Right to an Appeal in Texas – Code of Criminal Procedure Article 44.02

There are many possible grounds for appealing a criminal conviction in a Texas criminal case. Among the most common are the following:

• Instructions Given to the Jury Were Improper: When the time comes for the jury in a trial to deliberate and make its decision, the trial judge must explain to the jury what the law is that they should apply to the case. The text the judge uses for this purpose is referred to as the “jury instructions.” If the trial judge instructs the jury incorrectly, incompletely, or in a way that is misleading, this can be grounds for an appeal.
• Failure to Admit Evidence that Should Have Been Admitted: If the defense offers evidence to support its case and the judge does not allow it to be presented to the jury, this may serve as grounds for an appeal.
• Failure to Suppress Evidence: Courts must follow strict rules regarding the evidence that may be presented to a jury. These rules protect the right of a defendant to a fair trial and ensure that evidence is reliable. When a trial court makes incorrect decisions about evidence, it may affect the outcome of the trial.
• Failure to Exclude Evidence in Violation of the Exclusionary Rule: One important rule that governs the admissibility of evidence in criminal trials is the exclusionary rule based on the 4th, 5th and 6th Amendments to the U.S. Constitution. Basically, the exclusionary rule provides that evidence found and seized by law enforcement in violation of the prohibition of illegal searches and seizures should be excluded at any trial.
• Wrongful Denial of a Pretrial Motion: Many important issues in a trial are dealt with in motions that the parties make before the actual trial begins. If a judge rules on a motion incorrectly, this may serve as grounds for appeal. Among the more common and significant motions are the following:
  • Motions to suppress evidence that was seized illegally
  • Motions to exclude witness identifications on the grounds that they are not reliable
  • Motions to dismiss the criminal charge because of the statute of limitations
  • Motions to change the venue of the trial because of prejudicial pretrial publicity
  • Motions to exclude expert testimony that does not conform to legal standards.
• Jury Misconduct: Jurors must follow strict rules to ensure that trials are fair. Their verdicts can be based only on the evidence that is admitted at trial. If jurors violate these rules and expose themselves and/or other jurors to material that they should not consider, this can serve as grounds for an appeal.
• Ineffective Assistance of Counsel: The 6th Amendment to the U.S. Constitution guarantees a criminal defendant a right to an attorney in a criminal trial. It has also been interpreted to mean that the defendant’s attorney must be competent in their representation. Some of the failings on the part of the defendant’s attorney that can lead to a claim of ineffective assistance of counsel are the following:
  • Failing to investigate important items of evidence
  • Not calling witnesses to testify who have important evidence to offer for the defense
  • Failing to object to evidence that was not admissible
  • Not telling the defendant about an offer of a plea deal
  • Not preparing adequately for trial.

There are other possible grounds as well which a Texas lawyer would be able to explain.

How Does an Appeal Work?

A defendant files a notice of appeal within 30 days of the date when the verdict in the case was announced in open court. If a defendant does not file the notice of appeal within the time allotted, they lose their right to an appeal.

When an attorney files the notice of appeal, they can also file a motion for appointment of appellate counsel, i.e., to be appointed to represent the defendant in their appeal. The defendant can inform the court that they cannot afford to hire an attorney. In this case, the court can appoint an attorney to be paid by the government to represent the defendant.

The defendant’s attorney must then submit the record on appeal with the court of appeal. This would include transcripts of the trial and any other documentary evidence needed for the appeal.

After these written records are filed, the attorney has 30 days to file the defendant’s opening brief. In the opening brief, the defendant lays out the reason for which they believe the verdict should be overturned. The opposing party, the prosecution, usually has 30 days to submit its response. The defendant may then file a reply. This is the final step in the filing of briefs.

The attorneys must then appear before the court of appeal to participate in an oral argument of the case. After the oral argument, the court renders its decision, either upholding the verdict or reversing it and ordering a new trial.

Where Do I File the Appeal?

The first step in a criminal appeal is to file a notice of appeal in the trial court in which the defendant has been convicted. This notice informs the trial court and the prosecution that the defendant plans to appeal the conviction. The next step, as noted above, would be for the defendant’s attorney to prepare the record for the appeal, e.g., obtaining the transcript of the trial.

Is There a Cost To Filing an Appeal?

The court of appeals charges a fee of approximately $200 for filing an appeal. Then there is a charge to purchase a transcript of the trial. This is paid by the party who appeals the verdict, so usually the defendant. They may cost as much as $1,000 per day of the trial. So, the transcript of a 3-day trial would cost $3,000.

However, the main cost is the cost of paying an attorney to represent the defendant, prepare the trial record, write an appellate brief, and argue the case before the court of appeals. An attorney’s fee may range from $25,000 to $40,000 depending on the complexity of the case and the issues that need to be raised on appeal.

Do I Always Have the Right to Appeal a Court’s Decision?

A defendant has a right to an appeal of all criminal convictions. However, if they have been sentenced to the death penalty, their appeal would be handled in a special manner that would involve a number of specialized appellate reviews. A legal consultation would be advisable in this situation.

What Else Can I Do Aside From Filing an Appeal?

If the jury returns a verdict of guilty, the defendant’s attorney may file a motion for a new trial within 30 days. This motion would argue that an error was made in the trial, e.g., misconduct on the part of a juror, that warrants having a new trial.

If there was an error in the case that involves certain limited legal issues, e.g., a judge’s failure to grant a motion to suppress evidence, a defendant might file a writ of habeas corpus in state or federal court.

Do I Need an Attorney to File an Appeal?

An appeal is the type of legal process that demands the help of an experienced Texas criminal defense attorney. LegalMatch.com can connect you to a lawyer who can review the record in your case and advise you as to whether you have grounds for an appeal.