How Do I Appeal A Criminal Case In Texas?

June 25, 2011

By Texas Criminal Defense Lawyer Jeremy Rosenthal


First of all, Appeals should not be attempted without a lawyer.  Also, this article is intended to be for class b misdemeanors and above… not for class c misdemeanors.  This blog only skims the surface of this extremely complex area.

We can handle appeals anywhere in the State of Texas through e-filing which is now in place.

What is an Appeal?

In America we get our day in Court.  We don’t, however, get our day in court over and over again until we win.   A common misconception about an appeal is that it is a do-over.  An appeal can generally be analogized more of an “instant replay” than it is a re-trial.

Appeals generally focus on specific things which happened during the trial such as improper court rulings, improper testimony or even improper conduct of the prosecutor (or even the defense lawyer).  These things are known as “error” and if the error is bad enough, an appeal may result in a reversal, a new trial, or possibly even an acquittal.

Appeals are done through briefs and through transcripts of the trial.  On occasion, the Court of Appeals may request an oral argument by lawyers, but this is somewhat rare and tends to be focused on contested legal points.   I often visit with people who think that perhaps they can get the appeals judge to “understand” because the original judge didn’t seem to get it.  That really isn’t what an appeal is for.

Successful appeals can result in either a new trial or an acquittal.

What Types of “Errors” Result in Reversals?

Simply because there was an error made by the trial court does not automatically entitle a defendant to a reversal or a new trial.

As a general rule, the more fundamental or serious the error, the more likely it is to result in a reversal.  The seriousness is often measured by how directly it affects a right under the U.S. Constitution.  Good examples can be violations of the confrontation clause or a substantial defect in the jury charge.

Many errors — if not most errors — are classified as “harmless.”  This means that even though there was a mistake made at trial, the appeals courts may rationalize the conviction by claiming the error wasn’t a big deal.

Additionally, when a mistake is made at trial, the defendant’s lawyer is usually required to make an appropriate objection.  This is called “preserving error.”  Unfortunately the appellate courts can easily duck difficult legal questions where error was not preserved by counsel at the trial level.

How Do I Appeal?

Appeals have very tight deadlines.  The deadline to file a notice of appeal is 30 days from the date the judgment was entered.  Texas Rules of Appellate Procedure 26.2.  Frequently, a “Motion for New Trial” is filed in conjunction with a notice of appeal.

Who Hears the Appeals?

In Texas, there are two layers of appeals after trial.  There are 14 appeals districts which are the first line appeals courts.  These courts handle both civil and criminal appeals.  Above those courts, there is the Texas Court of Criminal Appeals — which is the highest criminal court in the State.  (Civil appeals ultimately go to the Texas Supreme Court).

Motions for New Trial

A motion for new trial is a request made to same judge for a new trial under Texas Rule of Appellate Procedure 21.  You can read more the specifics in motions for new trials here.  A motion for new trial typically has a duel purpose.  First, is to see if the same judge that presided over the original trial will simply allow a new trial — but more commonly as a way to preserve points for appeal which may not have been presented or properly preserved during trial.  A motion for new trial must also be filed within 30 days after the imposition or sentence, but the court can hear it as late as 75 days after the sentencing.

What Happens After the Notice of Appeal is Filed?

The Court of Appeals requests that the Court Reporter furnish the record (which consists of transcripts, motions and exhibits from the trial).  Once that has been filed by the Court Reporter with the Court of Appeals, the Defendant has 30 days to file an appellate brief arguing why the appeal should be successful.  The State has 30 days to file a reply brief after Defendant files their brief.

After briefs (and supplemental briefs – if necessary) have been filed, the Court will eventually issue it’s ruling.

What Happens if I Missed the Appeal Deadline?

