If there was one word to describe criminal appeals in Texas, it would be “technical.” Criminal appeals subject to strict deadlines and filing requirements, there are also 91 pages of rules dedicated to appellate procedure on top of local rules for 14 different courts of appeal. For this reason, even most criminal lawyers shy away from handling criminal appeals. And even the most resourceful of people can find themselves without a whole lot of information on what to do next when they feel like something didn’t go right in their criminal trial.
So what are some of the important things to know about criminal appeals in Texas?
1. Two Types of Criminal Appeals in Texas: Direct and Writ
A direct appeal is the most common form of appeal. They frequently involve a dispute over a trial judge’s ruling on a legal matter which affected the outcome of the case. Sometimes they involve what is referred to as “insufficient evidence.” Insufficient evidence occurs when the prosecution fails to present at least some evidence on an element of the offense.
The counterpart to a direct appeal is a writ (writ of habeas corpus). A writ is also referred to as a collateral attack or collateral appeal. Typically, a writ raises issues that are not apparent in the record (things that were not known or brought to the judge’s attention). Some of the most common writs involve ineffective assistance of counsel, discovery violations by the prosecutor, and actual innocence based on new evidence.
2. Appeal Bond
In most cases, a trial court has discretion to grant an individual an appeal bond in both direct appeals and in a writ appeal. There are a couple of exceptions to this rule. First, a person who appeals a misdemeanor offense is entitled to a bond (not subject to judge’s discretion). Second, on direct appeal a judge may not give an appeal bond to a person sentenced more than 10 years or in certain serious offenses like Murder, Burglary, Rape, and others.
3. 30 Days for Direct Appeal
Direct appeals are the most common form of appel and they must be requested within 30 days the of the date a judgment is imposed.
4. Brief and Oral Arguments
On direct appeal, the filing of a notice to appeal triggers a timeline for the clerk and the court reporter to file a record. Once both are received by the court of appeals, the appellant (defendant) has 30 days to file a brief raising legal issues he or she believes were wrongly decided by the trial judge. This time may be extended upon request. Once a brief is submitted, the the same timeline begins for the state. If the court of appeals believes the issue is sufficiently important – they may allow oral argument on the arguments discussed in the briefs.
5. Reverse and Remand or Reverse and Render
There are two types of victories on appeal. The court of appeals may reverse and remand. This means they believe the trial court committed a legal error and the case should be retried or the trial court reconsider its ruling in light of the appellate court’s position on the law. The court of appeals may reverse and render a judgment of acquittal. When there is a legal error and the state is barred from retrying the case, the court of appeals may simply render a judgment of acquittal.