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Dwayne B.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 32331
Experience:  Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
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In Texas, a person was convicted of agg rob, was on deferred

Customer Question

in Texas , a person was convicted of agg rob, was on deferred adult adjudicated probation .. and had one prior violation that was thrown out.. they were sentenced to 8 years tdc, parole eligibile in 2018. Is there any way to get a reduction in the sentence, file an appeal, or anything at all? This person was in juvenile trouble prior to the adult probation at the age of 17, he caught the agg rob charge at the age of 20 (last year) is there anything that can be done?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Dwayne B. replied 1 year ago.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Also, I can only answer the questions you specifically ask and based on the facts that you give so please be sure that you ask the questions you want to ask and provide all necessary facts. Further, if you get a message asking if you want to do additional services like a telephone call that message is automatically generated by the website and is not sent from me. I, like most of the experts in the Legal categories, do not do telephone calls due to issues with State Bar rules and other concerns.

If it is still within the time limits (generally about 30 days from the date the judgment was signed) then the case can be appealed. After that it can't.

If the time for appeal has passed without an appeal being filed then the only way to challenge the case would be through a Writ of Habeas Corpus but you would need to visit with a lawyer who does those and let them go over all of the Statement of Facts and the records to see what the likelihood of there being a reversal was.

Other than those two, Texas doesn't have any other method to reduce sentences or anything else.

Customer: replied 1 year ago.
can the Writ be used to lower his charge , or is it too late for that?
Customer: replied 1 year ago.
take it from agg robbery to robbery, is what i'm implying
Expert:  Dwayne B. replied 1 year ago.

No, it can't be used for that. All it can be used for is to reverse the sentence and get it sent back for a new trial or dismissed, although the dismissal is incredibly unlikely.

Customer: replied 1 year ago.
is there a possibility that the new trial may be more likely to add to the sentence or simply uphold the original sentence? (success rate)
Expert:  Dwayne B. replied 1 year ago.

There is no way I can answer that since I don't know enough about the case to give it a realistic appraisal. Every case is different.

Customer: replied 1 year ago.
you're right.. okay, he was convicted in October of last year.. that said, do you think laches will apply?
Expert:  Dwayne B. replied 1 year ago.

No, I wouldn't see why. Laches is almost exclusively a civil issue. Criminal cases are decided based on statutory timelines as opposed to equitable issues.

Customer: replied 1 year ago.
the attorney had him take the plea bargain and if memory serves me correctly my son agreed and he is ineligible to file an appeal (the specifics are slowly coming back to me) can he file the writ with that type of agreement in place?
Expert:  Dwayne B. replied 1 year ago.

It is just another issue he has to overcome. A Writ of Habeas Corpus isn't exactly an appeal but you can expect the DA to argue he has waived the right. Normally the Courts of Appeals will allow a person to pursue a writ though if at all possible.

Customer: replied 1 year ago.
In this case, would it be feasible to have an attorney do a case review before agreeing to do the writ of Habeas Corpus?
Expert:  Dwayne B. replied 1 year ago.

Yes, you would want to hire them to look the case over, read the transcripts, motions, discovery file, etc. before actually filing for the writ.

Customer: replied 1 year ago.
If I draw up the paperwork can I file it on his behalf?
Customer: replied 1 year ago.
petition
Expert:  Dwayne B. replied 1 year ago.

No. That's practicing law without a license and is a crime in Texas. In addition, it's not something that a layman is going to be able to draw up themselves. There are no forms available since each one is unique and it requires a different examination and analysis.

Customer: replied 1 year ago.
does this writ have to show legal or factual error , only?
Expert:  Dwayne B. replied 1 year ago.

They usually show legal errors but they can be used to develop factual issues as well. They are kind of "catch all" tools but very few lawyers do them because they are incredibly complicated and much more complex than regular appeals.

Customer: replied 1 year ago.
the forms are provided to prisoners for filing purposes .. what is the difference and if applicable would he be able to be appointed counsel? Attorneys charge a huge fee (upwards of 15-22k) for these types of filings.
Expert:  Dwayne B. replied 1 year ago.

They usually don't appoint counsel for Habeas mattes unless it is a death penalty case. The "forms" are just blanks, essentially with the headings.

Expert:  Dwayne B. replied 1 year ago.

If your question has been answered completely then I'd offer my best wishes to you and ask that you please not forget to leave a Positive Rating so I receive credit for my work.

Of course, please feel free to ask any follow up questions in this thread.

Customer: replied 1 year ago.
if he is incarcerated for the charge concerning the probation and the new crime will this (Habeas Corpus) be effective?
Customer: replied 1 year ago.
as I stated before , he was on deferred adjudicated probation (which was really theft but the purse was in a vehicle and the owner of the vehicle was fighting with someone outside the vehicle at any rate the inmate was charged with it and that is done) it is still a part of his sentence for the agg robbery charge he encountered two years later. The sentence runs concurrent, I believe, on the tdc website it has 8 years for all the charges
Customer: replied 1 year ago.
In Texas, see Ex parte Padgett, 230 S.W.2d 813, 814 (Tex. Crim. App. 1950) (holding prisoner
confined under two different sentences, only one challenged in his habeas petition, was not entitled to
discharge on a writ of habeas corpus).
Customer: replied 1 year ago.
You may use a habeas petition to challenge enhancement of your sentence. Enhancement
refers to the increased time given to habitual offenders. To challenge enhancement, you must
prove that the current conviction or one of the earlier convictions used for enhancement was
void. " can this be used in his defense regarding the agg portion of the charge?
Customer: replied 1 year ago.
continued.. "For instance, you may petition the court for a writ of habeas corpus on the
ground that your sentence should not have been enhanced because the indictment on which
your earlier conviction was based was defective." I am asking these things so that I wont be railroaded , here in texas attorneys are actually taking money and still sending people off .. this isn't opinion it's facts.. they are telling people what they want to hear and not following through as they should.
Expert:  Dwayne B. replied 1 year ago.

if he is incarcerated for the charge concerning the probation and the new crime will this (Habeas Corpus) be effective?

It usually will apply to the original charge but there could be a habeas for both charges/crimes.

First, that's an old opinion and I haven't run the case law to see whether it is still applicable and been modified but I suspect it hasn't been since all it is saying is that if you get a reversal on one charge but are in prison in multiple charges you have to remain in prison. That's what the law should be and what I thought it was.