Motion in Arrest of Judgment
Before a person may be tried for a crime, the state must file an “information” or an “indictment.” An information is used to charge a defendant with a misdemeanor and sets out the facts supporting the charge. It is filed by the prosecuting attorney and supported by a sworn statement. An indictment charges a defendant with a felony. An indictment is determined by a grand jury and sets out the facts supporting the charge.
A defendant convicted of an offense upon an information or indictment may make, either orally or in writing, a motion in arrest of judgment. A motion in arrest of judgment must be based on one of the following reasons:
- The indictment or information is subject to an exception on substantive grounds
- The verdict was substantially defective in relation to the indictment or information
- The judgment is invalid for some other reason related to the indictment or information
A motion for arrest of judgment challenges the validity of the information or indictment itself or the judgment in relation to the information or indictment. An information may be invalid if not signed by the prosecuting attorney. An indictment may be invalid if, for example, it did not include all the elements of the crime with which the defendant was ultimately convicted. The motion must be made in the trial court no later than thirty (30) days after the court pronounces the sentence.
If the court grants the motion to arrest the judgment, the conviction is vacated and the defendant is put in the position he or she was in prior to the information or indictment. A judge may, however, keep the defendant in custody or fix bail if the court determines that the evidence at the trial showed that the defendant may be convicted on a proper indictment or information or on a proper verdict in relation to the indictment or information.
A motion in arrest of judgment is often made in conjunction with a motion for a new trial.
You may be eligible for release, a sentence modification, or a new trial. To learn about whether a Writ of Habeas Corpus can help you or a loved one, contact Spolin Law P.C. at (866) 716-2805 for a free consultation.
- Motion in Arrest of Judgment
- Motion for a New Trial
- Direct Appeal of a Conviction
- Habeas Corpus
- Judicial Clemency
- Summary
Motion for a New Trial
Following a trial resulting in a guilty verdict, a defendant may seek to have the court set aside a finding or verdict of guilt and order a new trial. Such a motion must be filed, at the latest, within thirty (30) days of sentencing, or the right to request a new trial is lost. The motion must be presented to the judge who actually presided over the trial within ten (10) days of the filing of the motion.
A motion for a new trial must be based on one of the reasons set forth in the Texas Rules of Appellate Procedure. No other circumstance will support a motion for a new trial. A motion for a new trial must be based on one of the following reasons:
- The defendant was tried in absentia (when he or she was not present) or was denied counsel. This reason does not apply if the conviction was for a misdemeanor offense that resulted in the imposition of a fine.
- The court misinformed the jury of the law or made a material error that likely injured the defendant’s rights
- The jury or a juror engaged in misconduct, including:
- Deciding the case by lot or by means other than a fair expression of the jury’s opinion
- A juror’s participation in corrupt activity, such as accepting a bribe to find the defendant guilty
- Receiving evidence other than that produced at trial after retiring to deliberate
- Talking with anyone other than the other jurors about the case
- Intoxication so severe that it influenced the juror’s decision
- Other misconduct that resulted in the defendant not receiving a fair and impartial trial
- A material defense witness was kept from testifying by force, threats, or fraud, or evidence tending to establish the defendant’s innocence was intentionally destroyed or withheld
- The verdict was contrary to the evidence and the law
A new trial must be granted when material evidence favorable to the defendant is discovered following the trial.
If the court grants the motion, the conviction is vacated, and the case is restored to the way it was prior to the trial.
The Procedure for filing a petition
A post-conviction petition for writ of habeas corpus is returnable in the Court of Criminal Appeals. This means that the Court of Criminal Appeals will ultimately decide whether to grant the petition for writ of habeas corpus.
A writ of habeas corpus is filed in the court that convicted the applicant. The court will then forward the writ to the State, which has 15 days to file an answer. If the State does not respond, the Court assumes that the State denies the allegations in the petition.
After the State files its answer, the court has 20 days “decide whether there are controverted, previously unresolved facts material to the legality of the applicant’s confinement.” Article 11.07(3)(c). If there are no issues, the trial court will forward the file to the Court of Criminal Appeals.
“If the court decides that there are controverted, previously unresolved facts material to the legality of the applicant’s confinement,” then, within 20 days of receipt of the State’s answer, the Court will designate the issues to be resolved and order the State to reply. The court is permitted to “order affidavits, depositions, interrogatories, additional forensic testing, and hearings, as well as using personal recollection.” Article 11.07(3)(d). A hearing may be held.
After gathering evidence and/or holding a hearing, the trial court will make findings of fact and conclude whether to award habeas relief or not. The trial court then forwards the file, along with the findings of fact and conclusions of law, to the Court of Criminal Appeals, which will ultimately determine whether to award habeas relief.
- Motion in Arrest of Judgment
- Motion for a New Trial
- Direct Appeal of a Conviction
- Habeas Corpus
- Judicial Clemency
- Summary
Direct Appeal of a Conviction
Another way to vacate a conviction is on direct appeal of the verdict. To read a more in-depth article on Texas direct appeals, read the Texas Direct Appeal Guide.
