There are a few lesser-known grounds in an 11.07 Writ that are very important to know about.
You’ve heard me talk a lot of times about some of the most common grounds: ineffective assistance of counsel, prosecutorial misconduct, due process violations.
Well, today I wanted to write about a few of the lesser-known grounds that you may not know about or you may not have considered.
One of those is double jeopardy. For example, if double jeopardy is clear on its face, you were subsequently charged and convicted for a crime that you had already stood trial for, and it could be a situation where you have a lesser included offense that you stood trial for a second time.
Guilty pleas (or an involuntary plea is what we call it) is basically where you were ill-advised, either by the court, your attorney, or it could be all parties involved.
They believed the facts or the law to be different than they were. You may have been advised by your attorney or the judge in your case about something wrong with your case.
For example, you may have not been told that you would be required to register as a sex offender if you pled guilty, and then you subsequently were required to register as a sex offender.
You may have been told that you would be parole-eligible at some certain period when you were not actually going to be. You were going to have to serve half time, do flat time, or something of that nature.
Those are a couple of examples, and there are many more examples of where you could have been improperly advised regarding your rights, and the waivers that you make when you plead guilty, and the consequences of pleading guilty.
Another lesser-known ground is the immigration situation. If you were not told that you would be deported as a result of pleading guilty in the district court, and then subsequently proceedings were brought against you for deportation or denial of citizenship, then you could be eligible for relief.
The right to appeal is another uncommon ground; however, it’s actually a pretty common one among the uncommonly asserted grounds I’m writing about here.
You have the right to appeal after your conviction, even if you plead guilty and did an open plea where you did not have a plea bargain, so long as you did not have an actual plea bargain where you got a set sentence and the judge followed that plea bargain while also not giving you an increased sentence, then you have the right to appeal in every case. You have to be advised of that right of appeal. If you:
- Were not advised of your right to appeal
- Told your attorney that you wanted to appeal, but he did not do it for you, or you advised the court that you needed an indigent defense attorney to represent you because you could not afford to pursue an appeal
Then you could assert these as grounds in your 11.07 Writ. You can use all of these grounds to file for a new appeal. It’s the same for a petition for discretionary review.
Indigent defendants are only entitled to court-appointed counsel in Texas for the first level of appeal. That’s the intermediate level of appeal. It’s in the 1st through the 14th Courts of Appeals.
Once you get past that and your conviction is affirmed, you have the right to file a petition for discretionary review prose on your own. However, if your lawyer does not advise you of your right to file a pro se petition for discretionary review, then you can file a writ on that ground as well.
Another lesser-known ground is an illegal sentence.
An illegal sentence can be challenged at any time you were sentenced outside of the zone for your offense. Somebody could have mistakenly believed you were charged with a first-degree Felony and they sentenced you to 25 years, when, really, your case was a second-degree Felony and the maximum punishment was 20 years.
Last for today there’s the presentation and perjured testimony, where the prosecution knowingly presented testimony they knew to be false.
This is another ground you can file that ties in with the due process ground. Those are some of the more uncommon grounds that you don’t see very often, but they’re certainly ones worth considering when you look at your case and how you may be able to use them to have a better shot at freedom.
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.