What Is the Difference Between an Appeal and a Writ of Habeas Corpus in Texas?
A direct appeal reviews only what the clerk’s record and the reporter’s record show, and it begins with a notice of appeal filed within 30 days after sentencing, or 90 days if the defendant files a motion for new trial. A writ of habeas corpus under article 11.07 or 11.072 of the Texas Code of Criminal Procedure lets a convicted person raise claims that depend on facts outside that record and build a new record to prove them. The law gives most people one habeas application per conviction, so the first one has to include every claim.
| Direct appeal | Article 11.07 application | Article 11.072 application | |
|---|---|---|---|
| What the court reviews | The clerk’s record and reporter’s record (Rule 34.1) | The application, the State’s answer, and affidavits, depositions, testing, and hearings the convicting court orders (§ 3(d)) | The application, any answer, and affidavits, depositions, or a hearing the trial court orders (§ 6(b)) |
| Deadline | 30 days after sentencing; 90 with a timely motion for new trial (Rule 26.2(a)) | None stated in the article | None stated; the applicant must be, or have been, on community supervision (§ 2(b)) |
| Where filed | Notice of appeal with the trial court clerk (Rule 25.2(c)(1)) | Clerk of the convicting court (§ 3(b)) | Clerk of the court that imposed community supervision (§ 2(a)) |
| Who decides | The court of appeals, then the Court of Criminal Appeals on discretionary review (Rule 66.1) | The Court of Criminal Appeals, on the convicting court’s findings (§§ 3, 5) | The trial court, by written order, subject to appeal (§§ 6(a), 8) |
| Typical claims | Errors the record shows: evidence rulings, the jury charge, sufficiency | Ineffective assistance, involuntary plea, new evidence of innocence, false evidence, a lost appeal | The same claims in a probation case; constitutional challenges to conditions (§ 3(c)) |
Where are you now?
| Where you are | What usually comes next | Time limit | Read more |
|---|---|---|---|
| Just sentenced after a trial | A notice of appeal, and possibly a motion for new trial | 30 days after sentencing; 90 with a timely motion for new trial | How long you have to appeal |
| Pleaded guilty | Depends on whether there was a plea bargain or a waiver of appeal | The same 30 or 90 days | Appeal after a guilty plea |
| Probation revoked or guilt adjudicated | A notice of appeal | 30 days after sentence is imposed; 90 with a timely motion for new trial | Probation revocation appeals |
| Notice of appeal never filed | A motion to extend time within 15 days after the deadline; after that, an article 11.07 application for an out-of-time appeal | 15 days for the extension | See below on this page |
| Lost in the court of appeals | A petition for discretionary review | 30 days after the judgment or the ruling on the last timely motion for rehearing | Petition for discretionary review |
| Appeal over, in prison on a final felony conviction | An article 11.07 application | None stated in the article, but the federal one-year period may be running | Texas habeas corpus |
| On community supervision or deferred adjudication | An article 11.072 application, unless an appeal could give the same relief | None stated in the article | See below on this page |
The direct appeal is limited to the record.
Under Texas Rule of Appellate Procedure 34.1, the appellate record consists of the clerk’s record and, if necessary to the appeal, the reporter’s record. A claim that depends on something the record does not show, such as a witness trial counsel never interviewed or a deal the prosecutor never disclosed, needs a different procedure. The appeal also has strict deadlines, which our page on how long you have to appeal in Texas lists.
A writ of habeas corpus can build a new record.
A habeas application puts before the court facts missing from the trial record, and asks the court to find them true. Under article 11.07 the convicting court may order affidavits, depositions, interrogatories, additional forensic testing, and hearings, and it may rely on the judge’s own recollection. Art. 11.07, § 3(d). The claims that most often need such proof are:
- ineffective assistance of counsel,
- a guilty plea that was not knowing and voluntary,
- new evidence of innocence, and
- a conviction obtained with false evidence.
Where is an article 11.07 application filed, and who decides it?
An application challenging a final felony conviction, other than a death sentence, is filed with the clerk of the trial court where the conviction was obtained. If the conviction was appealed, it becomes final for this purpose when the court of appeals issues its mandate. Ex parte Johnson, 12 S.W.3d 472, 473 (Tex. Crim. App. 2000). Art. 11.07, §§ 1, 3(b). The application must be on the form the Court of Criminal Appeals prescribes, which the district clerk provides free on request. Tex. R. App. P. 73.1(a), (b). A writ then issues by operation of law, returnable to the Court of Criminal Appeals, and the State has 30 days to answer. Art. 11.07, § 3(b).
The convicting court decides whether there are “controverted, previously unresolved facts material to the legality of the applicant’s confinement.” Art. 11.07, § 3(c). If there are, it designates the issues, resolves them, and sends the application, the evidence, and its findings to the Court of Criminal Appeals, which decides whether to grant relief. Art. 11.07, §§ 3(d), 5. Because the Court of Criminal Appeals rules on the convicting court’s findings, what happens in the convicting court decides most writs.
The first application is usually the only one.
Once an initial application is finally decided, a court may not consider a later application challenging the same conviction unless it shows specific facts establishing either that the claims could not have been raised before because their factual or legal basis was unavailable, or that, but for a federal constitutional violation, no rational juror could have found the applicant guilty beyond a reasonable doubt. Art. 11.07, § 4(a). Article 11.072, section 9 has a similar bar. A claim left out of the first application is usually lost.
Probation and misdemeanor cases use different articles.
A person placed on community supervision, including deferred adjudication, in a felony or a misdemeanor case, files under article 11.072 with the clerk of the court that imposed it. Ex parte Sinclair, 693 S.W.3d 346, 352 n.8 (Tex. Crim. App. 2024). Art. 11.072, §§ 1, 2(a). That article is unavailable for relief the applicant could have obtained by appeal. Art. 11.072, § 3(a). The trial judge decides the application by written order, and the losing side may appeal. Art. 11.072, §§ 6(a), 8. After a final misdemeanor conviction without community supervision, the applicant applies to the judge of the convicting court. Art. 11.09(b).
A missed notice of appeal can sometimes be fixed through article 11.07.
For 15 days after the notice-of-appeal deadline, the court of appeals may extend the time if the defendant files both the notice of appeal and a motion to extend. Rule 26.3. After those 15 days, a person with a felony conviction can ask the Court of Criminal Appeals for an out-of-time appeal through an article 11.07 application. One ground is that the trial lawyer failed to file a notice of appeal the defendant wanted filed. Ex parte Axel, 757 S.W.2d 369, 374–75 (Tex. Crim. App. 1988).
The federal habeas deadline keeps running.
A state prisoner who may later seek federal habeas relief faces “a 1-year period of limitation,” which generally runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The year stops running while “a properly filed application for State post-conviction or other collateral review” is pending. 28 U.S.C. § 2244(d)(2). Every day between the date the judgment becomes final and the filing of the state writ counts against that year.
Talk to a post-conviction lawyer before anything is filed.
Mark Bennett is Board Certified in both Criminal Law and Criminal Appellate Law by the Texas Board of Legal Specialization, one of fewer than fifty Texas defense lawyers holding both certifications, and handles criminal appeals and writs of habeas corpus throughout Texas.
If you or someone in your family is considering an appeal or a writ, email us at [email protected]. Tell us the county, the offense, the date of sentencing, and whether an appeal was filed and decided.