When You’re Entitled to a New Trial in Texas

June 12, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Regardless of whether you were convicted of DWI, marijuana or cocaine possession, assault, or any other offense in Texas, you may be able to get a new trial.

There are two main ways to get a new trail in Texas criminal cases. One is through a formal appeal to the courts of appeal (which takes lots of time and patience) and the other way is that the trial judge can grant you a new trial — but only of you act quickly after the conviction!

Texas Rule of Appellate Procedure 21 governs new trials through the trial court. This means the same judge that tried the original case will be the judge that decides whether you get a new trial under this rule. Under TRAP 21.4, you only have 30 days to file a “Motion for New Trial”.  If you file it within the 30 days, you have another 45 days to have the judge give you a hearing to decide whether you actually get another full-blown trial.

Under TRAP 21.3, the judge must grant a new trial where; he has mis-instructed the law to the jury in a way that materially impacts the defendants rights, where the defendant was tried in absentia (other than a class c misdemeanor), or where the verdict is “contrary to the law and the evidence.”

Many of the grounds for new trial involve jury misconduct for TRAP 21.3 as well. The mis-conduct can include; where jurors reached a verdict by lot (or some other unfair means), jurors dis-obeying the courts instructions not to talk about the case with outside people or conducting outside research, or if a juror has been bribed. As a side note, proving juror misconduct is extremely difficult because generally jurors can’t be called to testify about their deliberations in Texas.

TRAP 21.3 also has various other reasons for new trials that are obvious… Where evidence was lost or destroyed… Or where a material defense witness was threatened or intimidated from testifying.

Basically, you must file a motion and have a hearing proving to the judge one of these grounds. the judge can order a whole new trial on guilt or innocence, or just on punishment if appropriate. Obviously the prosecution has the right to oppose your motion.

Sometimes you need to file a motion for new trial with the trial judge for no other reason than to perfect your record for the court of appeals… So even if you think the judge won’t grant your motion, you may still have to file it to do what appeal lawyers call, “preserving error.”

If you’re thinking of appealing a conviction and you still have time — you should consider asking the judge for a new trial with the assistance of an experienced attorney.

*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 should be considered legal advice.  For legal advice about any specific situation you should contact a lawyer directly.

 

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Posted by Jeremy Rosenthal, Esq.

Texas Criminal Appeals 101

June 6, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Appealing a conviction in Texas can be difficult, but it’s not impossible.

Criminal trials are extremely complex and if the judge, prosecutor, or even your own lawyer have made mistakes — a conviction can potentially be over-turned by the Texas appeals courts.  While an appeal can often represent a great hope — you should know that statistically the odds are long at having a case overturned.  That being said — convictions are over-turned all the time.

The most important thing to remember with an appeal is time is critical.  Some issues can be appealed months and even years after a conviction — but the vast majority of appeals MUST BE FILED WITHIN 30 DAYS of the judgment under the Texas Rules of Appellate procedure.  Also, sometimes a motion for new trial can be granted and the trial judge can allow a re-trial of the case under some circumstances if you act quickly enough.  Unlike a fine bottle of aged wine — appeals get worse as they get older.

When a conviction is being appealed — what is typically getting called into question are the balls and strikes a judge called at trial.  Sometimes, but rarely, a prosecutor’s conduct or the conduct of your own trial lawyer may be addressed.  Practically never is something the jury did subject of a successful appeal.  The reason is that the judge decides “questions of law” and the jury decides “questions of fact.”

Common grounds for appeals are:

Did the judge allow someone to serve on the jury that shouldn’t have been there?

Did the judge allow the prosecutor to go too far in arguing to the jury?

Did the judge improperly admit evidence the jury should’t have been allowed to see?

Did he not let the accused admit evidence he should have let in?

Did he give the right instructions to the jury?

There are dozens of areas which can be grounds for appeals.  Doing an appeal without a lawyer is extremely difficult.  There are tons of legal tripwires designed to toss out appeals before they even get to be seen by an appeals judge.  Get a lawyer if you’re considering an appeal.

*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 should be considered as legal advice nor does it create an attorney-client relationship.  For legal advice about a specific situation, you should consult an attorney directly.

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Posted by Jeremy Rosenthal, Esq.