Aconviction in a criminal case is just the first step in the criminal process. If convicted of a crime, a person has a right to appeal that verdict to the appropriate Court of Appeals for review. There are three main avenues for appealing a criminal conviction: 1) direct appeal in a Texas Court of Appeals, 2) writ of habeas corpus in state court, and 3) writ of habeas corpus in federal court. Each appellate track requires its own special procedures. Only certain issues should be raised under each avenue.
Challenging a Conviction through Direct Appeal
When a person is convicted in state court, they have thirty days to file notice of appeal in the trial court. In federal court, a person must file notice of appeal within fourteen days. This notice of appeal will grant jurisdiction to the Court of Appeals to review the defendant’s case. The notice of appeal starts the direct appeal process. The direct appeal is one of limited review. With few exceptions, the appellate court will only review issues that were: 1) raised at the trial court and 2) received an adverse ruling. If the defendant’s trial counsel failed to raise an issue, and receive a ruling, the defendant is often barred from raising the issue for the first time on direct appeal.
For example, if the state introduces evidence that should not come before the jury under the Rules of Evidence, the trial counsel must object to the admission of the evidence and give the trial court a chance to keep it out. If the trial court allows it in over objection, the issue is properly preserved for appellate review. However, if trial counsel does not object, the issue may be lost for appellate purposes.
If error is preserved, the appellate attorney’s job is to persuade the Court of Appeals that the trial court erred in the adverse ruling. This persuasion is done through writing briefs, and if granted, oral argument. If the arguments are successful, the court of appeals can overturn the defendant’s conviction and provide various remedies, including dismissal of the case or remanding the case for a new trial.
If a defendant does not win at the court of appeals, they may file a petition asking the highest court for review. In state court, the defendant has thirty days to request review from the Court of Criminal Appeals (CCA). This formal request is done by filing a Petition for Discretionary Review (PDR). The CCA is the highest court in Texas for criminal cases and has the ability to overturn the court of appeals’ decision. However, the CCA does not have to hear any case. Their review is purely discretionary. The CCA declines review in the vast majority of cases. If a defendant is denied access to the CCA, their direct appeal is terminated in state court. The appellate courts will issue a mandate ordering the trial court to execute the sentence.
The discretionary review process in federal court mirrors the state court procedure. However, the petition filed is known as a writ of certiorari. The writ is filed with the Supreme Court of the United States requesting review of the court of appeals’ decision. As in state court, the Supreme Court may refuse to hear the case, and declines the vast majority of requests.
The appellate attorneys at Odom, Davis & Hobson have handled numerous appeals over the last 35 years. Notably, Wendell Odom handled the appeal that overturned the original conviction for Andrea Yates and led to her nationally televised retrial in 2006. Wendell obtained a not guilty by reason of insanity on retrial. Brian Hobson successfully overturned a client’s conviction for capital murder in 2019, and reversed a conviction for possession with intent to distribute on Fourth Amendment grounds in 2018.
Our firm has briefed, and argued, numerous issues before both state and federal appellate courts. Further, we stay current with all recent judicial opinions to ensure we understand any emerging legal doctrines. Our attorneys are ready to assist any defendant in the direct appeal process.
Challenging a Conviction through a Writ of Habeas Corpus
Once the direct appeal is finalized, a criminal defendant has one avenue left to challenge a conviction – a writ of habeas corpus. A writ of habeas corpus does not suffer from the same “on the record” issues as a direct appeal. Writs of habeas corpus allow an attorney to fully investigate the case, add off the record evidence to the transcript, and use this new evidence to overturn a conviction. While the factual basis can be extended with a writ of habeas corpus, there are limits on what issues can be raised. Certain issues may be procedurally barred. However, there are two main attacks which are commonly put forward in a writ of habeas corpus – 1) claims of ineffective assistance of counsel and 2) claims of actual innocence.
Ineffective assistance of counsel (IAC) is an allegation that the trial attorney’s performance was so deficient that it affected the outcome of the trial. Minor mistakes made in trial are normally insufficient to make an IAC claim. However, larger mistakes like not investigating certain witnesses, not looking for mitigation for the punishment phase of trial, and failing to raise clear constitutional claims can lead to a persuasive IAC claim.
Actual innocence claims are more well known to the public through true crime documentaries. To raise an actual innocence claim, a writ lawyer must investigate the entire case, find new evidence which could not have been discovered prior to trial, and prove to a court the defendant is actually innocent of the crime. The defendant must prove the innocence claim by clear and convincing evidence.
Writs of habeas corpus require extensive work to have any chance at success. A writ lawyer must investigate the entire case from its inception, including talking to witnesses and prior lawyers, reviewing all police reports, reviewing the trial transcript, analyzing existing scientific reports, resubmitting scientific evidence, visiting the crime scene, and following up on leads not pursued by the trial attorney. Once the investigation is complete, a writ lawyer must put together a persuasive written pleading, conduct a hearing in the trial court, and appeal any adverse rulings to the court of appeals. This is a long drawn out process, but for many it is their last shot at challenging a conviction.
It is important that a writ of habeas corpus is done correctly the first time. Procedural rules can bar a defendant from raising identical issues on subsequent writs. Put differently, if a lawyer/defendant haphazardly raises ineffective assistance of counsel on a writ of habeas corpus, and the claim is denied, all subsequent lawyers may be restricted from raising the issue in the future. The attorneys at Odom, Davis & Hobson have an extensive history in investigating, filing, and appealing writs of habeas corpus. We understand what issues to raise and have argued numerous constitutional issues before the Courts of Appeals throughout the country.
Recent Appellate Cases at Odom, Davis & Hobson
The criminal appeal attorneys at Odom, Davis & Hobson have over 40 years of experience in handling appellate matters in both federal and state court. The following are some of the most influential wins in appellate court:
- Wendell Odom successfully handled the appeal in the highly publicized Andrea Yates case following her conviction for murder in 2002 (Yates v. State, 171 S.W.3d 215 (Tex. App.–Houston [1st Dist.] 2005). The Court of Appeals overturned her conviction, and Wendell obtained a not guilty by reason of insanity verdict in her 2006 retrial.
- Brian T. Hobson handled the appeal in Meane v. State, 527 S.W.3d 557 (Tex. App.–Houston [1st Dist.] 2017). In Meane, the trial court erred when it upheld a search of the defendant’s pockets based on the strong odor of marijuana. After briefing the issues, the Court of Appeals overturned the defendant’s conviction for possession with intent to distribute methamphetamine. Meane set a new standard for roadside searches in Texas, ruling the strong odor of marijuana was insufficient to justify the search of a passenger in a vehicle.
- Brian T. Hobson handled the appeal in Washington v. State. In Washington, the trial court erred when it denied the defendant a competency trial prior to his trial for capital murder. In 2019, the Court of Appeals overturned Mr. Washington’s capital murder conviction and remanded the case for a new trial.
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The following are articles written by our attorneys relating to appellate matters: