What is the difference between an appeal vs. writ of habeas corpus?
In the state of Texas, when you stand on trial for a criminal offense, and you’ve been convicted, you have certain rights of appeal.
You are allowed to file a Notice of Appeal or file a motion for a new trial, all within 30 days.
What is an Appeal?
An appeal, essentially, is when you are getting the Court of Appeals to review any errors that your attorney preserved in your trial.
It could be errors in the jury charge, or in other evidence that was used against you of your convictions.
Furthermore, it could be hearsay evidence or an admission of business records affidavit that were not proper.
Many other things can be reviewed on appeal. After the Notice of Appeal is filed, the records are prepared and sent to the Court of Appeals for the appealing process.
What you are telling the Court of Appeals is that errors occurred in this trial.
The critical distinction between a writ of habeas corpus and a direct appeal is that a direct appeal tells what has already happened in the record.
The direct appeal process does not usually help you when you’re looking at things you discovered, after the conviction.
What is a Writ of Habeas Corpus?
Also, a writ of habeas corpus process is different because you are taking issues that are not necessarily found in the record.
They’re issues that you created because you know that they happened.
Your lawyer was ineffective at presenting evidence, ineffective at objecting to evidence, ineffective at objecting to the jury charge, securing a proper jury charge, or presenting your defense properly.
The lawyer would have things that he knows that he did wrong or made mistakes on that he would need to put on the record.
What you would do is to file this writ of habeas corpus in the trial court. The trial court determines if those issues have already been litigated in the record.
They will determine if the issues were true and if they would entitle you to relief.
Then you get a hearing if those issues would entitle you to relief.
At that hearing, you put all of those things onto the record.
So this looks more like an appeal because, in an appeal, you are also allowed to address issues that have been in the record.
In a writ of habeas corpus, the record is made and forwarded to the Court of Criminal of Appeals for a decision. From there, the process appeals each of those decisions (if you’re denied in your Intermediate Court of Appeals on your direct appeal, or you’re denied at the Court of Criminal Appeals in your of the writ of habeas corpus), are appealed much in this similar way.
You made a complaint to the court about what they got wrong and how the case should have been handled differently.
There’s not much more adding to the record, at that point.
In a nutshell, those are the primary differences between an appeal and an 11.07 writ of habeas corpus here in Texas.
About The Attorney
Jacob Blizzard is board certified in both criminal law and criminal appellate law.
He regularly practices in the areas of state and federal criminal defense, criminal appeals, post conviction writs of habeas corpus.
In Texas, there are more than 100,000 attorneys licensed to practice, but only 7,450 are board certified.
In the entire State of Texas, as of the 2019 certification year, there were only 87 attorneys board certified in both criminal law and criminal appellate law, making Mr. Blizzard one of 0.087% of attorneys in Texas to hold both of those certifications.