What Happens When You Lose An Appeal?
Updated: Feb 11
You appealed your conviction to the court of appeals, and the court of appeals affirmed the trial court’s decision. You’ve lost your appeal, but you still have options.
Rehearings, Reconsiderations, and Reviews
File a Motion for Rehearing or a Motion for Reconsideration en Banc
If you think the court of appeals erred in some way in its written opinion, you can file a motion for rehearing or a motion for “en banc reconsideration” with the court of appeals. Essentially, you are requesting the court to reconsider its ruling.
A motion for rehearing must be filed within fifteen days of the court of appeals’ judgment.
File a Petition for Discretionary Review with the Texas Court of Criminal Appeals
If you lost your appeal, you can appeal to the Texas Court of Criminal Appeals by filing a petition for discretionary review. The Texas Court of Criminal Appeals is the highest court in Texas to hear criminal cases. Unlike the lower courts of appeals which must rule on every appeal, the Texas Court of Criminal Appeals has discretion to consider your appeal or refuse to consider it.
A petition for discretionary review must be filed with the Texas Court of Criminal Appeals within thirty days after either the day of the court of appeals’ judgment or the day that the court of appeals overruled any motion for rehearing.
File an Application for Writ of Habeas Corpus
In addition to the right to appeal, a person convicted of a criminal offense in Texas may file an application for writ of habeas corpus attacking a conviction. Habeas relief is an extreme remedy that is available only for certain constitutional violations and jurisdictional or fundamental defects.
The strict deadlines for appealing convictions (as mentioned above) do not apply to post-conviction habeas applications. And habeas applications – unlike direct appeals – can raise new facts and arguments that were not presented in the trial court and are not in the written record from the trial.
Obtaining habeas relief is not easy, and the first step is identifying a proper issue for habeas relief. For example, issues that have been raised and rejected on direct appeal or that could have been raised on direct appeal generally are not proper grounds for habeas relief. Some issues commonly raised in post-conviction habeas applications include ineffective assistance of counsel, involuntary guilty pleas, the State’s failure to disclose material, exculpatory evidence, the State’s use of false or perjured evidence at trial, and new evidence showing actual innocence.
After the Texas Court of Criminal Appeals had an opportunity to rule on your federal claim, you have the right to file an application for writ of habeas corpus in federal court.
Seeking Help with the Appeals Process?
Clearly, the appeals process involves a lot of nuance. If you feel you’re being bounced around the court system, call the Sparks Law Firm for guidance. We handle criminal appeals cases and have an in-house appeals attorney with over ten years experience in criminal appellate law.