Appeal vs. Writ of Habeas Corpus: What's the Difference?

In this blog post, we want to define each of these terms and discuss under which circumstances an appeal or a Writ is appropriate.


If you are seeking an appeal for yourself or for a loved one, you may have come across terms such as “appeal” and “Writ of Habeas Corpus.” These are terms of art and are easily misunderstood. In this blog post, we want to define each of these terms and discuss under which circumstances an appeal or a Writ is appropriate.

If you or your loved one has been convicted of a crime, you can dispute the ruling and ask a higher court to overturn the conviction. There are two options to help you overturn the conviction; an appeal or a writ of habeas corpus. Legal experts from the Law Office of JD Foster have prepared an in-depth guide detailing the difference between the two processes and how you can use them to get exonerated. Follow through!


What Is An Appeal?

An appeal is a request to a superior court, often the court of appeals, to review your case and make a final order or judgment. It allows the convicted person to prove that there were errors during the conviction or trial phase. The judges may decide to:

  • Overturn the conviction
  • Affirm the conviction
  • Order a new trial or sentence hearing

During the process, your appellate attorney may seek to prove to the court that intentional or unintentional mistakes of law or fact were committed during the trial process or in sentencing. Your attorney will first submit a written brief, which is a detailed document that sets out the facts of your case, the laws that govern your case, and an argument designed to persuade the appellate court to interpret the law in favor of your appeal.

Appeals are different than trials. Even though your attorney may go to court to present an oral argument to the appellate judges, you don't need to present new comments, witnesses, or evidence. An appeal is not a retrial, but rather a chance to have your case reviewed for any errors committed on trial.


Writ of Habeas Corpus

In Texas, a Writ of Habeas Corpus appears in two contexts - as an original proceeding requesting the release of the defendant on legal grounds or in an appellate context, typically as a last resort in a legal proceeding. It's an order issued by a court to take or abstain from a specific action. Unlike an appeal, the Writ doesn't have to be reviewed but is based on the court judges' discretion in relation to the applicable law but a Writ is treated as an urgent or emergency proceeding and therefore takes precedence over other pending matters in most cases. You could file a Writ petition if waiting for an appeal can cause grave hardships, when bond is excessively high or when you are legally entitled to a personal recognizance bond, or when you don't have another legal recourse.

A Writ of Habeas Corpus is an order that demands the convicted to be availed in court to confirm reasons why they are in custody. During the process, you and your legal team can dispute the legality of why you're in detention by providing new evidence, comments, or witnesses not in the trial records. You can use documents like affidavits and witness statements to support your case depending on the situation.

In many states, you must apply for a Writ of Habeas Corpus within one year after the conviction.  In Texas, you don't have a time limit to apply for a Writ of Habeas Corpus in non-death penalty convictions and writs are commonly used both at the trial court and appellate court level as a procedural device to address various issues.

While a Writ of Habeas Corpus is different from an appeal, a post-conviction attorney experienced with the appellate procedure can help you determine if a Writ of Habeas Corpus is appropriate in your case.


Hire An Ellis County Appellate Attorney Today

If you are considering an appeal, you may be facing a long, daunting road ahead. However, you do not have to go down that road alone. At The Law Office of JD Foster, we can review the facts of your case and help you determine if seeking an appeal is right for your case. From there we will develop a strong appellate strategy.

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