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I find the decision in Delaney to be quite interesting for a couple of reasons. First, how can Delaney timely file a notice of appeal? His sentence was imposed in 2005. Second, was not a writ of mandamus the proper vehicle for relief? He was not (at least directly) challenging the validity of his confinement, but rather the false (abusive) certification regarding his right of appeal. Does art. 11.07 now reach mere errors in the appeals process? I understand its use to permit an out-of-time appeal based on ineffective assistance of counsel. But Delaney seems different to me. Unless you say his counsel was ineffective for asking for permission for an appeal, rather than the correct certificate.
Posts: 2388 | Registered: February 07, 2001Reply With QuoteReport This Post
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The CCA says the trial court was wrong to deny permission to appeal. Actually, if asked for permission to appeal, the trial court did not have to grant it. That was a discretionary choice.

However, the defendant did have an independent right to appeal because he did not need the trial court's permission to appeal from the adjudication. He can't appeal the decision to adjudicate; he can appeal the punishment associated with that adjudication.

As history has shown, appealing a punishment is a waste of time, assuming the judge assessed punishment within the range provided by law.

So, I guess the writ really is a recognition of the ineffective assistance of counsel in perfecting the appeal. The trial lawyer could have just filed a notice of appeal and then appealed any decision of the court of appeals to dismiss the appeal for lack of jurisdiction.

I agree, Martin, that all the nonsense with a writ seems inappropriate. But so is the appeal.
Posts: 7860 | Location: Georgetown, Texas | Registered: January 25, 2001Reply With QuoteReport This Post
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