Most appellate practitioners deal with direct appeals from trial court rulings. But criminal practitioners know that direct appeals are only part of the process. At the Texas Court of Criminal Appeals, writ practice takes up a large portion of the docket. Todd Smith and Jody Sanders sit down with an expert on writ practice, Michael Falkenberg, Supervising Attorney at the Court of Criminal Appeals. Michael overviews the types of writs the Court considers and how the process works. He also explains how technological innovations have contributed to innocence cases, particularly when new evidence emerges years after a criminal trial. He also shares some of the more interesting writs he has encountered in his legal career.

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Extraordinary Writs in Criminal Cases | Michael Falkenberg

We are jumping back into our focus on Criminal Law that we have been pursuing for a while. Our guest is Michael Falkenberg, who’s the supervising attorney of the Texas Court of Criminal Appeals and maybe the name that came up from pretty much every criminal guest we have had on who said, “This is the guy you need to talk to. He knows a lot about a lot.” We are really excited to have you on, Michael. Thank you so much for joining us.

Thanks for having me. I’m a loyal follower and a fan of your show. I’m a long-time listener and a first-time caller.

We are really glad you are here. For our audience, tell us a little bit about yourself, your background and how you got where you are.

I grew up in Seguin, just south of San Marcos near San Antonio. I went to undergrad at a small liberal arts school called Muhlenberg College in Pennsylvania. I came back after that because I had a liberal arts degree, which I very much enjoyed. I know I wanted to go back to school for something but I didn’t know if it could have been history, philosophy or literature. I like all that stuff, and I ended up working in a record store for five years.

While I was an undergrad, I was a DJ on a school radio station, which is all I did, to be honest with you. I was truly a slacker in San Marcos for five years. At some point, I decided I’ve got to go back to school. I’ve got to do something. Law school had always been in the back of my mind and I thought, “What the heck? Nothing ventured, nothing gained.” I didn’t really know much about it. I just thought it seemed like the thing that would be good for me.

I went to St. Mary’s in San Antonio and it was one of the best things I ever did in my life. I was a guy in law school who liked every class. I loved mortgages and all of the constitutional classes. I enjoyed secured transactions. I like property. I would love to be a contracts professor. That would be great, but I wanted to be involved in constitutional law litigation. I have always liked the idea of being a criminal defense lawyer, but I didn’t have the guts to hang out my own shingle, deal with all the uncertainty, pay back law school loans and all that.

I found a public defender office in Huntsville. It has been around for a long time. A lot of people don’t know about it. It’s called State Counsel for Offenders. What they do is defend prisoners who are charged with committing new crimes while they are in prison. Those cases happen in the county where they are living in prison, like Brazoria County, Coryell County, Tennessee Colony, and Bowie County. You go all over the state.

You defend these cases that occur in prison, whether it’s an assault or they’ve got drugs, for a while having a cell phone was illegal. I don’t know the status of that. They were all third-degree felonies. These guys were all looking at serious time because you’ve got a felony conviction if you are in prison, so you’ve got enhancements. A lot of times, we are looking at habitual offender enhancements, which is 25 to life. It’s the best you can do for an assault or a dope charge. Some of them were very serious, of course, like murders, escapes and that sort of thing.

You get to see all kinds of wild stuff but that was only part of what the office did. They were also tasked with doing these civil trials. They are called Civil Commitment of Sexually Violent Predators. If you are someone with two sex offenses, you are subject to being sued in civil court under the civil rules and the state is essentially proving that you are a sexually violent predator. For a time, all those cases were in Montgomery County. You might have seen some of these on the Supreme Court docket. They pop up from time to time.

These are Level 3 discovery trials. While I was there in Montgomery County, all the appeals went to Beaumont. That’s a big docket. A lot of cases and appeals. Finally, we did immigration work. These are the things I was involved in, and that’s mainly looking into somebody’s case. They have an Immigration Court on the Goree Unit in Huntsville. They bus these guys in from all over the state for Immigration Court. If you’ve got a criminal conviction, you are subject, in most cases, to removal.

We would screen those cases and find guys who may have been born in the states or have some defense. There aren’t many. Chances are if you’ve got a felony conviction and you are not a citizen, you are out but we screen those and went to court on a select few. We have a lot of exposure to a lot of different things. When you start there, they shuffle you through all of those sections.

I knew that I wanted to be an appellate lawyer. It’s the thing that most people don’t start their career wanting to do appeal work. There were a lot of things open to me. I was able to focus on that immediately and say, “This is what I want to do.” I’ve got to work on a cert petition in my first year. We had a lot of judges that we thought were treating us badly. From my classes with Professor Flint at St. Mary’s I knew all about mandamus. We were able to win some mandamus cases where we were able to shut down some things we weren’t happy with the trial judges were doing.

