Tips and advice for appealing a criminal conviction in Texas
If you are convicted in a criminal case, you have the right to appeal the decision, to request the higher court to review the decision of a lower court if it went against you and to ask the higher court to determine if the lower court’s decision was fair—or unfair.
To appeal a criminal conviction, your criminal defense attorney will file with the Texas Court of Appeals. Texas has 14 appeals courts throughout the state.
For instance, if you live in Houston or within Harris County or Fort Bend County and the surrounding areas, your case would be considered by the First Court or Fourteenth Court of Appeals. If your case was originally tried in Montgomery County, your criminal defense lawyer will file an appeal in the Ninth Court of Appeals.
For best results when appealing a conviction, an experienced and trusted attorney will be needed.
What is a criminal appeal?
The Texas Rules of Appellate Procedure dictate the Texas criminal appeals process. Your lawyer will discuss the preference of entering a motion for a new trial or filing a notice of appeal.
Motion for a new trial
If you received an unfavorable judgment after the first trial, your lawyer may file a motion for a new trial:
- You must file the motion within 30 days of the judgment at the original trial.
- Your motion must be received by the trial judge within 10 days of the motion filing.
Filing a motion for a new trial also extends your deadline for the filing of the notice of appeal (from just 30 days to 90 days). Your defense lawyer may present an error that occurred in the original trial when filing the motion for a new trial.
Notice of appeal
Your lawyer must file a notice of appeal within 30 days from the date the court pronounced the verdict in open court. After 30 days pass, you lose the right to file an appeal in Texas.
Your lawyer may also concurrently file a motion for the appointment of appellate counsel with the notice of appeal.
If you’re unable to pay for counsel, your defense lawyer may also include your affidavit that states you are currently financially strapped. In doing so, your right to appointed appellate counsel is protected. It also creates the option for a family member or friend to engage a lawyer for you.
How does the appeals process work?
Once the Texas appeals process starts, your defense lawyer must prepare the appeal record. An appeal does NOT involve the presentation of new witnesses, documents or affidavits, nor is an appeal a new trial. The appeals court reviews the case record to identify first trial errors, including examining the records made by the court clerk and court reporter.
Your defense attorney will obtain and present the first trial records to the appeals court. Statements made by witnesses at the first trial might be viewed differently by the appeals court. Because witnesses don’t appear in person to make a testimony, the appeals court reads written records of their statements.
After your lawyer presents the first trial records, they have 30 days to request an extension or to file an opening brief. After filing the opening brief, opposing parties file a response. Thereafter, your defense attorney may file a responding brief.
At that time, justices of the appeals court review the appellate record and briefs. Your attorney and opposing counsel must make oral arguments to the court. Twenty minutes are allowed by the court for questions and answers about the case. Finally, the judges issue a written opinion about whether decisions in the first trial stand.
A legal sufficiency review is the goal of the appeals court. While the appeals process doesn’t determine guilt or innocence, it reviews the verdict of the lower court to determine whether the presented evidence supports the outcome.
What happens if the appeal is lost?
Your defense lawyer has 15 days to file a motion to rehear the case. If the motion is denied, they have 30 days in which to petition a discretionary review by the appeals court in Texas. The petition may be no longer than 15 pages and it must carefully describe why your case should be accepted for a review by the lower appeals court in Texas.
The Texas Court of Criminal Appeals is the “court of last resort.” If the judges deny the petition, your case won’t progress within the court system. If the petition is granted by the court, then the judges agree to consider the attorneys’ arguments to render a case judgment.
What is a federal appeal?
The Texas Court of Criminal Appeals may file a judgment that goes against your case. You then have the legal right to present a writ of certiorari in the U.S. Supreme Court. You may also pursue a post-conviction writ in Texas or present a petition to the federal court (a writ of habeas corpus).
The criminal appeals process is a make-or-break situation for many clients. Overturning the state’s findings in your case is not easy. Appealing your case at any level, in either the U.S. Supreme Court or a habeas proceeding in federal court, involves a complex process.