Articles Posted in writs of habeas corpus

Generally  speaking, an inmate or person convicted of a crime is not allowed to raise grounds for relief in an application for writ of habeas corpus based entirely on events that occurred during trial. Such grounds are described as “record-based” because they are a part of the reporter’s record. The Court of Criminal Appeals established the prohibition against raising such claims in the context of Article 11.07 writ jurisprudence (i.e. writs filed post-conviction under Article 1107 of the Code of Criminal Procedure), but the general prohibition against “record-based” claims could also be applied to writs filed to challenge misdemeanor convictions and other types of statutory and non-statutory writs.

The rationale behind the prohibition is simple. If the claim is record-based, then it could have been raised on direct appeal. If the defendant did raise the issue on appeal, then the Court of Criminal Appeals considers it resolved – you don’t get “another bite at the apple.” Conversely, if you didn’t raise that issue on appeal, then you have effectively waived the issue – you had your chance to bite the apple, but didn’t, so . . . no apple for you. I promise no more apple metaphors.

In any event, that’s the rule. But as always, an inmate looking to file an 11.07 application should be mindful of a few exceptions.

New clients often ask me when they can apply for a writ of habeas corpus under Article 11.07. Unless they’ve been prison for awhile, my normal answer is, “Not yet.”

Article 11.07 refers to a section of the Texas Code of Criminal Procedure that establishes the procedures for filing an application for writ of habeas corpus after being convicted of a felony offense. This may sound straight forward, but there are some procedural rules that limit when such an application can be filed.

First, your conviction has to be final. Or to use a technical phrase, “mandate” has to have issued. Mandate only issues when you have exhausted the direct appeals process. It’s probably easier to explain this with an example.

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