Criminal Defense Lawyer | DWI, Drug, Theft & Assault Charges

By Texas Criminal Defense Lawyer Jeremy Rosenthal

(972)369-0577

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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.