It was really cool and a great experience. You learn a lot about the prison system, which is something that most work-a-day defense lawyers once their case is over, it’s over. There’s a whole other side of things that happens in prison. It was an office that I actually learned about while interning on Central Staff at the Court of Criminal Appeals.

That was a great experience for me. I worked there for four years. At some point, I thought I wanted to move back to be closer to my family and get a wider variety of experiences because, after a while, all the cases were very similar. Prisoners don’t have Fourth Amendment rights. If somebody sees a bag of drugs in the cell, you can’t say that they didn’t have a warrant or whatever. It was a limited set of issues that you could raise. I felt like I had learned the most things I could learn from that. I started looking to get in with courts to try and learn more. I ended up coming back to Central Staff at the Court of Criminal Appeals, which is where I have been since 2008.

A prisoner behind the jail cell bars.

Extraordinary Writs: Prisoners don’t have Fourth Amendment rights. If somebody sees a bag of drugs in their cell, they cannot demand a warrant.

The Court of Criminal Appeals is a little different than the Supreme Court in that it has the Central Staff. How does that work? Do the judges have chambers attorneys and then they have Central Staff?

Each judge has two lawyers, a permanent lawyer and a young lawyer, straight out of law school most of the time. Those lawyers work, generally, for a year sometimes two or three years. Judge Womack, who was on the court when I started there, would just have lawyers work for two years. He always had two new lawyers, but most judges have a permanent lawyer that works in their chambers but we also have the Central Staff, which has three sections.

We’ve got a General Counsel. There’s the section that I work in. I’m the Supervising Lawyer of the Writ Section. There are seven of us in that. There are four people in the Death Penalty Section and there are five people in the PDR Section. I will explain that a little bit more. The Court of Criminal Appeals has a significant mandatory docket. Most lawyers who aren’t appellate specialists think about high courts in terms of the U.S. Supreme Court or the Texas Supreme Court based on the opinions that they hand down.

This Court of Criminal Appeals definitely does that but in addition to that, that’s the tip of the iceberg. Eighty-one percent of their docket is what we call the mandatory docket. These are cases that the court, either by statute or maybe by the constitution, has to deal with as a matter of first instance. The Central Staff helps the court process that volume of cases, helps the court make initial decisions on all of those cases. I can explain that more.

Petitions for discretionary review are what a lot of appellate lawyers are most familiar with. These are a Discretionary Review of Appellate Court, opinions and direct appeal cases for the most part. That’s the discretionary docket. We have lawyers who just go through all of those and make recommendations to the court about whether to take the case or not to take the case. On top of that, the habeas corpus system is complicated but what’s less complicated is post-conviction habeas corpus applications and felony cases. These are what we call collateral attacks, maybe like a Bill of Review.

I don’t remember very well but it’s a collateral attack on the judgment, technically a new lawsuit. By statute, those are filed in the trial court. The trial court may or may not do some fact-finding on them. They all get shipped to the Court of Criminal Appeals. We get these from all 254 counties challenging final felony convictions, so these are prisoners who are in prison.

The last I checked, we still have over 100,000 people locked up in Texas. Not many of them are happy to be there and they don’t have a right to a lawyer for this process. They are filing these, for the most part, pro se. We get about 4,000 a year. The 2020 Fiscal Year, they were down a little bit but for reasons I may or may not get into that litigation is a little bit more complicated now. We are helping the courts sort through those 4,000, 3,000, 800 or whatever applications that we get from the counties.

We are reviewing them for summary judgment. Have they alleged facts in which this is the most important principle? You’ve got to allege facts, which if true would entitle you to relief. If they have, then we need to have fact-finding on, maybe the trial court has already done that or the court needs to ship it back to the trial court. If you look at the Court of Criminal Appeals hand down every week, some cases are remanded to the trial court to sort out what this person is alleging.

What are the types of things that come up in these writs a lot that you see?

Habeas corpus is a big concept. It has been around for 800 years. The bottom line of habeas corpus is you are restraining me, give a good reason for it, justify that. That concept is now spread through the entire criminal process. There are pre-trial writs of habeas corpus where you may raise a facial challenge to a statute. There’s a bail writ if you are held for no bail or high bail. If you are an overzealous lawyer or the judge thinks you are overzealous and you get held in contempt of court, habeas corpus is your remedy.

Post-conviction habeas corpus is what I was talking about. That’s the collateral attack on the judgment. In a traditional appeal, appellate lawyers know you are limited to what is in the record. The objections and the arguments that were made on the record. Post-conviction habeas is for constitutional issues mostly that are from outside the record that require further development of the record that you couldn’t have known about at trial.

