Texas Appeal Process
WHAT IS AN APPEAL?
An appeal generally occurs after a conviction when the defendant requests a higher (appellate) court to review the trial and determine whether errors were committed that require a retrial or acquittal. If the appellate court finds no reversible error the judgment is affirmed and the sentence must be served; if the court finds error that beyond a reasonable doubt contributed to the conviction or punishment, the case is reversed and a new trial or punishment hearing may be ordered. Sometimes, though rarely, a case may be reversed and the defendant ordered acquitted, that is, set free (e.g., state failed to provide sufficient evidence of guilt).
There are numerous reasons for an appeal from a guilty verdict in a criminal case, including what’s called “legal error.” Legal error may include:
- Allowing inadmissible evidence during the criminal process, including evidence that was obtained in violation of your constitutional rights;
- Lack of sufficient evidence to support a verdict of guilty; or
- Mistakes in the judge’s instructions to the jury regarding your case.
You may also appeal due to misconduct on behalf of the jurors, or if there is newly discovered evidence to exonerate you. However, a jury’s determination of what is a fact or of the witness’s credibility (or a judge’s determination when there is no jury) will rarely be disturbed.
Almost every trial will contain some error. However, we are only guaranteed a fair trial, not a perfect one. Therefore, a trial court will only be reversed when the error is considered harmful, or one that is shown to affect the verdict or the punishment.
The state is entitled to appeal a limited number of orders of a court in a criminal case. For example, the state may appeal an order dismissing all or any portion of an indictment or information, granting a new trial, or granting a defendant’s pre-trial motion to exclude evidence or a confession. The state may not appeal from a judge’s decision or jury’s verdict finding a defendant not guilty of an offense.
The first criminal appeal is decided by the Court of Appeals. Texas has 14 Courts of Appeals, each having at least three judges. A panel of three judges reviews the trial based on the printed record and the written arguments (briefs) prepared by attorneys for both sides. There are no witnesses and no new evidence may be presented.
THE APPEALS PROCESS
This process varies depending upon the crime, but there are always time deadlines by which you must file an appeal. The process is begun by filing a Notice of Appeal with the trial court. In Texas, you generally have 30 days from sentencing to file the notice of appeal. If a motion for new trial is filed, the deadline is 30 days from the day the motion is denied.
The defendant must also make arrangements to obtain the record. This consists of the clerk’s record (a copy of all the documents filed with the court) and the reporter’s record (a transcript of everything said in court).
After the record is prepared, the appellant, or the party asking for review, must prepare a brief detailing the errors complained of, the state of the law that applies to that type of error, and how that law applies to the facts of this particular case. The other side then has an opportunity to write a brief in response. The Court of Appeals has the option to either consider the case on the written briefs alone or to allow oral argument. In oral argument each side is given a short time to present their case and answer questions from the panel of judges.
The Court of Appeals has no deadline for deciding an appeal. The actual length of time will depend on a variety of factors, but many cases take longer than a year.
The party that loses in the Court of Appeals has the right to appeal to the Court of Criminal Appeals. Unlike the first appeal which is a right, further appeals are discretionary. This means the Court can deny the petition for review without giving any reasons. Cases that are reviewed typically fall into one of two categories:
- those that present issues important to legal practice statewide; or
- those where the appellate court decided the case in a way that conflicts with another appellate court.
Any licensed attorney can handle an appeal, but many do not have the legal talent, experience or desire to perform the intense research and writing that is required. It is important to seek an attorney experienced in appellate law that can offer the wisest advice and most effective written and oral advocacy. An old wise lawyer once said “It takes a good trial lawyer to become a good appellate attorney.” If you or a loved one have been convicted of a crime, you can rest assured that the legal professionals at the Law Offices of Roderick C. White have thoroughly demonstrated the talent, experience, and earnest desire to both diligently and aggressively pursue your appellate rights. Contact us for a free initial consultation.