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Appeals in Texas

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Parties to a legal proceeding can sometimes find themselves facing an unfavorable ruling or judgment at the trial court level.  Attorneys and clients alike are then left facing an overwhelming and complex appeals process they may not fully comprehend.  In order to adequately understand the Texas appellate process, it is important to be familiar with the structure of the Texas appellate courts and with some basic legal principles essential to a successful appeal.  Having such an understanding will help both attorneys and clients to effectively battle and win a case on appeal.

Structure of the appellate courts.  In Texas, as in most other states, when a person, business, or other party loses a civil or criminal case at the trial level because a judge or jury ruled against them, they must next appeal to the Texas Court of Appeals in the area in which the case was tried. 

In Texas, the state is divided into fourteen districts, each with its own Court of Appeals.  In the larger districts, the courts are made up of six justices, whereas the appellate courts in smaller districts have only three justices.  The justices bear much of the appellate workload and have jurisdiction over all civil and criminal cases, except death penalty cases. 

Above the Court of Appeals, the appellate court system is bifurcated.  All civil and juvenile cases that reach this level are sent to the Supreme Court of Texas where nine judges preside over the case.  Criminal cases, on the other hand, are decided by the Court of Criminal Appeals of Texas, which is also made up of nine judges.  The Supreme Court of Texas and the Court of Criminal Appeals are the highest courts in the state of Texas.  Therefore, if a party loses before a court at this level, there are no remaining options for appeal in the state system, and a party has essentially exhausted all legal remedies.  The only possible exception is for federal constitutional claims that are grounds for a habeas corpus petition, which will initiate a collateral appeal in the federal court.

The Tyler Court of Appeals.  The Tyler Court of Appeals is located in Tyler, Texas.  Its jurisdiction covers seventeen counties in East Texas.  The court is comprised of three judges, called justices.  Presiding over the court is Chief Justice James T. Worthen.  Serving with him are Justice Sam Griffith and Justice Brian Hoyle.  They are fine jurists known for conservative adherence to state law.  Mr. Volberding appears regularly in the Tyler Court of Appeals.

How the appeals process works.  There are many important procedural steps that must be followed in the appeals process.  However, there are two vital tools for the lawyer or party who has lost a case at trial and wishes to pursue the case on appeal.  These include the notice of appeal and motion for a new trial.

In every case, a skilled lawyer will always file a notice of appeal at trial before leaving the court room.  This is especially important in criminal cases because it assures that the rights of the defendant are protected.  In a criminal case, if the attorney has not been retained or appointed for the appeal, then he or she should have the defendant sign the notice of appeal and provide his address.  If the attorney signs the notice of appeal, he or she will be deemed to be the attorney in the case on appeal and will have difficulty withdrawing.

In a criminal case, the deadline for filing a notice of appeal is measured 30 days from date the judgment is pronounced in open court, not from the date when final court opinion is signed.  In a civil case, the 30 days begins when the judgment is signed, not when the decision is announced in court.  These rules are important.  Failure to file the notice of appeal within the thirty days will end the right to appeal.

The moving party also has the option to simultaneously file a motion for new trial, in which case the deadline for filing a notice of appeal is extended, and the moving party will have 90 days (in both civil and criminal appeals) from the date the sentence or judgment is imposed by the trial court to file a notice of appeal. (See Texas Rule of Appellate Procedure 26.2.)

In addition to the notice of appeal, a moving party is able to file concurrently a motion for new trial.  A motion for new trial is a useful device that allows the losing party to present a point of error with respect to facts that are not in the record, for example evidence of juror misconduct.  (See Texas Rule of Appellate Procedure 21.3).  A motion for new trial does not affect the jurisdiction of the trial court, allowing the court to rule on the case notwithstanding the motion.  The deadline for filing the motion for new trial is 30 days from the date the court imposes or suspends sentence in open court (See Rule 21.4) and can be amended any time during the 30-day period, which may be necessary if new evidence is revealed.

In a criminal case, the lawyer should also file a motion for appointment of appellate counsel at the same time he or she files a notice of appeal, preferably before leaving the courtroom.  Together with the motion for appointment of counsel, the attorney should attach an affidavit from the defendant stating that he or she is indigent.  This motion will protect the defendant’s right to have appointed counsel on appeal, leaving open the option for the defendant’s family or another party to later hire an attorney on behalf of the defendant.

Once the appeals process has begun, the attorney must work to construct the record, since cases on appeal involve a review of the case for legal errors.  The Court of Appeals will only look to the appellate record and will not hear witnesses, accept new affidavits, or conduct a new trial.  The Court will only consider the appellate record which consists of the clerk’s record and the reporter’s record.  

In order to construct the clerk’s record, the attorney must write to the clerk and instruct him or her as to what information to include in the record provided to the Court of Appeals.  The clerk will photocopy the necessary information and charge a per-page fee for any copies sent to the appellate court.  

The appellant’s lawyer will also write to the court reporter to have the transcript from the trial included in the appellate record in civil and criminal cases.  The court reporter will prepare a cost estimate, prepare the transcript, and file it with the court of appeals.  This together with the clerk’s record will constitute the entire appellate record and will be the only information from trial that the justices will review on appeal.

Once these records are filed, the moving party’s lawyer will then have 30 days to file the opening brief or file a request for extension.  Once the opening brief is filed, the opposing party, either the appellee or the state, must submit the response brief.  The appellant may then file a reply brief, addressing the points argued by the state or appellee in their response brief.  