The Sixth Amendment right to effective assistance of counsel is the number one claim. You don’t see a lot of malpractice suits on the criminal side but you do see lots of ineffective assistance of counsel claims. “My counsel screwed up, and because of that error the validity of my conviction is in question.” Brady v. Maryland, 373 U.S. 83 (1963) violations. That’s the case that says that the state has to hand over exculpatory evidence in discovery.

That was really the only discovery you might get. If you were representing the citizen accused, it was Brady evidence. If it turns out that they didn’t give you something exculpatory, that could be a viable habeas corpus claim post-conviction. Obviously, that wouldn’t have been something that went down on the record for direct appeal. Texas has been a leader in actual innocence. Until the ‘90s, that wasn’t something that we were concerned about. It literally was not something for habeas corpus. If you’ve got newly discovered evidence, do something else. Go for clemency or a pardon. That’s your remedy. Since the mid-‘90s, Texas has recognized that actual innocence is a due process claim that you can raise. If you have new evidence that shows, “I didn’t really do this,” then you have a higher burden than most of the other cases, but that’s something that you can litigate and a lot of people have.

person speaking on stage to a crowd

Extraordinary Writs: Changing science sometimes plays a part in a conviction, but it’s not completely exculpatory.

You may see the upshot from this on the Supreme Court docket because of their exclusive mandamus jurisdiction over executive officials. Sometimes, these show up on their mandamus docket if the comptroller won’t pay compensation because you are now entitled to compensation if you have a winning actual innocence claim. Actual innocence is a claim that the federal courts still don’t recognize, but we have been doing it in Texas since the late ‘90s. That’s another claim.

False evidence is something else where the state has been a leader. The court held in the mid-2000s that if false evidence was presented at trial that turns out to be false, it doesn’t matter whether there was intent in that or it was perjured, we just care and this makes sense. We care that there was false evidence that contributed to a conviction. That’s a viable claim on post-conviction habeas.

These things are from outside of the record that you couldn’t have done at trial but by the same token, you can’t raise Fourth Amendment claims because you should have raised that. You can’t raise things that you could have raised at trial. That’s part of what we are sorting out on Central Staff are things that are cognizant habeas corpus to use that word where things that aren’t. Because we are dealing with pro se litigants and some lawyers, they raise a bunch of stuff that just doesn’t matter.

You mentioned the difference between federal and state habeas. What is the source of whatever right there is to habeas corpus in Texas?

The Texas Constitution grants the Court of Criminal Appeals plenary habeas corpus jurisdiction. It extends beyond the criminal side, although they don’t normally get involved in civil things. That’s recodified in the Code of Criminal Procedure. Chapter 11 of the Code of Criminal Procedure divides up all these different uses for habeas corpus and says, “You file this thing here, you file this thing here.” 11.07 controls post-conviction felony habeas corpus. 11.071 is death penalty habeas corpus, which comes straight to the court.

There are other situations if you had a misdemeanor conviction. If you are on community supervision for something, there are other ways to do that. Those are all in Chapter 11 of the Code of Criminal Procedure. I believe also that district judges have constitutional habeas corpus jurisdiction. Don’t quote me on that but I think that they might. It’s part of our job.

Part of knowing the technicalities is what isn’t covered. There’s gap-filling jurisdiction because our court system is so complex. There are little things where it may be that a district judge has jurisdiction, it may be the Court of Appeals does. It’s pretty complicated. In the Texas court system, it seems like nothing is straightforward. Habeas corpus is one of those things.

Sometimes you hear in the media cases of DNA evidence that wasn’t available 25 years ago and someone was convicted of a crime, and this new evidence comes forward. Is habeas the mechanism then for presenting that issue to the courts?

Chapter 64 of the Code of Criminal Procedure provides the method by which a prisoner could get new DNA testing or DNA testing in the first instance. How to do it and how to get it done, there’s a mechanism for that. Once you’ve got it done, if that is exculpatory and it’s something that wasn’t around at the time of the conviction, then habeas corpus is going to be the remedy, whether it proves your innocence or it goes to some other claim. Maybe the technology was there and the lawyer didn’t get it done, maybe it is an ineffective assistance of counsel claim. That’s how. When there’s DNA evidence that comes out, chances are that it’s going to be habeas. It’s going to be the remedy to actually make something happen with that conviction.

Have you seen more of those actual innocence-type claims in the last decade or so? I feel like science has caught up with a lot of this stuff as they change forensic science and all that stuff. Do you see more of those now?

