.07 relief can have the effect of watering down an issue. As a rule of thumb, 11.07 relief is limited to issues which could not be raised during the course of the original representation. Let me address the issues you raise below.

First-time offender. Typically, this is what is referred to as a “punishment issue.” A judge or jury’s determination as to what weight to give a defendant’s clean record in punishment is almost impossible to change on appeal. Presumably, this was factored-in when determining a 25 year sentence.

False statements. These fall into two categories: (1) false statements which were believed to be false during trial and for which the defense had ample opportunity to confront through cross-examination, and (2) false statements which were learned by all to be false after the trial because a witness recanted. Generally, the second scenario would be a potentially fruitful area to investigate on an 11.07 writ of habeas corpus.

Circumstantial evidence. Circumstantial evidence is sufficient evidence to obtain a conviction. If a judge or jury determines that it adds up to proof beyond a reasonable doubt, this is very hard to contest through the 11.07 writ of habeas corpus process

Inadequate representation. This is one of the most common forms of 11.07 writ of habeas corpus, also known as “ineffective assistance of counsel.” If there was something that the attorney at trial should have done but didn’t and it can be shown that it affected the outcome of the guilt/innocence or punishment, this would be a good 11.07 issue.

You should consult with an attorney. The points made above are not absolutes. Many times the only way to know if there is an 11.07 Writ of Habeas issue is to hire an attorney to order a transcript and take a look under the hood.

Written by: Rosenthal Kalabus & Therrian Last Updated : November 3, 2014