.png)
What is an Appeal?
In an appeal, the losing party at trial (who is called the appellant on appeal) requests that the court of appeals review the trial court’s decision for specific mistakes or errors. The appellant argues those specific mistakes or errors in a written brief that the appellant files with the court of appeals.
The written brief can raise a single issue or multiple issues with the trial court’s proceedings. For instance, the appellant may argue that the trial court should not have admitted certain evidence at trial and that the evidence admitted at trial did not support the jury’s verdict. The written brief must comply with a number of appellate rules, it must cite to specific statutes and cases to support the arguments, and it must cite to the record when discussing the facts of the trial court proceedings.
The other party (who is called the appellee on appeal) then files a written brief in response. The appellee may argue, for instance, that the trial court’s decision was correct or that the error did not harm the appellant, in other words, that any error did not affect the verdict.
The court of appeals reviews the written briefs from both parties and may hear short oral arguments from the attorneys for both parties, but the court will not hear witness testimony or retry the case. The court of appeals considers only the evidence that the trial court considered in making its decision. The court of appeals will then issue a written opinion. If the court of appeals decides that there was an error in the trial court in a criminal case, the court of appeals may, depending on the error, order a new trial or enter a judgment of acquittal.
Timeline of the Appeals Process
If a notice of appeal is not timely filed, the right to appeal may be lost.
The appellant must file a notice of appeal within thirty days after the sentencing, unless the defendant’s trial attorney filed a motion for new trial in the case. If a motion for new trial was timely filed, the defendant has ninety days from the sentencing to file a notice of appeal.
The trial court clerk and the reporter must then prepare records of the trial court’s proceedings and must file the records from the trial court proceedings within sixty or 120 days after the sentencing, depending on whether a motion for new trial was filed in the case.
Once the appellate court receives the clerk’s record and the reporter’s record, the appellant typically has thirty days to prepare and file a written brief setting out the appellant’s arguments about what happened in the trial court.
After the appellant’s brief is filed, the other side (the appellee) has thirty days to file a written brief responding to the appellant’s arguments.
There is no deadline for the appellate court to issue its opinion, and the amount of time the court will take to issue an opinion depends on the complexity of the case, the number of issues raised by the appellant, and the overall workload of the court.
Appeal vs Motion for a New Trial
After a conviction, a defendant may file a motion for new trial with the trial court asking for a new trial because of some error that happened at trial. Depending on the error, the motion for new trial will request either an entirely new trial (both guilt/innocence and punishment) or a new trial on punishment (if the error occurred during the punishment phase of trial).
A motion for new trial is not required before appealing a conviction, but if a defendant wants to appeal his conviction based on something that is not in the written record of what occurred at trial, he should first file a motion for new trial to put those facts in the record. This is because a court of appeals will only look at the written record of what happened in the trial court when deciding an appeal, and a motion for new trial allows a defendant to present facts that are not in the written record of the trial. For example, a defendant may request a new trial based on ineffective assistance of counsel, juror misconduct, or newly discovered evidence, which will usually not be supported by the trial record. These facts can be presented in supporting affidavits and in a hearing on the motion in the trial court. Even if the trial court denies the motion for new trial, the defendant can then appeal, and the court of appeals will consider the facts presented in the motion for new trial.
A motion for new trial must be filed with the trial court within thirty days of the sentencing and presented to the trial court within ten days after filing.
Can I Remain on Bond during an Appeal Process?
If you were convicted of a misdemeanor, yes.
If you were convicted of a misdemeanor offense in a Texas state court, then you have an absolute right to be released on reasonable bail while the appellate court reviews your appeal. The trial court does not have discretion to deny bail in these cases.
If you were convicted of a felony, maybe.
You may be released on bail during your appeal of a felony conviction if you were convicted of a non-3g felony offense (a felony not listed in Texas Code of Criminal Procedure 42A.054) and either:
You were sentenced to less than ten years’ confinement, or
Your sentence (no matter how long) was probated and you received community supervision.
However, even if you satisfy the above requirements, the trial court may still deny bail for good cause.
You cannot be released on bail during your appeal if:
You were convicted of any felony and received a sentence of confinement for ten years or more, or
Regardless of your sentence, you were convicted of a “3g offense.”
Preservation of Error
Why won’t the appellate court consider certain issues on appeal?
For most complaints raised in an appeal, an appellate court cannot and will not review the complaint if it has not been “preserved” for appeal. What does this mean?
Preserving error generally means that the trial attorney must have objected at the trial court and that the trial court ruled on that objection at trial in order for a court of appeals to review your complaint on appeal. The trial objection must also be the same as the complaint on appeal. For example, if
Your attorney objects to a witness testimony at trial because it hearsay, and
The trial court rules on this objection, then
You may complain on appeal that the about the testimony being hearsay (and you may not file a complaint on the testimony for a reason other than that it was hearsay, because that is what your attorney objected to).
The preservation of error rules allow the other side and the trial court a chance to correct the error by having it brought to their attention at trial, when the error occurs. Although most complaints must be “preserved” at trial, certain issues can be reviewed on appeal even without an objection at trial. Simply because your trial attorney did not object at trial does not mean your trial attorney was not effective; there may have been a good reason for not objecting. If, however, there was no reason not to object and the failure to object caused you not to receive a fair trial, you may have a claim for ineffective assistance of counsel.
Trial Defense Lawyer vs Criminal Appellate Lawyer
What is the Difference between a Defense Lawyer and an Appellate Lawyer?
Trial Defense Lawyer
A trial defense lawyer handles all aspects of the original criminal trial, but can also represent you in a new trial, should your case make it back through after an appeal. The responsibilities of your defense lawyer include:
• Cross-examining the prosecution’s witnesses • Challenging the admissibility of evidence • Calling defense witnesses to testify • Presenting evidence • Making final arguments to the jury
Appellate Lawyer
If you are found guilty by the judge or jury at your original trial and appeal, a criminal appellate lawyer should step in to handle the case. An appeals lawyer will be able to approach the case with a more objective perspective than the criminal lawyer who has already been through the case with you, allowing them to see the case as the appeals judge may. The appellate lawyer responsibilities include:
• Filing a written notice of appeal • Ordering a transcript of the testimony and arguments from the court reporter • Conducting extensive legal research • Filing an appellate brief pointing out any reversible errors made by the judge or prosecutor during the trial • Offering oral argument to the appeals court
If the appeals lawyer can prove to the court that there were mistakes made during your trial that could have changed the outcome of your trial, the court will reverse the conviction and order that you get the new trial.