We have seen quite a few but there was a real wave earlier on that I wasn’t around at the court for when some places had kept a lot of evidence. Some district attorney’s offices still had evidence from 30 and 40 years ago. Some don’t. There was a wave of DNA testing going on when that technology became more prevalent and more accessible.

There was a wave of exonerations at that point. A lot of them were from Dallas County, not necessarily because of anything they do in Dallas County but just because they had boxes and boxes of old evidence, it was susceptible to retesting. We see a lot of false evidence claims changing science. A lot of times, changing science is something that plays a part in a conviction. Maybe there was something else in there. It’s not completely exculpatory.

It doesn’t totally exonerate somebody, but it does cast doubt on the conviction enough to where we want to try it again. We want to start over on that, but it’s not completely exculpatory. We have seen a lot of that. The court has wrestled with how to deal with changing scientific opinions. You will get psychologists and psychiatrists who are saying, “I wouldn’t have said that,” or forensic scientists, people who do autopsies saying, “The science has changed in the last twenty years. I wouldn’t have testified to this.” It may be that a cause of death just becomes undetermined.

The question is, “How significant was that to the trial?” It’s like a harm analysis that you are going to be used to in any appeal but we are just applying it. Sometimes I describe to people, I’m someone who does autopsies on criminal convictions to see what really matters. Maybe this person had co-morbidities, “What killed the patient?” We are trying to sort that out.

Certainly, the DA’s offices have started getting these conviction integrity units that do a look back and look forward. Do you see them playing a role in this process more often now?

They have been growing, more and more jurisdictions have them. I can’t speak for them. The idea is that they take a less adversarial approach to re-examining convictions and are more open to working with the other parties. With that said, sometimes they are going to be in a position where they are just saying, “We can’t agree with this. This is a good conviction. This guy is good for it.”

It’s meant to be more collaborative and that’s their focus. Maybe they are separated from the line prosecutor and the line appellate prosecutors in the chain of command in a police shop like an internal investigation unit. I haven’t served in one, I have had some friends who work in some, so I don’t know if that’s all entirely accurate but that’s the general idea. It’s just meant to be more collaborative when that’s possible.

I want to go back to your explanation of the mandatory versus discretionary docket. I always wondered why the subsequent history in case law on the civil side was petitioned for review. Pet denied would be the subsequent history, and then in criminal cases it wasn’t a petition for review. It was a petition for discretionary review. The way you explained it helps me understand the difference in the wording. That’s not just some random happenstance language that wasn’t used intentionally to distinguish between the types of petitions being brought to the different courts. Does that make sense?

It does. There are a lot more of the Court of Criminal Appeals docket that’s mandatory rather than discretionary, where pretty much everything in the Texas Supreme Court is just discretionary.

For this little civil appellate lawyer over here who always wondered why the criminal cases had that extra word in their subsequent history, you just cleared it up for me. I had this odd epiphany that I thought I would verify with you guys.

The real old-timers will know that these things have had different names over the years. Didn’t it use to be a writ of error or something like that? It changes. On the civil side, the precedential value of these things changes or it makes a different space, or used to maybe, based on certain verbiage but I don’t remember that exactly. I don’t have my green book on me.

The mandatory docket also includes mandamus and the other things that the Court of Criminal Appeals has constitutional jurisdiction over it. Theoretically and technically, we have certiorari jurisdiction, procedendo jurisdiction and prohibition jurisdiction. In the cases, you see them referred to as discretionary writs, which is something I haven’t always totally understood. I have looked into it a little, bit but they are mandatory in so far as we don’t choose them. They come to the court and the court has to decide them one way or the other. It has to grant or deny it, or whatever.

Now, it piques my interest in talking about the mandamus and the criminal context. What does that look like in your court in particular or just criminal law generally?

It’s an interesting question if you are an appellate litigator because, as you guys know, on the civil side, mandamus law is very well developed. It’s a regular part of appellate CLEs. It’s something that you’ve got to have in your toolkit if you are an appellate lawyer on the civil side because the Supreme Court, as far as I can tell, has endorsed its use and indeed lowered the burden. It lowered it from where it was several years ago.

hooded person talking on the phone

Extraordinary Writs: Lawyers take a less adversarial approach to re-examining convictions and are more open to working with the other parties.

On the criminal side, there are theories about what the court is happy with, what it’s not happy with, what it’s willing to tolerate, and what it’s willing to intervene in, but you also have lots more litigation before trial. On the criminal side, there are whole years of discovery and all that. On the criminal side, practitioners still think of it in the old school way, where it’s got to be a ministerial duty and no adequate remedy.

