Please help out a fledgling appellate attorney. I received an 11.072 HC Writ with the following grounds: Defendant plead to an Injury to a Child (offense date 5/15/01) on April 30, 2002. Filing attorney, Grand Jury Attorney, Grand Jury, Defense Counsel, and Trial Prosecutor all missed the fact that in the police report the victim's age was 15 yrs 6 mo at the time of the "offense." Defendant was placed on 3 pro 3. Recently defendant was charged with 2 Domestic Assaults and an ARP was filed. It was at this point that Defense Counsel "discovered" the problem and filed App for 11.072. The Court wants to hold a hearing and do "something." There is no question that the victim was not a "child" at the time of the offense. My problem is that I'm trying to figure out procedurally how to proceed. CCP 11.072 Sec.2(b)(1) would seem to make this the proper vehicle, BUT Sec.3 says an application may not be filed under this article "if" the applicant could obtain requested relief by means of appeal under Art. 44.02 CCP and Rule 25.2 TRAP. It seems to me that Defendant could have and should have appealed this early on in the proceedings, but failed to do so. Does that failure prevent usage of 11.072 because the applicant could have obtained relief via appeal? If so, what would be the proper mechanism for doing what appears right in this case? If the failure to appeal does not prevent usage of 11.072 how would that be justified? Any help would be appreciated.

Sec. 3(a) only prevents a writ if there is still time to perfect an appeal (interpreted otherwise it would always serve as a bar). My curiosity compels me to ask how the allegation (about the age of the victim) in the indictment was initially proved?

It appears the current attack must be a claim of actual innocence, but I am not sure Elizondo-Thompson apply when the proof shows guilt of a different (perhaps lesser-included) offense. Also, isn't the age of the victim something which should be discovered ahead of time. Certainly it is not "newly discovered" or "newly available" evidence within the meaning of those cases. I would argue the claim is nothing more than an attack on the sufficiency of the evidence. Cf. Grigsby 137 S.W.3d 673.

The "how proved" question is a good one, but fairly simple. The defendant signed a judicial confession and entered a guilty plea in open court. The indictment alleged a victim of 14 or younger. Our office has an "open file" discovery policy and the offense report was part of that file and had the correct d.o.b. of the victim which should have become an issue but never did. There is really no way for our office to know whether or not defense counsel took advantage of our discovery policy and actually looked at the file. The case was initially presented to our office as an Assault-FV, but the filing attorney received CPS reports indicating the victim had been suffering abuse for several years, and filed the case as an injury to a child. I believe the filing attorney (no longer in this office) had intended to include earlier offense dates, when the victim was under 14 but never did follow through with it.

The "on or about" language in the indictment may save you unless there is a finding in the judgment as to the date of the offense.

The claim that should be raised is one of ineffective assistance of counsel. There is no strategic reason for defense counsel to fail to recognize that the child's age made it impossible to obtain a conviction for the felony of injury to a child.

John Bradley
District Attorney
Williamson County, Texas