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Who decides appeals?
In Texas, the first criminal appeal goes to one of the Courts of Appeal. There are fourteen
courts of appeals in Texas. Each court has at least three judges, and
most have more. Appeal court judges are elected like other judges. Each
appeal is decided by a panel of three judges. The courts of appeal hear
both criminal appeals and civil appeals.
Does the Court of Appeals decide Guilt?
Despite what most people think a court of appeals does
not decide guilt or innocence. The court can address guilt in a very
limited manner. They will review a verdict to determine whether there
is any evidence to support it, which there almost always is. This is
know as legal sufficiency review.
In some cases, the court can review
the verdict to determine whether it is "manifestly unjust", which is
known as factual sufficiency review. It is important to realize that
the court assumes the jury resolved any conflicts in the evidence in
favor of the state.
This means that they will not determine for
themselves whether certain witnesses were truthful. No matter how
obvious problems with testimony
may be, the court is not going to review. The reason is that the court
only has the written record to look at; how witnesses look on paper,
and how the look in person are often completely different.
If your
claim is based on proving the witnesses lied, you are generally not
going to be successful. Many people come in telling us that if only the
Court will look at the evidence they will see I'm not guilty. While
that may be true, you are going to have find some other approach to be
successful.
How do you start an appeal?
A criminal appeal is started by filing a notice of appeal. This is nothing more
than a statement that you want to appeal, what you are appealing
from, and which court of appeals will hear the appeal. The notice of
Appeal is filed with the Clerk's office for the court you were
convicted in.
They will then send the notice
of appeal, along with other information about the case to the court of
appeals. In Texas, the notice of appeal in a criminal case must be
filed within 30 days of the date you are sentenced. If you decide to
file a motion for new trial the notice of appeal must be filed within
30 days after the motion for new trial is denied.
Do I need to do anything other than file a
notice of appeal?
Yes. The notice of appeal is only part of what you
must do. You must also make arrangements to obtain the record. There
are two parts of a record in a criminal case. One is the clerk's
record. That is a copy of all the documents filed with the court, such
as the indictment, motions and the judgment.
You obtain that by filing
a designation of record, which is a list of the documents you
want sent to the court of appeals. Once you file the designation the
clerk will copy the documents you want and send them to the court of
appeals. The second part is the reporter's record.
This a transcript
prepared by the court reporter of everything said in court. It is your
obligation to contact the court reporter and order the record. Court
reporters charge by the page, so the longer the trial, the more
expensive the record will be.
Are there any limitations on what can be raised?
Since the court reviews what the trial court did, they generally are
limited to reviewing trial court rulings. This means that if there was some error which was not objected to, there is
nothing to review. The court also is limited to the written
record of the trial.
New evidence cannot be admitted during
the appeal. For that reason a criminal appeal lawyer does not need to re-investigate the case, and interview
witnesses. This also means that the court of appeals cannot hear testimony.
What relief can be obtained?
A Court of Appeals can either reverse and remand a case, or reverse and enter a
judgment of acquittal. Normally cases are remanded, which means you go
back to the trial court for another trial.
If the court finds there was
insufficient evidence to support the conviction, they can enter a
judgment of acquittal, which is the same as if the jury found you not
guilty.
What must I prove to win a criminal appeal?
Almost any criminal trial has some type of error in it. That most most
judges will make some mistake during a trial. However, merely finding
error does not mean the case will be reversed. The Court will only
grant relief where an error is harmful.
This means that the error must
have had some effect on the verdict. This is usually referred to as
harmless error. In many cases the most important thing you can do is
concentrate on proving harm. Many lawyers spend too little time on this
factor, instead spending most
of their time trying to prove there was an error. That can be a costly
mistake, since you may win part of the appeal, but lose in the end.
Can I be released on bond?
The answer depends on how long your sentence is. If it is less than ten years, you
may be eligible for a bond. If it is more than ten years you cannot be
released on bond. In misdemeanor cases, you are always entitled to be
released on bond.
There are some cases where you can never get an
appeal bond. One of those is aggravated sexual assault.
What happens in a criminal appeal?
After the notice of appeal is filed, and the record is completed, a brief
must be prepared. A brief consists of points of error, are your
complaints about what happened in the trial. Those points of error must
be support by a legal argument, which is a discussion of the law and
how your case fits in.
