Post Conviction Matters

Appeals, Writs and Clearing Your Record: Post Conviction

Appeals and Motions for New Trial

Often times someone will find themselves at the tail-end of a case. They will be in need of a lawyer that can assist with undoing what has already occurred. These proceedings will typically start with a notice of appeal which needs to be filed within 30 days of judgment.

One has a right to appeal a conviction and/or sentence in state and federal cases. In Texas, there are two reviewing courts:

1. The Court of Appeals (the intermediate appellate court)
2. The Court of Criminal Appeals (the highest court)

In federal cases in Texas, there are two reviewing courts:

1. The Fifth Circuit Court of Appeals in New Orleans, LA (the intermediate court)
2. The United States Supreme Court (the highest court)

Occasionally, the most crucial time for anyone convicted of a crime is within the first 30 days. This is when an individual has the opportunity to file a Motion for New Trial. This motion can be instrumental in not only reopening a case in the court of conviction, but can also assist in preserving certain points of error for purposes of appeal. This motion can also trigger an evidentiary hearing which can provide useful information for both the trial court and the court of appeals on the record.

Post Conviction Writs of Habeas Corpus

If the direct appeal of your conviction or sentence has not been successful, you may be able to seek a new trial. This can be done by filing an application for a post-conviction writ of habeas corpus. A Texas writ is referred to as an 11.07, 11.071, 11.072, or 11.09 writ. A federal writ is known as a 2254 or 2255 writ.

A post-conviction writ allows you to introduce evidence and argument to show that an individual is being “confined” or “restrained” in violation of the Constitution. Common grounds include showing that your trial or appellate counsel did not provide effective assistance; the prosecutor engaged in misconduct, such as withholding favorable evidence; and discovery of new evidence establishing innocence.

A typical writ proceeding will provide a lawyer the opportunity to investigate the case from the very beginning of the proceeding. Lawyers that have experience in this area of practice will quote two separate fees. One will be for the investigation portion of a case. The other will be for moving forward with drafting an application and memorandum for the writ of habeas corpus, filing the application, and proceeding to a hearing if one is provided.

Individuals that are seeking to do a writ need to be aware that they typically have only one opportunity to file this type of application. Thus, hiring the right lawyer to address the investigation, drafting and filing a writ of habeas corpus is crucial.

Expunctions and Non-Disclosures: Post Conviction

Expunctions

Being charged with a crime is a frightening experience. It can impact your life not only in the near future but for the rest of your life. A criminal record can affect your ability to get a job, secure credit and housing, and reputation in the community. One of the most common questions an individual charged with a crime forgets to ask is if they will be eligible to clear their criminal record at the conclusion of their case. Unfortunately, many people do not take the time to ask. Their lawyer also often fails to tell them. The outcome of their case will determine if they can clear their name.

There are two ways to clear or seal your criminal record. One is by the process of expunction of criminal records, most easily understood as purging your file. The other is by filing a petition for non-disclosure. Both work in similar ways, however they have a different outcome after court approval. It is important to understand the difference between an expunction of a criminal record and the non-disclosure of a criminal record.

Expunction Eligibility:

Under Chapter 55 of the Code of Criminal Procedure, a petitioner is entitled to have all records and files concerning an arrest expunged. This process results in completely erasing your record.

You may be able to clear your arrest record if:

• Charges were never filed;
• Charges were filed, but then dismissed;
• You were acquitted;
• You were pardoned or otherwise granted relief based on your actual innocence; or
• You have not been tried and the prosecutor recommends expunction.

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If you qualify for an expunction based on one of the above situations and some other conditions, a lawyer can help prepare all of the paperwork and appear with you at the hearing you will be required to attend. If your petition is granted, the lawyer will make sure all the petitioned databases have removed your name from their records.

The most important advantage of sealing or erasing your record is that a signed order by the judge will secure your ability to withhold disclosure of a crime committed or being arrested for that crime.

Petition for Non-Disclosure

The most common way to seal your criminal record is by filing a petition for non-disclosure. This petition is typically filed after a successful completion of deferred adjudication. Processes can be confusing and technical, it’s important to hire a lawyer to help guide you. Hiring someone help expedite the process, and help you understand the law and how it applies to your case. The most important thing to understand is that taking a straight conviction on your record will exclude you from the group of people who are eligible to seal a record from the general public.

Non-Disclosure Eligibility:

Under Section 411.081(d) Government Code, a court can prohibit criminal justice agencies from disclosing to the public criminal history record information related to certain offenses for which the offender was placed on deferred adjudication. This process will result in a completely sealing your record.

After a lawyer files the non-disclosure, a hearing will be set in the same court of the crime charged 14 days from filing. The judge will hear the petition and will either sign the order granting the petition or deny it. If the order is signed, it will be sent to the Department of Public Safety. They will then send the order to all:

• Law enforcement agencies;
• Jails or other detention facilities;
• Magistrates;
• Courts;
• Prosecuting attorneys;
• Correctional facilities;
• Central state depositories of criminal records;
• Other officials, agencies or entities of this state or of any political subdivision of this state; and to
• Central federal depositories of criminal records that there is reason to believe have criminal history record information that is the subject of the order.

Those entities are obliged not to disclose the deferred adjudication record information to anyone other than:

• Other criminal justice agencies;
• For criminal justice or regulatory licensing purposes;
• An agency or entity listed in Section 411.081(i); and
• The person who is the subject of the order.

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Deferred Adjudication:

Your eligibility for non-disclosure is solely based on the type of case you had and if you successfully completed deferred adjudication.

Deferred adjudication is a form of plea deal, where an individual pleads “guilty” or “No Contest” to criminal charges. In exchange for this plea, an individual must meet certain requirements within a particular time period set out by the court. Upon completion of the requirements, a formal conviction is avoided and the case gets dismissed. However, being placed on a deferred adjudication for certain crimes will not qualify you for a non-disclosure.

Under Section 411.081(e)(1)-(4) Government Code, anyone who has ever committed any of the following offenses is not entitled to seek an order of nondisclosure:

• Indecency with a child
• Sexual assault
• Aggravated sexual assault
• Prohibited sexual conduct (incest)
• Aggravated kidnapping
• Burglary of a habitation with intent to commit any of the above offenses
• Compelling prostitution
• Sexual performance by a child
• Possession or promotion of child pornography
• Unlawful restraint, kidnapping, or aggravated kidnapping of a person younger than 17 years of age
• Attempt, conspiracy, or solicitation to commit any of the above offenses
• Capital murder
• Murder
• Injury to a child, elderly individual, or disabled individual
• Abandoning or endangering a child
• Violation of protective order or magistrate’s order
• Stalking
• Any other offense involving family violence

A knowledgeable attorney should also inform you that there is a five-year waiting period for all eligible felony cases. There’s a two-year waiting period for many misdemeanor cases.

The most important advantage of sealing or erasing your record is that a signed order by the judge will secure your ability to withhold disclosure of a crime committed or being arrested for that crime.

For more information on post convictions, writs, expunctions, or non-disclosure, call Gary Tabakman at 713-429-1624 or email at Gary@GTlawfirm.com.