Developing the Record - Motion for New Trial | Criminal Appeals Blog

Developing the Record – Motion for New Trial

First Court of Appeals in Houston

Following a conviction, a criminal defendant is entitled to file a motion for new trial within 30 days from the imposition of sentence.  The motion for new trial is an underutilized tool by many appellate attorneys in both state and federal court.  This post will begin by laying out the procedural rules surrounding a motion for new trial under Texas law.  Then we will discuss how the motion for new trial may be used to obtain a new trial, or more commonly, develop the record for meaningful appellate review.  Other posts written by our criminal appeals attorneys can be found at our page devoted to criminal appeals.

Procedural Rules under Texas law

Timing Deadlines

Criminal defendants have 30 days from the imposition of sentence to file a motion for new trial.  After 30 days, the trial court loses jurisdiction to hear the motion.  Appellate attorneys should be mindful that all issues/grounds for relief must be raised within the 30-day window.  An attorney cannot file a motion for new trial on day 28 and add new grounds via an amendment on day 33.  Only the motions or amendments filed within the 30-day window may be considered by the trial court.  If an appellate attorney is hired on day 25, they will have to move quickly to ensure any issues are diagnosed and placed into the motion.  Appellate counsel can develop the factual record after the 30-day deadline, but new grounds for relief will not be considered.

After the motion is filed, the defendant has 10 days to present the motion to the trial court.  This rule requires an appellate attorney to notify the trial court the motion has been filed.  The presentment may occur up to 75 days after the imposition of sentence in the trial court’s discretion.  It is always the best practice to present the motion within the 10-day window and obtain written confirmation the motion has been presented.

The trial court has 75 days from the imposition of the sentence to rule on the motion for new trial.  This is by far the most important procedural rule under Texas law.  If an appellate attorney files the motion within the 30-day window, presents the motion to the trial court, and fails to demand a hearing and ruling before the 75-day deadline, the motion will be denied by operation of law.  On day 76, there is no means to revive the motion because the trial court loses jurisdiction.  The attorney will have disposed of a valuable tool in the appellate process by simply failing to demand a hearing and ruling within the allotted time.  Of note, the Courts of Appeals have found appellate counsel ineffective for failing to meet the 75-day deadline.

Requirements of the Motion

Every motion for new trial must be verified through a sworn declaration.  This may be done by the attorney, or a pro se criminal defendant.  The verification should swear to the factual matters presented in the motion.  If any facts are presented that are not in the record, an additional affidavit should be attached signed by a person with knowledge of those facts.

Every motion should request a hearing on the issues presented.  The trial court is not responsible for granting a hearing or placing the case on a hearing docket.  In fact, most trial courts are happy to let the motion sit until it is denied by operation of law.  The appeals attorney should be proactive in requesting a hearing.  The first step in that process is including a formal request for a hearing in the actual motion and attaching an order asking the trial court to rule on that request.

How to Ensure Access to an Evidentiary Hearing

The defendant is entitled to a hearing on a motion for new trial where he raises a legitimate ground for relief, the ground cannot be determined by the trial record, and he supports the ground with an affidavit from a person with knowledge of the off the record facts.

The first step is to provide the trial court with an affidavit supporting facts that are outside the record.  This affidavit should touch on the key pieces of information that would entitle the defendant to relief.  The overarching issue here involves notice to the trial court.  If a defendant raises an issue that entitles him to relief and shows the trial court the facts that support that assertion, the trial court must grant a hearing.  This makes sense.  In that instance, the appellate attorney should be allowed to either offer the affidavits into evidence for the appellate record or offer live testimony on the issue.

The affidavit should be filed as an attachment to the motion for new trial.  The appellate attorney should not wait to file a supporting affidavit.  If an attorney files the motion on day 29, there is nothing to stop the trial court from denying the motion on day 30.  If you have not padded the motion with a supporting affidavit, the trial court would be correct in denying a hearing at that time.  If outside the record facts are needed to support the grounds for relief, the trial court would also be correct in denying the motion for new trial altogether.

In summation, to obtain an evidentiary hearing an attorney must: 1) raise an issue that entitles the defendant to relief, 2) file a supporting affidavit with the motion for new trial detailing the facts not contained in the record, 3) ensure the affidavit specifically supports the grounds for relief, and 4) request an evidentiary hearing in the initial motion for new trial.

Appellate Law

Grounds for Relief

The Texas Rules of Appellate Procedure delineate the grounds which require the trial court to grant a new trial.  T.R.A.P 21.3.  The new trial may be granted for the entire trial or just the punishment hearing.  The first seven grounds deal with specific issues ranging from being tried in absentia to juror misconduct.  The final ground for relief is a catchall that states the trial court must grant relief if “the verdict is contrary to the law and the evidence.”

The grounds listed in Section 21.3 are not exhaustive.  A trial court may grant relief in the interest of justice.  In practice, the likelihood of having a ground for relief that fits neatly into one of the delineated grounds is quite small.  The majority of motions for new trial will be based on the interest of justice and its effect on the substantial rights of the defendant.

The Motion for New Trial and Developing the Record

A motion for new trial may be an effective means to overturn a conviction or sentence immediately following trial.  If clear errors occurred, such as juror misconduct or the state misstating material evidence, a trial court may grant a new trial.  This route to overturning a conviction removes the need for a lengthy appellate process.

However, the motion for new trial is not solely useful for overturning a conviction.  It is more common for the motion to be used as a tool to develop the factual record prior to the direct appeal.  This concept is best understood through a real world example.

Ineffective Assistance of Counsel

Under Strickland, trial counsel is ineffective if he/she: 1) provided deficient performance and 2) the deficient performance affected the outcome of the trial.  Ineffective assistance of counsel can rarely be adequately raised on direct appeal without expanding the factual record. The Courts of Appeals have set high standards for proving ineffective assistance.  These standards handcuff a reviewing court unless specific questions are answered in the record on appeal.

The two main issues with raising ineffective assistance on the trial record alone are the Courts of Appeals reliance on trial strategy to explain apparent deficient performance and their inability to determine whether the mistake affected the outcome of the trial without knowing what the missing evidence would entail.

For example, let’s assume trial counsel failed to call a material, exculpatory witness at trial. On its face, that decision appears to be deficient. However, if that barebones fact is raised on appeal, there is no way for the reviewing court to know a) whether the decision to not call the witness was trial strategy or b) whether the content of the testimony affected the outcome of the trial.  The Court of Appeals would be unable to uphold any challenge for ineffective assistance of counsel without facts to clarify those questions.

Post-conviction counsel has to overcome these obstacles on direct appeal.  They can be overcome by effectively raising the issue, and expanding the factual record, through a motion for new trial.  Through a motion for new trial, appellate counsel can provide a statement from trial counsel admitting his error (if he will cooperate) or put trial counsel on the stand to obtain those facts.  Further, appellate counsel can put the missing witness on the stand to detail her version of the facts.

If handled correctly, the record on appeal will now contain the information needed for meaningful review.


The motion for new trial should be a major part of any appellate attorney’s arsenal.  It is the only means by which an attorney can expand the appellate record.  The motion is only effective if appellate counsel gets the facts of the case quickly, follows the correct procedure, and obtains a hearing on the contested issues.