They think of it in a much more conscripted way than they do on the civil side. We are still not to abuse of discretion, but the Court of Criminal Appeals has loosened it up a little bit. In fact, several years ago, I want to say, they got involved in a capital murder case in Huntsville and the jury instructions in a pending trial. The judge had to excuse the jury and wait for mandamus decisions first from Waco, and then the Court of Criminal Appeals. The Court of Criminal Appeals granted mandamus relief.

I don’t think that a lot of people notice that on the criminal side and they didn’t think much about it, but I thought it’s a big expansion of what they had done before. The habeas corpus that I was talking about is on a statutory timetable in the trial courts. We get things all the time saying the district clerk hasn’t forwarded the writ. We have made those things for responses.

That’s classic mandamus but now that there’s more discovery on the criminal side and people are waking up to the tool that it can be, we have seen more mandamus litigation over the past several years since I have been there and the court has been willing to look at these things and get involved in them more than they probably would have years ago. It’s changing but I don’t know if everybody really recognizes that it’s changing. I also don’t know that people understand how much different it is on the civil side.

It’s one of those things where we are like two ships passing in the night in our system because we don’t read each other’s opinions for the most part, but it is changing. People are getting tuned into what a fruitful thing it can be. Particularly prosecutors because a lot of times, they don’t have an appellate remedy.

There was some question when the Court of Criminal Appeals got wider mandamus jurisdiction back when they expanded the appellate courts. It was in the early ‘80s or the late ‘70s. There were questions about prosecutors who didn’t have any right to appeal, whether they should have a right to a mandamus either but that’s water under the bridge that never really got anywhere. They find it most useful. Criminal defense lawyers are starting to pick up on it a little bit.

The mandamus on the jury instruction starts to sound a lot like what we do in civil context.

They haven’t gone that far since.

We don’t see that on jury charges but we see that in a lot of what might be considered incidental or certainly interlocutory rulings. It seems like what you are saying makes sense. It starts to creep more towards the civil standard, which is very interesting to watch.

How does the Court of Criminal Appeals use certiorari?

It doesn’t. There are a few things like certiorari and procedendo that are dead letters at the moment. Technically, I have to look this up about once a year. It has been a year since I did it but basically, the case says that certiorari is not applicable when you have an appellate right, maybe even when you have waved an appellate right. If you had an appellate right, you don’t have a certiorari right. In reality, whatever function it might serve is covered by some other criminal process but it’s there in the Constitution Article V Section 5 of Court of Criminal Appeals, Extraordinary Writ Jurisdiction.

That one, like mandamus and others, are limited for the Court of Criminal Appeals to criminal law matters. Sometimes there’s a question, whether this is a criminal law matter or not. Sometimes the court will punt on that. If it’s garnishment of court costs from an inmate trust account, is that a criminal law matter? Probably not, but there’s a case on that. We do have to think about that from time to time but that’s not a limitation that applies in the habeas corpus jurisdiction.

The CCA has this whole other world that you only really see on the hand down when there’s a long list of things that were denied, remanded or abated. That takes seventeen lawyers to help them deal with in addition to their chambers. We do go to conference on these things, which is different from other courts. We are not there for opinion conferences but we are there for the basic decisions on PDRs, writs and mandamus. That’s a little bit unique as well.

Do the writs get oral argument typically or is it something that doesn’t happen very often?

It doesn’t happen very often. What happens is if the court does write a published opinion, it takes it to another level. They file and set it. Theoretically, writs aren’t filed. They are received. At some point, if a writ raises an issue that they need to resolve with a written opinion for whatever reason, then it will be filed and set, and then it moves into the world of the chambers. They may or may not set it for oral argument.

A lot of times, they are based on pure legal issues and it’s not a complicated record. A lot of times, there isn’t an oral argument but there is from time to time. I try and go down for those when they do happen. Interestingly or not, related to our prior discussion, in 2020 the Court of Criminal Appeals handed down more published mandamus opinions than habeas corpus opinions.

Writs are a little bit different and outside the system. Procedurally, assume you grant a writ or remand, what happens after that?

The prisoners return to face the indictment. The indictment is basically revived and you start from the beginning. Sometimes, if it was just an issue related to punishment, the court will vacate the punishment and send them back for a new punishment hearing. If it’s a double jeopardy issue, they may just zap. If they are suffering multiple punishments, the court may just zap one of those convictions and that’s the end of it but the prisoner is still being held by something else. Typically, they are returned to face the indictment so they can start over.

When the conviction is zapped, is that a dismissal of the indictment?

The conviction is just vacated.

Vacates the conviction.

The indictment is a dead letter. I haven’t really had to deal with that but it is a situation where sometimes when I was representing guys, I actually didn’t file any writs but sometimes you are in a situation where you say, “You might not want to win or not want to go back and do this over. You might want to think about being happy with what you’ve got, even though it seems like a bad deal now.” It could be a long way. You may win the battle and lose the war.