Every person convicted of a crime in Texas has the right to have the judge certify the right to appeal and to appeal the conviction. If the defendant was convicted after pleading guilty or no contest or entered into a plea agreement with the prosecutor, he or she may appeal only issues related to the jurisdiction of the trial court or issues raised by motion and ruled on by the court prior to the trial. Such a defendant may request the court to grant him or her the right to appeal. Every other defendant may appeal a conviction as of right.
On appeal, the court does not hear new evidence. Its decision is based solely on the record of the trial. The appellate court examines whether the evidence presented at trial was legally sufficient to support the verdict and whether the defendant was provided a fair trial. To determine the fairness of the trial, the court examines rulings made by the trial court, and, if it determines that an error was made, whether the rights of the defendant were substantially impacted. Another basis for appeal is the ineffective assistance of trial counsel; that is, an allegation that the conduct of the attorney representing a defendant fell below certain professional standards.
Before filing an appeal, a defendant must file a motion for a new trial if he or she wishes to refer to facts not contained in the record. If the defendant does not move for a new trial, the notice of appeal must be filed within thirty (30) days of the day the court pronounces the sentence. If the defendant timely files a motion for a new trial, he or she has ninety (90) days to appeal.
If the appellate court finds that sufficient evidence did not support the verdict or that errors in law were made that substantially prejudiced the defendant’s rights, the appellate court may return the case to the trial court for a new trial or may discharge the defendant. In either case, the original conviction is vacated.
- Motion in Arrest of Judgment
- Motion for a New Trial
- Direct Appeal of a Conviction
- Habeas Corpus
- Judicial Clemency
- Summary
Habeas Corpus
Another method used to vacate a felony conviction in Texas is to file what is known as a motion for a writ of habeas corpus, which means “produce the body.” A more detailed article about Texas Writs of Habeas Corpus is viewable here.
In a motion for habeas corpus, a defendant in custody asks the court to issue an order or writ requiring the entity holding the defendant in custody (the state) to “produce” the defendant and show a valid reason for the custody. If the state is unable to demonstrate a valid, legal reason for the detention, the court may release the defendant from custody or may overturn the conviction and remand the case for a new trial.
Habeas corpus is not a second chance for a direct appeal of a conviction. A motion for habeas corpus must be based on a claim that (1) a violation of a federal constitutional right led to the conviction, or (2) the convicted person is “actually innocent” of the crime for which he or she was convicted. The standard for proving either of these claims is extremely high. In proving actual innocence, the defendant must produce new evidence other than that available at the trial stage to show actual innocence, such as DNA evidence. The court weighs the new evidence against the evidence presented at trial to determine whether the jury would have found differently had it had the new information on actual innocence.
If the court hearing the motion for habeas corpus determines that the defendant is actually innocent of the crime of which she or he was convicted, it will order the defendant to be released. If it finds that the conviction resulted from a violation of a federal constitutional right, it will send the case back for a new trial. In either case, the original conviction is vacated.
- Motion in Arrest of Judgment
- Motion for a New Trial
- Direct Appeal of a Conviction
- Habeas Corpus
- Judicial Clemency
- Summary
Judicial Clemency
One other method of having a conviction vacated in Texas is to obtain judicial clemency. Judicial clemency is not the same as a pardon from the governor. Only persons sentenced to probation following a conviction, whether by plea or trial, may apply for judicial clemency. Persons convicted of certain crimes are ineligible for clemency, such as a person convicted of (1) an intoxication-related offense, (2) an offense requiring registration as a sex offender, or (3) a capital murder, murder, aggravated robbery, or a violent crime that results in injury to a child, an elderly person, or a disabled person.
The application, made to the trial court in which the person was convicted, states that the defendant has been completely rehabilitated and is ready to resume his or her life as a law-abiding citizen and requests judicial clemency to vacate the conviction.
The motion is often made in conjunction with a motion to terminate probation early. If the person on probation has served two years or one-third of the probation, whichever is less, he or she would be entitled to request the court to end the probation early and grant clemency. A person on probation would also be entitled to request clemency at the end of the entire probationary period. The time for filing a request for clemency following the termination of probation is unclear, with some courts indicating that the request must be filed within thirty (30) days of the end of the probationary period.
A person on probation does not have the right to judicial clemency simply because he or she has complied with all the terms of the probation. The decision to grant or deny clemency is completely within the judge’s discretion. If clemency is granted, it has the legal effect of dismissing the information or indictment against the defendant; in other words, vacating the conviction.
- Motion in Arrest of Judgment
- Motion for a New Trial
- Direct Appeal of a Conviction
- Habeas Corpus
- Judicial Clemency
- Summary
Summary
In Texas, a motion to vacate a conviction is made in conjunction with other substantive processes, such as a motion for a new trial, an appeal, or a request for judicial clemency. While there are several means to have a conviction vacated, each has its own timeline and substantive requirements. Each method is complex and provides no guarantee of success. A person seeking to have a conviction vacated should seek the advice of an attorney experienced in post-conviction procedures and motions to have the best chance to have the conviction set aside.
Spolin Law P.C.’s success rate is based on our strong desire to win each case we handle. Call us at (866) 716-2805, or reach out online to learn how we can handle your Texas or Federal Writ of Habeas Corpus.