Can a Sentence Reduction Be Given for a Sex Offense in Texas?
Full Question:
Answer:
An appeal may be made in some cases where there is claimed to be an error in the proceedings. Even if you do not prevail on direct appeal, you may be able to pursue an application for post-conviction writ of habeas corpus. Common grounds include ineffective assistance of counsel, prosecutorial misconduct, and actual innocence.
For further discussion, please see:
http://www.texindbar.org/habeas_intro.doc
Please see the following Texas statutes:
Art. 44.02 CODE CRIM. P. [813] [894] [872] Defendant may appeal
A defendant in any criminal action has the right of appeal under the
rules hereinafter prescribed, provided, however, before the defendant who
has been convicted upon either his plea of guilty or plea of nolo
contendere before the court and the court, upon the election of the
defendant, assesses punishment and the punishment does not exceed the
punishment recommended by the prosecutor and agreed to by the defendant
and his attorney may prosecute his appeal, he must have permission of the
trial court, except on those matters which have been raised by written
motion filed prior to trial. This article in no way affects appeals
pursuant to Article 44.17 of this chapter.
Art. 11.07 CODE CRIM. P. [119] [167] [157] Procedure
after conviction without death penalty
Sec. 1. This article establishes the procedures for an application for
writ of habeas corpus in which the applicant seeks relief from a felony
judgment imposing a penalty other than death.
Sec. 2. After indictment found in any felony case, other than a case in
which the death penalty is imposed, and before conviction, the writ
must be made returnable in the county where the offense has been
committed.
Sec. 3. (a) After final conviction in any felony case, the writ must be
made returnable to the Court of Criminal Appeals of Texas at Austin,
Texas.
(b) An application for writ of habeas corpus filed after final
conviction in a felony case, other than a case in which the death
penalty is imposed, must be filed with the clerk of the court in which
the conviction being challenged was obtained, and the clerk shall
assign the application to that court. When the application is received
by that court, a writ of habeas corpus, returnable to the Court of
Criminal Appeals, shall issue by operation of law. The clerk of that
court shall make appropriate notation thereof, assign to the case a
file number (ancillary to that of the conviction being challenged), and
forward a copy of the application by certified mail, return receipt
requested, or by personal service to the attorney representing the
state in that court, who shall answer the application not later than
the 15th day after the date the copy of the application is received.
Matters alleged in the application not admitted by the state are deemed
denied.
(c) Within 20 days of the expiration of the time in which the state is
allowed to answer, it shall be the duty of the convicting court to decide
whether there are controverted, previously unresolved facts material to
the legality of the applicant's confinement. Confinement means
confinement for any offense or any collateral consequence resulting from
the conviction that is the basis of the instant habeas corpus. If the
convicting court decides that there are no such issues, the clerk shall
immediately transmit to the Court of Criminal Appeals a copy of the
application any answers filed, and a certificate reciting the date upon
which that finding was made. Failure of the court to act within the
allowed 20 days shall constitute such a finding.
(d) If the convicting court decides that there are controverted,
previously unresolved facts which are material to the legality of the
applicant's confinement, it shall enter an order within 20 days of the
expiration of the time allowed for the state to reply, designating the
issues of fact to be resolved. To resolve those issues the court may
order affidavits, depositions, interrogatories, additional forensic
testing, and hearings, as well as using personal recollection. The state
shall pay the cost of additional forensic testing ordered under this
subsection, except that the applicant shall pay the cost of the testing
if the applicant retains counsel for purposes of filing an application
under this article. The convicting court may appoint an attorney or a
magistrate to hold a hearing and make findings of fact. An attorney so
appointed shall be compensated as provided in Article 26.05 of this code.
It shall be the duty of the reporter who is designated to transcribe a
healing held pursuant to this article to prepare a transcript within 15
days of its conclusion. After the convicting court makes findings of fact
or approves the findings of the person designated to make them, the clerk
of the convicting court shall immediately transmit to the Court of
Criminal Appeals, under one cover, the application, any answers filed,
any motions filed, transcripts of all depositions and hearings, any
affidavits, and any other matters such as official records used by the
court in resolving issues of fact.
(e) For the purposes of Subsection (d), "additional forensic testing"
does not include forensic DNA testing as provided for in Chapter 64.
Sec. 4. (a) If a subsequent application for writ of habeas corpus is
filed after final disposition of an initial application challenging the
same conviction, a court may not consider the merits of or grant relief
based on the subsequent application unless the application contains
sufficient specific facts establishing that:
(1) the current claims and issues have not been and could not have been
presented previously in an original application or in a previously
considered application filed under this article because the factual or
legal basis for the claim was unavailable on the date the applicant
filed the previous application; or
(2) by a preponderance of the evidence, but for a violation of the
United States Constitution no rational juror could have found the
applicant guilty beyond a reasonable doubt.
(b) For purposes of Subsection (a)(1), a legal basis of a claim is
unavailable on or before a date described by Subsection (a)(1) if the
legal basis was not recognized by and could not have been reasonably
formulated from a final decision of the United States Supreme Court, a
court of appeals of the United States, or a court of appellate
jurisdiction of this state on or before that date.
(c) For purposes of Subsection (a)(1), a factual basis of a claim is
unavailable on or before a date described by Subsection (a)(1) if the
factual basis was not ascertainable through the exercise of reasonable
diligence on or before that date.
Sec. 5. The Court of Criminal Appeals may deny relief upon the findings
and conclusions of the hearing judge without docketing the cause, or
may direct that the cause be docketed and heard as though originally
presented to said court or as an appeal. Upon reviewing the record the
court shall enter its judgment remanding the applicant to custody or
ordering his release, as the law and facts may justify. The mandate of
the court shall issue to the court issuing the writ, as in other
criminal cases. After conviction the procedure outlined in this Act
shall be exclusive and any other proceeding shall be void and of no
force and effect in discharging the prisoner.
Sec. 6. Upon any hearing by a district judge by virtue of this Act, the
attorney for applicant, and the state, shall be given at least seven
full days' notice before such hearing is held.
Sec. 7. When the attorney for the state files an answer, motion, or
other pleading relating to an application for a writ of habeas corpus
or the court issues an order relating to an application for a writ of
habeas corpus, the clerk of the court shall mail or deliver to the
applicant a copy of the answer, motion, pleading, or order.
