If you are approached by a client who wants to challenge a criminal matter, you must first help them to understand that writs and appeals are different. Habeas writs are about finding facts outside the record that if true would entitle you to relief. Direct appeals are based on the trial record.
1
Figure out If a Writ Is The Best Way to Move Forward
Many clients want to get rid of unfair or unwanted items on their record. Sometimes they are eligible for other relief besides habeas writs, such as: 1) a petition to restore their civil rights, 2) a motion for non-disclosure, or 3) in a juvenile context, a motion to seal under the Family Code. At times they may still have options left on the direct appeal, such as filing a Petition for Discretionary Review with the Court of Criminal Appeals in Austin. (Generally appeals must be exhausted prior to filing writs). A lengthy interview and a review of the paperwork from the client will help you find the right means of assisting them.
2
Figure out What Type of Writ Is Best
Article 11 of the Texas Code of Criminal Procedure outlines various types of writs to use when one is seeking post-conviction relief, or post-indictment. For example, to challenge either the conditions or the facts of community supervision on deferred, one can use a writ drawn under Article 11.072, or in certain cases under 11.08. For final final felony convictions that have exhausted their appeals, or never got one because they were plea bargains and hence waived their appeal, the best format is usually a writ under Article 11.07, which requires a specific form, available from the Clerk's office or online from the Court of Criminal Appeals.
3
Pull Every Record You Can
You will need the Judgment and Sentence, the plea papers [if applicable] or the trial record from the appeal. You will need the briefs filed, the clerk's records, [all of them, not just the stuff that gets sent to the appellate courts] the original lawyer's files, any notes or letters from your client, in short, anything that helps you understand the broad outlines of what happened to your client. Send Open Record Requests for every state file. Then the hard part starts.
4
Investigate and Interview for Everything You Can Find
You know what the official record says. Now you need to get to what they did not find. Example: was there evidence that your client suffered from mental illness at the time of his encounter with the law? Then you need medical records, diagnosis from the treating doctors, and family interviews/affidavits to substantiate the claims for either incompetence, insanity, or ineffective assistance for the trial lawyer's failure to develop this information for trial.
You need to interview the attorneys at trial. This is not only for IAC claims, [which often are simply not there] but to determine if there was state or jury misconduct, or bad actions or bias by the trial judge. Assume nothing was correct in the original case, but remember it is YOUR burden to prove a constitutional violation, no one else's.
5
Outline Your Claims and The Proof
This means literally sitting down and drawing out the potential claims, followed by every piece of evidence you have that substantiates this. Example: your first claim may be that the police hid exculpatory information relating to another suspect that was tentatively identified at the scene, an item you discovered via an Open Records Request. The copies of those police notes or reports get attached to the writ application, and in your outline are listed behind the claim. It should also point you to witnesses you need to subpoena or interview, and their statements/affidavits should be appended as well.
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