Once you file your brief, the state then has an
opportunity to file a response. After they do the case is ready to be
considered by the Court. The court has the option of deciding the case
solely on the briefs that are filed.
If the issues are fairly clear,
and do not appear complicated, they will generally choose this option.
In criminal cases, a high percentage of cases are decided in this
manner. If the court wants more input, they will set the case for oral
argument.
That is an opportunity to present the case to the court in
person, and convince them why should win. It is also the court's chance
to ask questions and clarify anything they may have concerns with.
Is there a strategy for filing a brief?
Yes, there a few general rules you should keep in mind. You must always
keep in mind that your are writing the brief to convince the court to
accept your arguments.
You do by convincing them your position is the
legally correct one. Generally, you should not take a shotgun approach
in raising points of error. Instead, you should pick out your strongest
ones, and concentrate on those. If you have too many issues, you risk
the court losing sight of the most important one.
It is a rare case
that has more than one issue that will result in a reversal, and the
trick is to picking the issue the court is going to be most interested
in.
Do all lawyers handle appeals?
All licensed lawyers can handle appeals, but only a few do. The skills required to
be a good appeal lawyer are different from those required to be a good
trial lawyer. You must be able to write well, which is something that
is difficult to master.
You also must be able to research well, and
have a good knowledge of the law. Many lawyers do not like to research
and write, and so they avoid handling appeals. You should look for
a lawyer who has a lot of experience in handling criminal appeals.
While there exceptions appeal lawyers generally become better with more
experience, since there writing skills improve, and they become
familiar with what issues the courts are looking for, and how they
review cases.
How long does an appeal take?
This is a question everyone asks, and unfortunately it is one that does not have
a good answer. There are no time deadlines for deciding appeals, so
all anyone can do is guess. The length of time can depend on a number
of different factors, including the complexity of the case, and the
other cases the judge has to decide.
The one thing you can be sure of
is that the process does take time, and it is a rare case that is
decided within one year from the date of sentencing.
What if I lose in the Court of Appeals?
In Texas you have the right to appeal to the Texas Court of Criminal
Appeals. In federal cases you also have a right under federal criminal
law to appeal to the United States Supreme Court. These appeals are
called discretionary appeals, because
the Court does not have to hear the case.
They can deny the petition
without providing any reason for doing so. They generally will only
review those cases where they feel the issue is an important wide
statewide, and there is concern about the court of appeals decision.
They also are interested in issues where the court has decided an issue
that is conflict with another court of appeals. The focus at this point
is different.
You cannot merely copy the brief that was filed in the
court of appeals. Instead, you have to address why you think the court
of appeals decision is wrong, and most importantly, why the court
should hear the case. Petitions should be fairly short. Your goal is to
get the court's attention, which is easier to do if they don't have to
wade through a lengthy petition.
If they grant review, you will have a
chance to file a brief that will set out your arguments in more detail.
Is there any reason not to pursue a
criminal appeal?
If the decision was not what you wanted, but was
better than the prosecutor wanted, you want to consider what will
happen if you win. There have been situations where a defendant has
come out worse after winning an appeal.
Advice from an experienced attorney is
especially important if you are in this situation.
Not all lawyers who handle criminal cases handle appeals. There is a significant difference between being able to handle a criminal case and handle an appeal. Successfully handling an appeal means more than being able to conduct research.
All lawyers are trained to do that, as are many legal assistants and paralegals. In addition to conducting research, successfully handling an appeal requires an ability to identify the important issues. Some are easily identified, while others require the expertise of an experienced appeals lawyer. Also important to successfully handling an appeal is the ability to write effectively, and draft a persuasive argument.
I have been successfully handling criminal appeals for almost 30 years and have handled appeals in both Texas Courts and federal courts.
While I do not win every case (no one does), I have been a successful on many, many occasions. I regularly receive referrals from other lawyers throughout the state who call me when they need help with an appeal or other post-conviction matter. And I continually work hard to maintain my reputation.
I also share my experience with other lawyers, presenting programs at continuing legal educations sponsored by various organizations, including the Texas Criminal Defense Lawyer’s Association.
I handle cases in both Texas state courts of appeal, and Federal courts of appeals.
Although my fees are not cheapest, they are competitive with other lawyers of comparable experience.
And my experience and reputation with the courts is worth every penny.
Fees are based on the complexity of the case, and the length of the trial. Generally, those fees range from $6,000 up.
If you want to put my experience and reputation to work for you, please contact me.
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