If a person is convicted of a crime and sentenced by the court, the person has a right to appeal. Criminal appeals primarily address issues preserved at trial or fundamental errors. Issues on appeal usually revolve around the legal sufficiency of the evidence.
Criminal appeals also address due process violations, trial court errors by improperly excluding evidence, the improper admission of evidence over a defense objection at trial, improper arguments by the prosecutor, prosecutorial misconduct by hiding exculpatory evidence, or ineffective assistance of trial counsel.
Attorney for Criminal Appeals in Texas
Contact an experienced criminal appellate attorney at Flanary Law Firm, PLLC to discuss your case. We appeal criminal convictions involving misdemeanor, felony or juvenile cases. In most cases, it is better to hire an different attorney for the appeal than the attorney that argued the case at trial.
Call us for a consultation to discuss your case and the procedures used to file a direct appeal after a conviction. You must act quickly to preserve your rights. For instance, the notice of appeal must include all issues that will be addressed on appeal and it must be filed within 30 days of the sentence being imposed.
Don’t delay. Contact an experienced criminal defense attorney at Flanary Law Firm, PLLC to discuss your appeal after a conviction. Call (210) 319-4385 today.
Criminal Appeal After a Plea in Texas
It is possible under Tex. R. App. P. 25.2, to file an appeal after a person enters a “guilty” or “no contest” plea pursuant to a negotiated plea bargain with the state, but an appeal after a plea is limited to the following:
- issues that were raised in a pre-trial motion and ruled upon before the entry of the plea; or
- issues that the trial court grants permission to challenge on appeal.
The Prosecutor’s Limited Right to Appeal
In some cases, the prosecutor has a limited right to appeal that is limited to issued listed in article 44.01 of the Code of Criminal Procedure including:
- the dismissal of a charging instrument;
- granting a motion to suppress evidence;
- changing a judgment; or
- granting a new trial.
Filing the Notice of Appeal after a Criminal Conviction
In Texas, the criminal appeal starts with the filing of a “notice of appeal” in the trial court. The notice of appeal, when filed within 30 days of the date the sentence is announced in open court, invokes the jurisdiction of the court of appeals.
If the defendant timely files a motion for new trial, then the deadline is extended to 90 days as provided by Tex. R. App. P. 26.2. Under Tex. R. App. P. 26.2, the state only has 20 days to file a notice of appeal after the trial court takes the action form which the appeal is taken.
After the notice of appeal is filed, the record on appeal is prepared. The record on appeal includes the clerk’s record and the reporter’s record as provided by Tex. R. App. P. 34.1. The record on appeal should be prepared within 60 days after the sentencing of the defendant in open court or the signing of an appealable order. A motion to extend time can be granted.
Filing the Appellant’s Brief
The person filing the appeal is known as the appellant. Under Tex. R. App. P. 38.6(a), the appellant’s brief is due to be filed in the court of appeals within 30 days after the record on appeal is filed in the appellate court. The appellee’s brief is usually due within 30 days after the appellant’s brief is filed as provided in Tex. R. App. P. 38.6(b). Then the appellant is permitted to file a reply brief within 20 days after the appellee’s brief is filed as explained in Tex. R. App. P. 38.6(c).
For criminal appeals filed in Texas, the time for filing a brief may be extended if one of the parties asks for an extension which is then granted by the court upon the motion of a party.
Under Tex. R. App. P. 38.1(f)., an appellant’s brief identifies the issues on appeal. The issues on appeal are generally limited to those issues preserved at the trial court level through an objection, motion or request. Although, in some cases, the error is so fundamental to a fair trial that no objection, motion or request is required.
The appellant’s brief contains a statement of the facts and argument explaining why relief should be granted. The statement of facts must include references to the record on appeal. The legal arguments must include the proper citations to the supporting authorities which can include case law, court opinions, rules, statutes and constitutional provisions.
The appellee’s brief is usually written by the prosecutors who represent the state in criminal cases or another prosecutor in their office. The appellee brief responds to the issues raised in an appellant’s brief. The prosecutor representing the appellee often argues that the arguments lack merit, were not properly preserved at the trial level, or were harmless errors that require no relief being granted on appeal.
Either party can request an opportunity to present oral arguments to the appellate court.
The Opinion in a Criminal Appellate Case
Criminal appellate cases are most often decided in a court of appeals by a panel of three Justices. When all the Justices participate in deciding the case, the panel is “en banc.”
The opinion of the appellate court is classified as either an “Opinion” or a “Memorandum Opinion” and are notated as “publish” or “do not publish.” Some opinions are designed to be published because it deals with a particularly important or novel issue.
Discretionary Review for Criminal Appeals in Texas
When further review is sought from the court of appeals opinion in a criminal case, the review is sought in the Texas Court of Criminal Appeals. For a review of a court of appeals opinion in a juvenile case, the review is sought in the Texas Supreme Court. Both of these courts always sit “en banc.”
It is important to remember that a review by the Court of Criminal Appeals or the Texas Supreme Court is discretionary. This means the appeal is not a matter of right. Under Tex. R. App. P. 68.3, a petition for discretionary review in a criminal case must be filed directly with the clerk of the Court of Criminal Appeals.
The appellate court’s judgment must be enforced when a mandate from an appellate court is received by a trial court clerk after the appellate process is completed.
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Donald H. Flanary III
“I see our duty as more than just counselors and advocates, but as warriors.”