Austin, TX asked in Appeals / Appellate Law, Criminal Law and Legal Malpractice for Texas

Q: I was charged, but no conviction, of a class A in 2017. Then, this year, I found out discrepancies. can I appeal?

I got a hold, via a court FOIA request, of my 2016 arrest records. When I got indicted and charged, I kept getting told that my charge could not get entirely dismissed because the "witness statements" said something that was too "serious" to get my much more concrete piece of evidence (a medical report showing that the supposed "victim" had ZERO INJURIES!!!!) taken more seriously. So, the most they could do was give me a way lesser charge but no conviction (AKA: deferred adjudication, which didn't give me a conviction since I managed to comply with the conditions and I was a "very low level offender"). When I got a hold of my police records, there was/were NO WITNESS/WITNESSES LISTED ON THE POLICE RECORDS!!!! Basically, I was given a bogus charge.

1 Lawyer Answer
Kiele Linroth Pace
Kiele Linroth Pace
  • Criminal Law Lawyer
  • Austin, TX
  • Licensed in Texas

A: The best time to fight criminal charges is BEFORE you take a plea. The only way to get Deferred Adjudication is to enter a plea of Guilty or No Contest (which is the same as Guilty with regard to a criminal case anyway.) In almost all cases, a defendant only has 30 days to start the appeals process. There are some exceptions, but I doubt any of them would apply to the situation you described. You could hire a criminal appeals specialist to get an expert opinion, but that will probably cost at least $25K and I suspect the answer would still be "no."

The police records are not new evidence because they were available to you before you took the plea. Every defendant in Texas has had access to the evidence in advance, via his or her attorney, since January 1, 2014. (See section 39.14 of the Texas Code of Criminal Procedure.) You could have taken the case to trial and made the prosecution prove every element of the offense beyond a reasonable doubt, but you took a plea instead and now have buyer's remorse.

You are essentially saying that you now disagree with the advice that you received from your criminal defense attorney. Although everyone has a right to an attorney, that doesn't mean you have a right to a GOOD attorney. You have to pay for that. It is possible for an attorney to perform so poorly as to be constitutionally ineffective, but that generally applies to situations where the attorney fails to do even the most basic things, not when their strategy or advice looks bad in hindsight. In other words, having NO strategy might be "ineffective assistance of counsel" but having a losing strategy is not. If you had appealed on this basis within the 30 days it is likely that the court would say something like "the attorney got a felony reduced to a misdemeanor, so they obviously had a strategy."

Anyway, getting back to the meat of your question, which is your criminal history... The records of almost all misdemeanor deferred adjudication cases can be sealed with an Order of Nondisclosure two years after successful completion of community supervision, assuming you had no new convictions or deferred adjudications during the period of supervision or during the two-year waiting period. Some types of cases don't even require a two-year waiting period. The only exception is cases involving Family/Dating/Domestic Violence... those cases are not eligible for an Order of Nondisclosure.

There is one other possibility which is a pardon from the Governor of Texas. If you receive such a pardon then you can petition for an Expunction, which actually destroys the records rather than simply sealing them. Unfortunately, pardons are quite rare and I don't think it's been long enough since the alleged offense for you to get one. You can probably find out the timelines by downloading the appropriate application from the website for the Texas Board of Pardons and Paroles. You should get the form called "executive clemency" and there is a separate application form to use for Deferred Adjudication cases than for regular convictions. It is super important to follow the instructions EXACTLY as they are written because up to 1/3 of all pardon applications go straight to the trash because the applicant didn't follow instructions.

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