After the 30-day deadlines have expired, there are still some available remedies for appeal but those are far more limited.  The most common are under Chapter 11.07 of the Texas Code of Criminal Procedure for felony offenses which deal with controverted, previously unresolved facts which are material to the legality of the applicant’s confinement.  This may be because of newly discovered evidence, because it is discovered the prosecution did not turn over exculpatory evidence to the defense, or ineffective assistance of counsel.  The filing of an 11.07 writ can be extremely complicated and should be discussed directly with an attorney.

Indirect Appeal and Post-Conviction Relief

Appeals are a confusing topic and complex topic.  Most of what people think about for appeals involve direct appeals — or the appeal of something which happened at trial and was taken down by the Court Reporter.  Indirect Appeal — called a Writ of Habeas Corpus — usually involves things which weren’t taken down by the court reporter.  This could include the prosecutor hiding evidence, improper legal advice by an attorney, or the discovery of new evidence after the conviction.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any specific situation you should directly consult an attorney.

Governor Perry Vetoes Texting While Driving Ban

June 19, 2011

By Dallas and Collin Count Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

The Texas legislature recently passed House Bill 242 which made texting while driving illegal in Texas.  It would have made violations a Class C misdemeanor, which is the lowest offense level – equivalent to speeding.

On June 17, 2011, Governor Perry vetoed the bill saying the bill was “a government effort to micromanage the behavior of adults.”  He did state texting while driving was “reckless and irresponsible.”

Study after study has shown texting while driving to be as or more dangerous than drunk driving.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any specific situation you should contact an attorney directly.


Not Much New DWI Legislation in Texas for 2011

June 4, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

After a political season with a lot of chest-beating and drum-banging about changes to existing Driving While Intoxicated laws in Texas, only several changes will be made to the Texas Penal Code.  You can read an article by the Dallas Morning News on the topic here.

There are only two changes. The first is that that punishment ranges can be increased for first-time DWI cases with a blood-alcohol concentration of 0.15 or greater from 180 days to 1 year of jail for punishment. This change may sound like a harsh one, but the vast majority of DWI first-time offenders get probation regardless of the jail sentence — which means the punishment is suspended whether it’s 72 hours or 1 year of jail. The second change is to increase the punishment level where a victim of intoxicated assault is in a vegetative state from 10 years to 20 years.

The big news is that the legislature did not pass a bill allowing deferred adjudication in Driving While Intoxicated for first time offenders. The bill had broad support from law enforcement as well as prosecutors because the harsh state of DWI penalties gives prosecutors no room to plea-bargain. Defense lawyers had a luke-warm reaction to the idea because the proposed legislation was extremely shallow in it’s benefits for those pleading guilty to a first-time drunk driving charge.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any specific situation, you should consult an attorney directly.

Who Can See My Criminal Record?

June 1, 2011

By Collin and Dallas County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

Criminal records are generated different ways.  What you have to remember is that when you get arrested, you are cycling through a public system where information is (to varying degrees) open to the public.

Your “official” criminal records are kept by the FBI and the Texas Department of Public Safety.  The FBI runs the NCIC (National Crime Information Center) and DPS runs the TCIC (Texas Crime Information Center).  Only specifically authorized personnel are allowed to view information in these databases and it is not readily accessible to the public.  In fact, the illegal dissemination of information of the NCIC or TCIC is a class b misdemeanor in Texas.

When a private citizen or company is looking at your criminal record, what they are really looking at is information a third-party vendor has purchased or acquired directly from county, state or city court system.  Under the Gramm-Leach-Bliley Act of 1999, users must justify their queries and have a legitimate purpose for conducting background research on websites of the public data forums.  As you might guess, the categories are somewhat broad — so if you’re applying for a job or for credit then it’s safe to assume your background may be legally checked.

Non-disclosures and expunctions are ways in Texas that criminal records can be mitigated.  An expunction under Tex.Code.Crim.P. Chapter 55 is an extremely powerful right which authorizes the actual destruction of the information surrounding the arrest.  

A non-disclosure under the government code chapter 481 can help in limiting the persons who can have access to an arrest record.  Generally, only governmental agencies will have access to criminal records.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any particular issue, you should consult an attorney directly.