You’ve probably read my writings before about how ineffective assistance of counsel is one of the most powerful grounds in an 11.07 Writ of Habeas Corpus application.
That’s why today I wanted to walk you through some examples of the types of Ineffective Assistance of Counsel claims that can be used as a ground for the 11.07 writ of habeas corpus process her in TExas, as well as give you some case names where these claims were used.
One of the most versatile and common of these claims is the attorney’s failure to adequately present expert testimony to a jury.
This type of claim was recognized in Ex Parte Ard. Another one is the attorney’s failure of trial counsel to investigate, present mitigating evidence, show past abuses as a child, whether it be sexual abuse or physical abuse in the sentencing phase for a capital murder case.
This type of claim is called Ex Parte Gonzales.
Ex Parte Mesquita is the attorney’s failure to investigate information that someone else had committed the crime.
After that there is Rhinelander, which is the attorney’s failure to present competent medical evidence that would have supported the defendant(s) in the case, and also Ex Parte Varelas, which occurs if the defense counsel failed to request a limiting instruction, specifically dealing with extraneous offenses used in the case against the defendant(s).
In one situation the state had offered some other crimes or bad acts in the case, and the attorney was obligated to request a limiting instruction so that the jury would only use that information. If they believed it beyond reasonable doubt and only for the specific purposes allowed, by the rules of evidence if he didn’t request it then it would be considered Ineffective Assistance of Counsel.
Another example is Woods v. State, where an attorney had a substantial amount of information related to his client’s mental health issues, and how that may have played a role in his case. The failure to investigate that mental health may have contributed to the offense conduct.
Then there is Ex Parte Lemke, or the failure of an attorney to convey a plea offer in a case where a plea offer had been made and it had not been conveyed to the client is an omission that’s considered Ineffective Assistance of Counsel.
Another example is when an attorney is talking about evidence that doesn’t exist, because maybe he confused a case with another case, or just made something up in order to get his client to plead guilty.
This occurred in the Melton v. State case, when the attorney failed to investigate the facts of the robbery case, telling the client that a videotape existed that showed him committing the robbery, when in fact no videotape existed that would show such a thing and the client had a history of suffering from alcoholic blackouts.
Ultimately, he pleads guilty because of this misinformation by the attorney.
Another claim is Ex Parte Briggs, which happens when an attorney is ineffective for failure to thoroughly investigate medical evidence before advising a client to plead guilty on the injury to a child case.
The next claim is Ex Parte Welch when the counsel was ineffective for failing to file an application for probation when the defendant both wanted it and was eligible for it, it falls under this claim.
Next, we have Ex Parte Zepeda, which is when the trial counsel is ineffective for failing to request an accomplice instruction which would have prevented the jury from convicting the defendant because the only evidence in the case was accomplice testimony.
Second to last there is Ex Parte Crow when the council did not inform the defendant on appeal. This is an appellate counsel issue, and they did not inform the defendant that he had the right to file a petition for discretionary review in the Court of Criminal Appeals prose.
Lastly, we have Ex Parte Drinkard, which occurs when a counsel is ineffective for failing to object to the indictment because they were based on an invalid theory of felony capital murder.
Those are just some examples of the Ineffective Assistance of Counsel grounds that courts have granted relief on.
There are many others out there, but these are some of the ones our law firm has covered in particular.
If you think that these may apply in your case, you should look into the cases I have written about here and think about whether pursuing the 11.07 writ with those grounds would be in your best interest.
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.