Once the appellate record and the parties’ briefs are before the court, the justices will review the appellate record and the briefs.  They may schedule oral arguments, allowing the attorneys for each party twenty minutes to answer questions presented by the justices.  Once this phase is complete, the justices will submit the case for decision and will issue a written opinion deciding the case.

The party who is not successful on appeal has fifteen days to file a motion for rehearing.  If the motion is denied, the party then has 30 days in criminal cases to file a petition for discretionary review to the Texas Court of Criminal Appeals, or the Texas Supreme Court in juvenile cases.  In civil cases, the parties have 45 days to petition for review to the Texas Supreme Court.  

The petition for review is limited to fifteen pages and should carefully address the significance of the case, why it is special, and why it should be accepted for further review.  If the petition for review is denied, this is the end of the line and the defendant or appellant has no further options to pursue.  If the petition is granted, the lawyers will file additional briefs and the appellate record with be sent up to the Supreme Court.  The court will hear additional oral arguments and will decide the case in a similar fashion, issuing a written opinion that represents the final outcome of the case.

In criminal cases, if a defendant loses at the Court of Criminal Appeals level in Texas, he or she has the right to proceed into federal court with a petition for a writ of habeas corpus under section 2254 of the United States Code.  The purpose of such a writ is to assert a constitutional violation by the state and establish that the appellate courts did not decide the federal constitutional claims correctly.  The Antiterrorism and Effective Death Penalty Act (AEDPA) governs all criminal cases in this regard and sets a high and difficult standard for federal courts to overturn a decision by the state courts.  

It is important to note that any federal constitutional claim that forms the basis for a habeas corpus petition must have been exhausted at the state level.  In other words, the constitutional claim must have been presented to all of the state courts and must have been decided by the court and denied.  A claim cannot be asserted for the first time on appeal.  A failure to present a claim at the trial level results in procedural default and will bar the federal court from reviewing the constitutional claim.

Legal Traps – There are common mistakes that lawyers often make and need to be aware of in order to be successful on appeal.  

1) Present the motion for new trial within 10 days.  In criminal cases, one common error is the failure to present the motion for new trial to the trial judge.  The motion must be formally presented to the judge.  Not the court coordinator, the judge.  This means that the lawyer cannot simply file the motion.  The lawyer must take an additional step and hand the motion to the judge in person and ensure that this occurrence is documented.  The lawyer has ten days from the date that the motion is filed to present it to the judge.  The best practice is to wait for a break during one of the judge’s other proceedings in court.  During the break, the attorney can approach the judge, present the motion, and ensure that the court reporter has made note that the motion was presented and was within the required ten-day period.  Another option to document the presentation of the motion to the judge is by filing an affidavit that states that the attorney personally delivered the motion to the judge and did so within the necessary time period.  

2) Object immediately and continuously.  Another common mistake that attorneys often make at trial is failure to timely and accurately make an objection and state the grounds for the objection.  The key to being an affective trial lawyer is to make an objection at trial to whatever occurs or to whatever evidence is presented that the attorney dislikes.  The objection must be on the record and must clearly state the legal justification for the objection.  This must be done precisely, immediately, and repetitively every time that the issue or evidence comes up during the trial.  Counsel should clearly identify the rules of evidence, state statute, or constitutional provision that acts as the basis for the objection.  This is necessary to adequately preserve the issue for appeal.  Failure to do so will result in procedural default and will waive the ability to appeal the issue later on to courts higher up.   When an appellate judge looks at a brief, the first question asked by the judge is whether there was a timely and accurate objection by the trial lawyer.  If not, the issue or error is waived, and the appellate judge will move on.

3) Act quickly after adverse judgment. An additional caveat to be aware of is the need to act promptly and diligently when considering options for appeal.  When a client is searching for alternatives to deal with an adverse outcome following a trial, whether civil or criminal, the client needs to act quickly within the first week of the court’s ruling.  This will allow the attorney time to take corrective action by filing a motion for new trial or some other type of relief such as a notice of appeal within the 30 day period.  

4) File key appeal documents while still in court.  Whether in a civil or criminal trial, but especially in a criminal trial, the lawyer who has just lost a case should file key appeal documents before leaving the courtroom.  In a civil case, unless the client has hired an appellate lawyer, the lawyer should take his notepad and write out a notice of appeal, have the client sign it, and file it then.  This protects the client’s rights while he examines his options.  In a criminal trial, the lawyer should write out: (a) a notice of appeal signed by the client, and (b) a motion for appointment of counsel.

Parties should always take care to find an attorney who is experienced in appellate law.  The rules are complex and specific with little room for error.  A key qualification to look for when choosing legal counsel is appellate board certification.  In addition, there is also a separate board certificate for civil law, criminal law, real estate, civil appellate law, and criminal appellate law.  Clients may also wish to take into consideration membership in professional organizations for lawyers who practice in specialized areas of law, such as appellate law.  

Texas attorney James Volberding has extensive criminal and civil law experience at both the trial and appellate court level.  He is familiar with the inner workings of criminal procedure and the legal justice system.  His experience both prosecuting and defending convictions gives him an inside edge and distinct advantage in the courtroom.  If you are an attorney or client considering an appeal, contact the Law Office of James W. Volberding and speak with a qualified appellate lawyer who will help you ensure the best outcome in your case.    

 

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