TCDLA Texas Criminal Law Short Course - Voice For The Defense ...

Post Conviction Remedies
conri,~rrcdfmwr page 22
In Gray v. Mississippi, 107 S.Ct. 2045
(1987) the Supreme Court held that harmless
error does not apply to Witherspoot~
error.
Additional Miscellaneous Issues
Nonmeritnrious
That appointed counsel did not file a
waiver of the ten days to prepare for trial.
Erparte Reed, 610 S.W.2d 495 (Tea. Cr.
App. 1981); Ex pane Meadows, 418
S.W.2d 666 (Tex. Cr. App. 1967).
That a search was illegal. Ex parte
Kirby, 492 S.W.2d 579 (Tex. Cr. App.
1973). Such issue also cannot be raised in
federal habeas. Stone v. Powell, 96 S.Ct.
3037 (1976).
That a charge allowed a conviction upon
a theory not alleged within the indictment.
E~parte Coleman, 574 S.W.2d 165 (Tex.
Cr. App. 1978).
That nnnishment as a habitual criminal
constit& cruel and unusual punishment.
Armendariz v. State, 529 S.W.2d 525
(Tex. Cr. App. 1975). See also Rummel
v. Estelle, 587 F.2d 651 (5th Cir. 1978).
That there is newly discovered or available
evidence, even if that evidence raises
a question of innocence. The proper
remedy is for the applicant to seek a pardon
for innocence. Ex pane Binder, 660
S.W.2d 103 (Tex. Cr. App. 1983); see
also Whitmore v. Stare, 570 S.W.2d 889
(Tex. Cr. App. 1978).
The Dallas County Magistrates Act has
been consistently upheld. Es parte
Howard, 685 S.W.2d 672 (Tex. Cr. App.
1985); Ex parte Stacey, 709 S.W.2d 185
(Tex. Cr. App. 1986); Kelly v. State, 724
S.W.2d 42 (Tex. Cr. App. 1987).
That a conviction was obtained in violation
of the carving doctrine. The death of
the doctrine is fully retroactive. Exparfe
Clay, 675 S.W.2d 765 (Tex, Cr. App.
1984); Exparte McWilliatns, 634 S.W.2d
815 (Tex. Cr. App. 1982).
Meritorious Issues
That the conviction was had under an un-
constitutional statute. Exparte Crisp, 661
S.W.2d 944 vex. Cr. App. 1983); Ex
patte Scott, 455 S.W.2d 244 (Tex. Cr.
App. 1970).
That the conviction was had under a general
statute when the prosecution should
have been bmught under a specific statute.
Exvane PriDble, 548 S.W.2d 54 (Tex. Cr.
A ~ 1977). ~ .
That trial was had while the applicant
was dressed in jail clothing, over ohjection.
Clark v. State. 545 S.W.2d 175 (Tex.
Cr. App. 1975).
That an interpreter was denied at trial.
ExpaneNanes, 558 S.W.2d 893 (Tex. Cr.
App. 1977). See Ex pane G~rznlon, 730
S.W.2d724 (Tex. Cr. App. 1987) for an
explanation as to how interpreters should
be utilized at trial.
That a proper pretrial competency hearing
was not held. Ex parte Ridley, 658
S.W.2d 177 (Tex. Cr. App. 1983); Ex
parte McKenzie, 582 S.W.2d 153 (Tex.
Cr. App. 1979).
That the state intentionally suppressed
evidence favorable to the applicant. EA
parte Lewis, 587 S.W.2d 697 (Tex. Cr.
App. 1979); Exparte Salinas, 660 S.W.2d
97 (Tex. Cr. App. 1983).
That the judge entered a judgment nunc
pro tunc to add on as "court costs" the
cost to the county of having to retrieve applicant
from another jurisdiction after he
absconded the probation. Exprfe Dicker-
son. 702 S.W.2d 657 (Tex. Cr. App. -.
1986).
That applicant was convicted of two offenses
arising from a single transaction. &
parte Ellison, 699 S.W.2d218 (Tex. Cr.
App. 1985).
Where a trial judge bad taken into account
an offense as an unadjndicated offensepursuant
to V.T.C.A., Penal Code,
Section 12.45 and the primary is not based
on a jurisdictional error, the trial court was
without authority to dismiss the primary
and try the applicant on the unadjudicated
offense. It is intimated that the result might
be different had the primary been based on
an error of jurisdiction. Ex parfe Smith,
690 S.W.2d 601 (Tex. Cr. App. 1985).
See and compare Ex park Chiselm, 623
S.W.2d 354 (Tex. Cr. App. 1981).
Where applicant's motion to suppress
was not considered on appeal by the Court
of Appeals because applicant had signed
a plea bargain and judicial confession, a
correct ruling at the time of the Court of
Appeals' action, applicant was entitled to
an out-of-time appeal. Exparte Grant, 687
S.W.2d 6 (Tex. Cr. App. 1985).
Where the trial court required the probationer
to serve from 60 to 120 days in
TDC as a condition of probation, something
allowed only where an affirmative
finding of use or exhibition of a deadly
weapon is made, relief was granted. Ex
parte Pena, 739 S.W.2d 50 (Tex. Cr.
App. 1987).
Summation
As you can see, habeas corpus in Texas
pursuant to Article 11.07, Section 2, et
seq., supra, has been heavily litigated. AS
long as the prison system is bursting at its
seams the statute will continue to he heavily
utilized and, for every year's worth of
writs filed in the Court of Criminal Appeals
thereis a small percentage that plow
new ground, opening whole new areas of
post trial litigation, or simply gaining relief
for one uniquely situated individual.
Every case ever decided under the
statute has not been mentioned herein. Indeed,
it is likely that whole areas of the law
and some very important case law have
been omitted. But with the information
presented here, yon should be able to survive
your trip through the area.
Acknowledgments
The author wishes to thank Mr. Walter
C. Prentice of Austin, the author of the
Habeas Corpus section for the Advanced
Criminal Law Course as well as many additional
articles and papers on the topic.
His friendship and invaluable assistance
throughout the years, both at the Court and
afterward, will be forever appreciated.
Much of this paper consists of his work.
I also wish to thank the members of the
Central Staff of the Court of Criminal Appeals,
both past and present. Through the
years every person who has worked with
the Court has contributed to my, and hopefully
your, understanding of the area of
habeas corpus. These people work day in
and day out in unseen jobs supporting the
Court's work, especially in the writ area.
Without any one of them neither the job
nor this paper would he the same. .
September 1988 / VOICE for the Defense 23