A judgment of acquittal comes up on the merits appeal. On the habeas side, what they are doing is just putting everything back where it was as of the date of the indictment.

You get an appellate acquittal if there are legal sufficiency problems. We generally don’t do them on habeas, even in innocence cases, but I don’t know of anybody that has actually been retried after a finding of actual innocence. I don’t know that there’s a bar to it but it hasn’t happened as far as I know.

It seems like that would be a tough one as a prosecutor to commit the resources to that.

How has your role been as supervising attorney? How’s that different than what you were doing before or is it very different?

I carry the same caseload as everybody else but I’m a liaison between the executive assistants, the clerks in the clerk’s office and the chambers. In general counsel, I’m the point person who does the communicating if that’s what’s necessary. I help develop policies. When we went remote, I helped. I collaborated with the clerks, the general counsel, and the judges to figure that out. I do things like this. An official part of the role is public education because writs are so esoteric. Few lawyers know about them. I do a lot of teaching. One of the best parts about my job is getting to do a lot of lecturing.

I’m a resource for prosecutors and defense lawyers. We encourage communication if that’s necessary and appropriate. We try not to do ex parte things, we try to avoid talking about the substance of anything but if you’ve got a sticky procedural problem, we try and point people in the right direction the best we can. Sometimes, I get calls from a prisoner’s family.

I try to deal with that in the best way that I can. I’m the public face of the writ section. I’m the prima donna who wants to do that. Most of them are happy to just work their cases. That’s part of the job description for a lot of people who work on court staff. They are happy to be on court staff for a reason. They like the anonymity and the quiet. I’m the go-between for all of those parties, different components of the court and public to the extent that that’s desirable.

It’s an interesting job. It’s unique in Texas Law. I have had a few predecessors. Mike Stauffacher was in the office for a long time. He did a lot of CLE lecturing, a lot of people know. Angela Moore is now a defense lawyer in the Hill Country. John Jasuta filled the role from the late ‘70s all the way into the 21st century. He’s a legendary figure in Austin. There’s this secret world of Austin bureaucracy. People at the Governor’s Clemency Office. It’s a unique role in the criminal justice system and I’m pretty lucky to have it.

I’m right in your description that none of this goes on in the middle courts and the intermediate courts. This just skips straight over and goes straight to you.

The post-conviction habeas corpus goes straight to us. Mandamus is like the Texas Supreme Court. In fact, we stole the idea from the Texas Supreme Court. You need to go to the appellate courts when they have concurrent jurisdiction. You can come to the Court of Criminal Appeals if you’ve got a good reason and skip the appellate courts but you’ve got to make that case.

It’s s Padilla v. McDaniel, 122 S.W.3d 805 (Tex. Crim. App. 2003), but we caught that idea from the Texas Supreme Court who had done it years earlier. If you’ve got a mandamus against a district judge or a county judge, then you need to exhaust that in the appellate court before you come to us. Other than that, the 3,000, 4,000, 5,000 11.07 habeas corpus writs go to the trial court, the district court, and they come straight to us. The appellate court doesn’t play a role in that.

It’s a unique seat for a lot of lawyers in courts because you probably see more than just about anybody else pro se writing and advocacy. What are the things that you have seen in your role that you think are good advocacy, bad advocacy, or things you would want people to know who are taking on writ work or appellate advocacy in general?

A lot of the broader lessons of appellate advocacy are applicable. You want to focus on a few good grounds. You don’t want to raise everything known to man. Prisoners do that a lot. I don’t blame them. They might raise 20 or 25 grounds in a writ. It’s basically saying the same thing over and over again in different ways and that’s fine. If you want to be a top gun appellate advocate, you’ve got to focus on a few good issues. You’ve got to keep it simple, be direct, confront bad cases, and confront burdens that you have that you may not like.

For instance, in the cases we say, “You get one bite at the apple if you get one chance to challenge your conviction.” After that, you can keep on filing writs but you’ve got to have something newly available. You’ve got to satisfy a statutory bar on consideration of those. If you are a lawyer who’s doing that, you’ve got to confront that. A lot of people pretend like it doesn’t exist. We are not going to miss it. You’ve got to face the bad facts.

I don’t know if writ practice is truly a paradox, I didn’t go to graduate school for philosophy as it turns out, but it’s a weird deal where you have to know a huge ocean of law to investigate one of these things, research one of them, and file one of them but the actual resolution of the issues usually comes down to a simple legal test. Did trial counsel err? Was that error harmful?

