The Second Bite at the Apple: Direct Appeals in Texas

In the State of Texas, every criminal defendant has the right to appeal a conviction following trial.  The right to an appellate court is important to provide oversight on trial court decisions and ensure criminal defendants are receiving fair trials across the state.  This blog will outline the direct appeal process in the state of Texas following a trial conviction.

Every appeal starts with establishing jurisdiction in the appropriate regional court of appeals.  The State of Texas is broken down into Fourteen Judicial Districts.  These districts include Houston (1st and 14th), Forth Worth (2nd), Austin (3rd), San Antonio (4th), Dallas (5th), Texarkana (6th), Amarillo (7th), El Paso (8th), Beaumont (9th), Waco (10th), Eastland (11th), Tyler (12th), and Corpus Christi and Edinburg (13th).  A regional court is granted jurisdiction when a criminal defendant files notice of appeal in the trial court of conviction.  The Texas Rules of Appellate Procedure (TRAP) provide that a criminal defendant has thirty days from the date the sentence is imposed to file notice of appeal.  If this deadline is missed, the system may deny an appeal to a criminal defendant.

The Motion for New Trial and Record Expansion

After the notice of appeal has been filed, an appellate attorney needs to work quickly to review the clerk’s record and talk to witnesses, the defendant and the trial attorney.  The court of appeals will only hear issues on direct appeal which have been raised and ruled upon in the trial court.  A criminal defendant has thirty days in which to file a motion for new trial.  A motion for new trial allows an attorney to put additional issues, or evidence, on the record for appellate review.  If the trial counsel has missed an important issue or left important evidence out of the record, the motion for new trial can be a useful tool in shoring up those deficiencies.  This expansion will give life to new issues, or heavier weight to existing issues, during the appellate courts’ review.

For example, let’s say the trial counsel objects to the admission of the defendant’s confession based on his intellectual disability and inability to understand the warnings, but fails to enter previous psychological records showing the defendant’s low IQ and mental health issues.  The attorney on appeal can locate those records, reallege the objection in a motion for new trial, and enter the psychiatric records into evidence at the motion for new trial hearing or as attachments to the motion.  Now, the court of appeals will have additional evidence to review when analyzing whether the trial court erred in denying trial counsel’s objection.

Briefing the Issues

Once the record has been expanded, the appellate lawyer will have to wait for the court reporter and clerk to provide records to the appropriate court of appeals.  A complete trial transcript and every pleading filed in the case should be present in the records.  Once these records are turned over to the court of appeals, the attorney will have access to the documents through the court of appeals online portal.  It is important to review the records when they are received.  Many times, pivotal motions, pretrial hearings or a chapter in the trial transcript are omitted.  It is best to catch these mistakes early so there is not a need to extend time later in the appeal.

Defendants will have thirty days to file their brief once the last of the reporter’s or clerk’s record is filed.  For example, if the reporter’s record is filed on 1/30/19, and the clerk’s record on 3/1/19, the appellant’s brief will be due on 4/1/19. The brief is the attorney’s opportunity to persuade the court of appeals that an error exists of such magnitude a new trial should be granted.  The attorney on appeal should read the entire record (often two or three times) noting every objection made and looking for any irregularities in the trial process.  Further, the jury charge and other pleadings should be analyzed with a fine-tooth comb to ensure no error exists.  Once the issues have been pulled from the transcript, an attorney will write a brief outlining the issues.

The thirty-day deadline is just a starting point in most courts of appeals.  The justices understand that most private attorneys are too busy to devote the time needed within the first thirty days.  Motions to extend the briefing deadline are often granted.  Every court is different in setting how many days is appropriate, but normally, an attorney is safe filing a brief 60-90 days from the first deadline.

After the attorney on appeal files the brief, the state will be given an opportunity to reply.  They will also be given a thirty-day deadline from the date in which the appellant’s brief was filed.  This date is almost never met.  It is normally 60-120 days before the state will file their brief.

