A conviction gives the State a judgment. It does not give the State the last word. Texas law provides two tracks for challenging a conviction or sentence after trial: direct appeal and habeas corpus. They do different work. They go to different courts. Each has its own deadlines.
The track that fits depends on what went wrong, when, and where the case stands now. This is the map.
Direct appeal reviews the trial record for legal error.
A direct appeal asks a court of appeals to review the reporter’s record and clerk’s record for legal errors the trial judge made. No new evidence. No witness testimony. The reviewing court reads the records, reads the briefs, sometimes hears oral argument, and issues an opinion.
Direct appeals go to one of Texas’s 14 intermediate courts of appeals, assigned by county. From the court of appeals, a party can petition the Texas Court of Criminal Appeals for discretionary review. The Court of Criminal Appeals grants less than one in twenty.
Direct appeal can win on preserved error: an objection made at trial that the judge ruled on, or a ruling so flawed that preservation rules are excused. It cannot develop new evidence or reach claims that depend on matters outside the record. Ineffective assistance of counsel, for example, almost always requires habeas corpus.
Deadline: 30 days to file a notice of appeal, 90 days if a motion for new trial is timely filed. Miss the deadline and the direct-appeal track closes.
Bennett & Bennett handles direct appeals in all 14 Texas courts of appeals.
Habeas corpus goes outside the record.
Habeas corpus asks a court to declare the applicant’s confinement unlawful. Unlike a direct appeal, habeas is not limited to the trial record. An applicant can develop new evidence: affidavits, expert opinions, testimony, documents never admitted at trial. Chapter 11 of the Texas Code of Criminal Procedure governs postconviction habeas, and which article applies depends on the applicant’s status.
Article 11.07 governs most felony postconviction habeas.
Article 11.07 is the main route for someone serving a felony sentence who is not on community supervision. The application is filed with the convicting court. The convicting court develops the record: affidavits from trial counsel, the State’s response, evidentiary hearings when needed, findings of fact. The Texas Court of Criminal Appeals has final say.
Common grounds for 11.07 relief include ineffective assistance of counsel, Brady violations, false or recanted testimony, newly discovered evidence, and actual innocence.
11.07 is the route for claims the direct appeal could not reach. See Texas Post-Conviction Attorney.
Article 11.071 applies to capital cases.
Article 11.071 governs habeas corpus when the applicant is under a sentence of death. The timelines, the appointment rules, and the procedural posture are different from 11.07. The Court of Criminal Appeals has primary responsibility throughout.
Article 11.072 applies when the applicant is on community supervision.
Article 11.072 is the route for someone serving community supervision: deferred adjudication or regular probation. The convicting court decides the application and issues a final order. That order is appealable to the court of appeals for the county in which the conviction occurred, and the Court of Criminal Appeals reaches the case only through discretionary review.
The substantive grounds are largely the same as 11.07. The court-system route differs: 11.072 passes through the court of appeals. 11.07 does not.
Pretrial habeas is available before a case is tried.
Before conviction, habeas is available under article 11.08 (felony) and article 11.09 (misdemeanor). Pretrial habeas can challenge detention itself, raise facial or as-applied constitutional challenges to the statute under which a person is charged, or test a double-jeopardy bar to prosecution. A denial from the trial court is appealable to the court of appeals.
For an example from our practice, see Argument in a Pretrial Habeas Appeal.
The tracks in one view.
- Direct appeal: record-based. Court of appeals, then discretionary review by the Court of Criminal Appeals.
- 11.07 (felony, not on probation): convicting court develops the record; Court of Criminal Appeals decides.
- 11.071 (capital): Court of Criminal Appeals has primary jurisdiction.
- 11.072 (community supervision): convicting court decides; appealable to the court of appeals.
- 11.08 / 11.09 (pretrial): convicting court decides; appealable to the court of appeals.
How to start.
For a direct appeal or pretrial habeas, call 713-224-1747.
For postconviction habeas (article 11.07 or 11.072), there is a $500 consultation fee, which covers a review of the procedural history and a discussion of potential grounds for relief. There are no free postconviction consultations. Pay the fee to get started, then fill out the questionnaire.