When it boils down to the key issues, it’s really simple. You can’t spend a lot of time telling us about the 30-year history of Strickland v. Washington, 466 U.S. 668 (1984) which is the leading ineffective assistance of counsel case from 1984. We don’t need a treatise on that. We need you to get down to the basics and show us that the lawyer messed up.

Most importantly, that it’s harmful. That’s the number one thing that lawyers don’t do and this is probably true on the civil side, too. They don’t grapple with harm and you have to. Strickland even says, “We know that a lot of these cases are going to be easier to dispose of unharmed.” If you can do that, then we don’t even care if the lawyer erred. We can say, “Let’s assume that they did.” Who cares? Does it make a difference?

Do you meet your burden? You’ve got to know your burdens, face them and plead them. You’ve got to make out your case. A lot of people spend a lot of time showing us how lazy and incompetent this lawyer was, how they botched the case this way and that way, and what a bad guy or lady the lawyer was. That’s fine. Sometimes, that’s the case. Sometimes, they really are plea artists or they don’t know what they are doing but ultimately, you’ve got to deliver on harm.

That’s the biggest deficiency that I see from lawyers. This is super simple. You’ve got to read the Rules of Appellate Procedure. Not only that, you’ve got to understand what rules apply to what. For instance, Rule Appellate Procedure 52 and all of its subdivisions are for extraordinary writs. That applies to the Appellate Courts and the Supreme Court. It doesn’t apply to the Court of Criminal Appeals. You’ve got to know these things. People cite Rule 30 or something that applies to direct appeals.

You’ve got to understand that different parts of the traps apply to different proceedings. You would be surprised or you wouldn’t be surprised how people don’t consult. When I was a lawyer, I was so scared. I re-read those things every time I did anything. I’m shocked to know that other people don’t. It just blows my mind. Know the rules and establish harm, especially in writs. You’ve got to focus on that because if you don’t, it’s not going anywhere.

That’s an easy way for us to move the case from here to there. Part of our job is we are bureaucrats. We are moving paper. We do have a heavy docket of our own. We are trying to move these things. If there’s an easy way to move it, if it’s within the law, we are going to do that. Maybe lawyers don’t wrap with harm because it’s hard. I understand that, but you can’t win without it.

What do you have to show in a criminal writ? What is the harm that you have to show standard?

It’s not a but-for test, but it’s a reasonable probability that there would have been a different result, basically. It’s funny, it’s one of those mind twisters where you have to prove your claims by a preponderance of the evidence, but then you’ve got this reasonable probability. That’s something that you’ve got to wrestle with it.

On actual innocence claims, it’s a clear and convincing burden and no rational juror would have convicted for the newly discovered evidence of innocence but it’s usually a reasonable probability. Lots of people don’t win but it’s not insurmountable. A lot of lawyers think it is and I understand why they do. People do win and prisoners win on their own without help.

It’s not impossible. It’s just hard and there’s a reason for that. The judges want some finality. Now with changing science, that has been a challenge to the criminal courts where you have this evolving science. What happens on a case from 1985? We had an arson case. Arson science has changed dramatically since the ‘80s. It was a little alarming to me.

I remember the ‘80s very well, but apparently the entirety of the science was set up. Insurance companies do this. They set up these dummy rooms with furniture, light them on fire and videotape it. It doesn’t seem like high-tech DNA stuff but that was what it was. What do you do with these? Is there ever finality in the criminal courts now? It’s something that the judges wrestle with.

One thing we would like to know is one or more things that either lawyers or just the general public don’t know about the Court of Criminal Appeals and what goes on at that court.

They don’t know about the mandatory docket. They probably don’t know about the judges, but I don’t think that that’s much different from the Texas Supreme Court. They don’t know the tremendous volume of issues that the court deals with. A lot of judges are caught by surprise themselves when they get on the court.

We have had judges who have served as trial lawyers or prosecutors, district court judges, and appellate court judges, they have gone right up through the ranks and they get to the Court of Criminal Appeals, and it feels like they are drinking out of a fire hose. It does a tremendous amount of work. It’s an interesting institution. I take a minor vocational interest in it from the personalities I have known that have worked there.

It’s a secret Texas, it’s not to the extent of maybe the railroad commission but it’s one of those Texas agencies where a huge volume of business goes on. It has this unique, rich, long history. A lot of great judges, even in my life from the ‘80s and ‘90s, and only a small group of criminal practitioners really knows much about it, and of course prisoners know a lot about it because we get all kinds of letters and mail from them addressed to the judges.

There’s an interesting buried history there. The criminal bar hasn’t done the same job of undertaking research into that history and preserving that history that the civil bar does. I know that the new Appellate Advocate has had all these interviews with appellate court judges. We just lost Presiding Judge Onion, who was a titan in Texas criminal law.