After the state responds, the defendant will get a chance to reply one last time before the court will take the case under advisement.  The reply brief must be filed within twenty days from the state’s brief.  An attorney on appeal can attempt to extend this deadline, but the court does not have to wait for the reply brief to decide the case.  Given that fact, it is the best practice to file the reply brief within the twenty-day window.

The appellant’s reply brief provides a unique opportunity to shade the issues one last time before the court of appeals makes their decision.  The reply brief should be used strategically.  One strategy is to bait the state into spending time on losing issues.  If an attorney knows they have a great response to an argument the state is likely to make, they can choose to not discuss the issue at all in the original brief. The state will spend a ton of time briefing that issue.  Then on reply, the attorney can slam the door.  This strategy can provide a competitive advantage for the defendant.  There are multiple strategies to use on appeal.  A well-crafted reply brief is one strategy that should always be considered.

Oral Argument and Submission

After briefing is complete, the court of appeals will set the case for submission.  Over the next few months, the court of appeals will decide whether to grant oral argument.  Oral argument is not a right and is often not granted upon appellant’s request.  However, if argument is granted it is normally an indication one of the issues presented has peaked the attention of one or more justices.

Oral argument is a great opportunity to answer some key questions the justices may have in deciding the issues presented.  It is difficult to know which areas the justices will be keying on, so preparation is very important.  Attorneys on appeal should go through their briefs multiple times and discuss the issues with other attorneys.  Many times, the issue that a fellow attorney hits on during a discussion will be the exact issue the justices nail during argument.  Again, preparation is key.

Following submission, with or without oral argument, the court of appeals will return decisions on the issues presented in the appellant’s brief.  Their decision can either 1) affirm the conviction (let it stand), 2) abate the appeal and remand to the trial court, 3) overturn the conviction and dismiss the case, or 4) overturn the conviction and remand for a new trial.  If the court of appeals affirms the conviction, the direct appeal process is not over.  The defendant has one last chance to request review from the Court of Criminal Appeals.

Requesting Access to the Court of Criminal Appeals

The Court of Criminal Appeals (CCA) is the highest court in Texas for criminal cases.  The Supreme Court of Texas is their sister court which handles exclusively civil cases.  The CCA is a discretionary court, meaning they get to choose which cases they hear.  A criminal defendant has no right to CCA review.

An attorney on appeal starts the CCA review process by filing a petition for discretionary review (PDR).  The PDR is a legal pleading which asks the CCA to review the decision of the court of appeals for error.  The PDR is not an opportunity for an appellate lawyer to restate his issues on appeal.  The likelihood of a copy and pasted brief getting granted CCA access is next to zero.  The PDR is an opportunity for appellate counsel to point out the mistakes made by the court of appeals and make a persuasive argument on why that issue is worrisome enough to warrant review from the highest court.  An attorney needs to explain why the current case is worthy of being one of the few selected for review that year.

Normally, the CCA is looking for: a) decisions which are contrary to established law, 2) decisions which create a split between two judicial districts in Texas, or 3) whether the area of law needs to be decided by the CCA for guidance to the lower courts.  It is important that an argument be made within this framework for a PDR to have a chance at success.

If the CCA denies the PDR, the direct appeal process is over.  The court of appeals will issue mandate ordering the trial court to execute the sentence previously imposed.  The mandate normally takes around a month to issue.  If PDR is granted, the appellate attorney will get a new shot to repeat the process outlined above for the court of appeals – write briefs and hope for oral argument.  After review, the CCA can: 1) affirm the conviction, 2) provide guidance and remand to the court of appeals, 3) abate the appeal and remand to the trial court, 4) overturn the conviction and remand for a new trial, or 5) overturn the conviction and dismiss the charges.

The appellate process in Texas mimics the process in most states and in the federal system.  However, each system has its own unique rules and guidelines which must be followed.  It is normally an uphill battle in the appellate courts as the legal rules aim to uphold jury verdicts unless a large issue exists in the record.  If a criminal defendants’ conviction is affirmed, he/she is likely left with one option for attack – a writ of habeas corpus.  Writs will be discussed in a separate blog at a later date.

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