If you or someone you love has been convicted of a crime, it can be devastating, especially if you’ve just been through a difficult legal battle or criminal trial. Thinking about next steps can be overwhelming, but if you plan to fight the conviction, time is of the essence, as the law only allows you to appeal within certain time limits.
The sooner you hire a lawyer with a proven track record of filing appeals and writs of habeas corpus (the two types of post-conviction relief) the sooner you can feel hope once again.
In Travis County and throughout Texas, wrongful convictions are tragic and all too common. The sad truth is that overturning them can be an uphill challenge, but with the help of a passionate, smart, and experienced attorney, a reversal is possible.
For appeals and writs, it’s vital to act quickly, as both have time constraints dictated by Texas Law. Yet before we dig into those, let’s first distinguish between the two. Yes, both appeals and writs are avenues for overturning convictions, but they each have a distinct focus.
Appeals deal with errors that happened during the trial. For example, if you believe the trial judge clearly misapplied the law, then filing an appeal is your best move. Or if you believe the court allowed evidence to be introduced that should have been suppressed, then your lawyer should raise this issue on appeal. If the appellate courts find the argument persuasive, they may recommend a new trial.
Although some people may choose to forgo their direct appeal, if pursued, this process always comes before the writ. You can never file an appeal after you’ve filed a writ.
Writs of Habeas Corpus
A writ of habeas corpus, on the other hand, allows a person to bring forth new evidence that could prove their innocence or that their conviction was obtained in an unconstitutional manner.
Examples of new evidence include:
New DNA findings
New witness statements
New video evidence
New expert testimony
Writs are often used to argue that a person’s criminal defense attorney at the trial level provided ineffective assistance or that a defendant entered a plea agreement involuntarily. If the judges agree that this new evidence proves a person’s conviction is wrongful, then they may reverse it.
Which Should I Choose, an Appeal or A Writ?
A person may choose to pursue their writ after exhausting their appeal process, or they may decide to jump straight into filing their writ of habeas corpus. If you are unsure if you want to start with an appeal or writ, you should reach out to an experienced appellate attorney in Texas who focuses on post-conviction relief, such as Chris Perri in Austin, for guidance.
How much time do I have to file an appeal in Texas?
Because appeals deal directly with challenging the judge’s ruling at trial, they require immediate attention. If you were convicted in state court, Texas law requires that you notify the courts of your decision to appeal within 30 days.
To be clear, this does NOT mean that your appeal has to be complete in 30 days. It simply means that you – or your lawyer – has to officially inform the courts of your plan to appeal. The only exception is if your attorney files a motion for a new trial within 30 days of the judgment. In that case, you have 90 days from the judgment date to notify the courts of your intent to appeal.
If your conviction occurred in federal court, then you must act even more quickly. You have only 14 days to notify the courts that you plan to appeal the judgment.
If you miss these deadlines, you cannot appeal your case. You can, however, still pursue a writ of habeas corpus.
How much time do I have to file a writ of habeas corpus in Texas?
If your conviction occurred in a state court, then technically there is no time limit as to when you must file your writ. The one exception is if you want to preserve your right to have the federal court review the state court’s possible denial of your writ (not to get too technical, but this is through a petition under 28 U.S.C. §2254). In that case, you would need to file your state writ application within one year of the conclusion of your direct appeal proceedings. Basically, if the state denies you, you can try again in federal court, but only if you filed your state writ within one year of the conclusion of your direct appeal. An experienced post-conviction lawyer can help you keep track of these technical rules.
If your conviction occurred in a federal court, then you have one year from the date of the conclusion of your direct appeal to file a writ. If you declined to pursue an appeal, then you have one year, plus 14 days, from the conviction date to file your writ.
That said, regardless of which court pressed charges against you, there is good reason to act fast when it comes to filing a writ. If you wait too long, you may not be able to find any credible new evidence. Further, if you wait more than five years, the state of Texas can outright dismiss your writ based on the legal doctrine of laches, which basically states that too much time has passed to reexamine the case, and that you should’ve brought forward your complaints earlier.
Yes, sometimes writs filed many years later do have success, particularly if new evidence, such as DNA evidence of the actual perpetrator, becomes available. But in most cases, the closer that writs are filed to the date of the conviction, the greater chance they have of success.
To sum it up, here are the time limits for appeals and writs in most cases:
Appeals in Texas courts – you have 30 days to notify the courts of your intent to appeal
Appeals in federal courts – you have 14 days to notify the courts of your intent to appeal
Writs in Texas courts – there is no official time limit, but if you wait past five years, the writ may be rejected under the laches legal doctrine
Writs in federal courts – you have one year from the date of the conclusion of your direct appeal
If you or someone you know is in need of post-conviction assistance in Travis County, Hays County, Williamson County, Bastrop County, Bell County, or anywhere in Texas, the first order of business is investing in a skilled criminal defense attorney with extensive appellate and post-conviction litigation experience.
An award-winning lawyer with a passion for justice, Chris Perri has helped countless clients fight their wrongful convictions. If you need legal assistance, don’t wait any longer. Based in Austin and practicing throughout Texas, Chris Perri Law is here to fight zealously on your behalf. Contact our firm at (512) 269-0260 or www.chrisperrilaw.com to schedule your free case consultation today.