There are a lot of guys and some ladies too with interesting stories to tell, and there are these whole underground legends that nobody knows about, except people who have been there. It’s an interesting place and most people don’t know that it exists. You might have gotten a lesson in seventh grade Texas history that Texas has two high courts but maybe you didn’t.

Michael, this has been fascinating.

It has been. I love learning this stuff.

You will not be the last guest on the show that we have to talk about criminal-related stuff but as you know, from being a loyal follower, we like to ask our guests at the end of each episode to offer up a tip or a war story for our audience. Did you come prepared with one now? 

I have some wild and crazy stories from the prisons, but I probably shouldn’t really tell them. Various reasons. You see all kinds of things. One of the crimes that we defended is called chunking, and that is where prisoners throw bodily fluids on guards. That’s a third-degree assault. That’s the tip of the iceberg.

There is lots of wild stuff that goes on in prisons that nobody would know about that I would love to talk about, but it doesn’t seem appropriate. What I would say is do something that I never ever would have considered doing when I was a lawyer. I only practiced for four years before I came to the court. It’s a corollary of the rule of being nice to clerks and other people in the courthouse.

That’s a standard that everybody hears and is absolutely the truth but beyond being nice to the non-judges, get to know if you are practicing in an appellate court or a high court on a regular basis, get to know the staff as best you can and get to know the clerks. Maybe there’s a certain clerk and a certain court that deals with that proceeding. Call those people. Get to know them.

If the lawyers are approachable and they are open to talking, probably the clerk at the Texas Supreme Court is a great reference, he’s on Twitter. I don’t know to what degree he talks to lawyers on the phone but get to know the people at the courts that you are dealing with regularly. I would have never dreamed of calling an appellate court and talking to somebody about something.

Maybe I was too timid but we are here to help as best as we can. A lot of anxiety and problems could be cut off at the pass if you just ask somebody something. If they say, “We don’t talk to the lawyers.” “Thank you. Sorry to bother you.” I haven’t had that happen. People are generally nice and want to help so I take them up on that. That’s my advice.

That’s great advice and we appreciate you offering that up, Michael. It has been great. It’s great chatting with you. As I said, we enjoy learning about this kind of subject because it’s so different than what we proceed with day in and day out in our practices. We appreciate you spending the time with us.

I’m happy to be here. It was fun.

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Photo of D. Todd Smith D. Todd Smith

D. Todd Smith practices in the Appellate and Written Advocacy Group at Butler Snow LLP, where he represents clients in all phases of civil appeals and original proceedings and works with trial teams from the earliest stages of litigation. In trial courts, Todd…

D. Todd Smith practices in the Appellate and Written Advocacy Group at Butler Snow LLP, where he represents clients in all phases of civil appeals and original proceedings and works with trial teams from the earliest stages of litigation. In trial courts, Todd takes the lead on strategic analysis and briefing, jury charges, and potentially dispositive motions, all with a focus on preserving error and positioning cases for appellate review.

Todd earned degrees from Texas Christian University (B.S. 1989), Texas Tech University (M.P.A. 1992), and St. Mary’s University School of Law (J.D. 1995). While in law school, he was editor in chief of the St. Mary’s Law Journal and interned with Fifth Circuit Judge Emilio M. Garza (ret.).

Before joining Butler Snow, Todd served as a briefing attorney to Texas Supreme Court Justice Raul A. Gonzalez (ret.) (1995-1997), practiced with Fulbright & Jaworski L.L.P. (now Norton Rose Fulbright US LLP) (1997-2006), and ran his own civil appellate boutique (2006-2021). He is certified as a specialist in Civil Appellate Law by the Texas Board of Legal Specialization and regularly appears on Thomson Reuters’ Texas Super Lawyers list.

Todd frequently writes and speaks on appellate-related topics. In addition to publishing Texas Appellate Strategy, he is the creator, producer, and co-host of the Texas Appellate Law Podcast, a weekly show that demystifies appellate law and pulls back the curtain on the appellate system through conversations with judges, court staff, and practitioners.

Todd sits on the State Bar Board of Directors, is immediate past chair of the Austin Bar Foundation, and is a past-president of the Austin Bar Association. As Austin Bar president (2019-2020), Todd spearheaded creation of the Lawyer Well-Being Committee, which aims to educate, support and connect the Austin legal community to achieve more balanced, mindful, and joyful lives and practices. He also serves on the Judicial Committee on Information Technology, is a trustee of the Texas Supreme Court Historical Society, and is a member of the Robert W. Calvert American Inn of Court.