Texas Criminal Appeals: Understanding the Process

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If you are convicted of a criminal charge in Texas, it’s your right to request that a higher appeals court review the conviction. This legal action is known as an appeal. The higher appeals court is presented with the record from your trial, and your criminal defense attorney will likely provide them with an appellate brief, which includes arguments that support your conviction being improper.

An appeal is an important legal tool that can bolster your legal rights, and having a seasoned Killeen criminal defense attorney with an impressive array of experience conducting successful appeals in your corner is always well-advised.

Direct Appeals

There are two distinct types of criminal appeals in Texas, and one of these is the direct appeal. In a direct appeal after conviction, you ask the court of appeals to overturn your sentence based on a legal error made by the judge during your trial.

In a direct appeal, the amount of time you have to file the required notice of appeal is brief, and without this notice, the appeals court does not have the authority to consider an appeal on your behalf. Typically, the deadline for filing this notice is 30 days from sentencing, so acting quickly is key.

A Motion for New Trial

If you file a motion for a new trial, it affords an additional method of review. If you are successful in this effort, it can save both time and money in the march toward obtaining a retrial – as compared to doing so through appeal.

If your motion for a new trial is unsuccessful, you generally retain the right to seek review on appeal. If you have filed a motion for a new trial, your deadline for filing a notice of appeal is extended to 90 days from sentencing.

There is also what is classified as a premature notice of appeal, which is filed post-conviction but prior to sentencing.

Basic Requirements for a Notice of Appeal

The basic requirements for a notice of appeal include the following elements:

  • The notice of appeal must be in writing.

  • The notice of appeal must be filed with the clerk of the trial court in question.

  • While no specific legal language is required, the appeal must report that you – as a convicted defendant – wish to appeal your conviction.

Late Notice of Appeal

If you miss the deadline for your notice of appeal, you may file a late notice of appeal with the clerk of the trial court that heard your case while simultaneously filing a motion for an extension of time with the court of appeals.

You have 15 days from the relevant deadline to take both these actions, but the court has discretion on whether to accept the late filing. If you are interested in appealing the outcome of your case, it is important to remember that the clock is ticking and that making timely filings is always to your advantage.

Writ of Habeas Corpus

The second kind of appeal is called a writ of habeas corpus, which translates to “produce the body.” A writ of habeas corpus is a broader form of appeal, which sometimes allows evidence that is outside the scope of the original trial.

The habeas corpus appeal is often used to assert the constitutional rights that we are all entitled to – whether convicted of a crime or not and whether incarcerated or not. As such, this form of appeal is often used in the face of unfairness or abuses within the prison system. Deadlines for habeas corpus appeals are much less restrictive.

Direct Appeals Are Based on the Trial Record

At your trial, a court reporter created a record of the process, and the clerk compiled all the documents filed in your case. To bring a successful appeal, you must be able to demonstrate all the following:

  • That your trial contained an error

  • That the error in question was preserved for review

  • That you were harmed by the error

The record in your case includes both the reporter’s record and the clerk’s record. If something happened at your trial that is not included in either record, the remedy is filing a formal bill of exception.

Arguments that Are Commonly Employed for Overturning Convictions

Every criminal case and every attendant appeal follows its own path that is based on the unique circumstances involved, but the kinds of arguments that are generally employed at appeal tend to break down into several basic categories.

Your knowledgeable Killeen criminal defense attorney will help you identify the arguments that will best support your request for an appeal.

Insufficient Evidence

If the state did not have evidence sufficient to support your conviction, it could lead to a successful appeal. Every criminal charge includes certain elements, and to be convicted of the crime, the state must prove that each of these elements applies. Without sufficient evidence, this can be difficult or impossible to achieve.

If you had an affirmative defense, which means you had a legal reason for doing what you did, an appeal based on insufficient evidence could apply if the state lacked the evidence necessary to disprove your affirmative defense.

Admission of Improper Evidence

Any evidence that was obtained in violation of your Fourth Amendment right to be secure in your person, house, papers, and effects should not be allowed in court. This amendment is known as the right against unreasonable search and seizure. Evidence that is obtained illegally is often referred to as “the fruit of the poisonous tree,” and it’s not allowed at trial.

Improper Admission of Confession

Under your Miranda rights, you must be told that you have the right to remain silent and the right to an attorney upon arrest. A confession elicited while a person who has not been Mirandized is enduring a custodial interrogation is generally inadmissible in court.

Ineffective Assistance of Counsel

If your criminal defense attorney made significant errors during your trial that likely affected the outcome of your case, it may support an appeal. This argument is generally reserved for writs of habeas corpus, but not always.

Denial of the Right to a Speedy Trial

You have the constitutional right to a speedy trial, and Texas appellate courts gauge whether a trial is indeed speedy by carefully analyzing all the following factors:

  • The amount of time your trial was delayed

  • The reason your trial was delayed

  • Whether or not you sought a speedy trial

  • Whether or not you were harmed by your trial being delayed

Errors in Relation to the Statute of Limitations

Most criminal charges have a statute of limitations attached, which means that the prosecution has a predetermined amount of time in which they can press charges. Once this window has passed, the prosecution can no longer press charges. There are, however, some exceptions to this restriction.

Failure to Disclose Exculpatory Information

Both the prosecution and the defense are required to share relevant information with one another. Part of this exchange includes the prosecution sharing evidence that supports the defendant’s innocence, which is called exculpatory evidence. Failure to share exculpatory evidence can overturn a conviction.

This error is a form of prosecutorial misconduct – of which there are many. Improper appeals to the jurors’ emotions by the prosecution are another prime example that is similarly prohibited.

Errors in Jury Selection

Juries play an important role in the criminal justice process, and when the court causes errors in jury selection, such as improperly denying a peremptory challenge to a juror, it can significantly affect the outcome of the case.

Errors in Jury Instructions

The instructions the judge gives the jury can have a profound effect on the verdict at which they arrive, which makes these instructions a critical matter. Judges are held to careful guidelines and restrictions concerning jury instructions, and failure to follow them can support an appeal.

The appeals court is called upon to determine whether the judge’s error interfered with your right to a fair and impartial trial.

Constitutional Errors

If one or more of your constitutional rights were trampled as a matter of error by the judge or prosecution, you can seek a legal remedy.

However, errors in this category are subject to the “harmless error” rule. This restriction means that the court of appeals is not required to reverse the judgment against you if it determines beyond a reasonable doubt that the constitutional error in question did not contribute to either your conviction or the punishment you received.

The Appeal Process

Once the appeals process begins in Texas, your defense attorney will prepare the appeal record, which includes the details of your case and trial. At appeal, you will not bring new witnesses and will not present new documents or affidavits. An appeal is not a new trial. Instead, the appeals court will review your case record in an effort to identify any legal errors.

It’s important to note that the testimony of witnesses and experts can come off differently during this review because the witnesses are not there to make their comments. Instead, the appeals court reads the transcript of their words.

A seasoned criminal defense attorney will help you navigate each step of the appeals process and reach the best possible result for your case. Contact a skilled Texas attorney today to get the guidance you need for your appeal.


At this point, your attorney has 30 days to either file an opening brief or request an extension. From here, the prosecution will file their response, which will likely prompt your attorney's responding brief.

The Review

Once these filings have been made, the appeals court will review the trial record and the briefs filed. Both your attorney and the prosecution will also be allowed to make oral arguments to the court. At this juncture, the court allows 20 minutes of questions and answers regarding the case.

From here, the appeals court will issue its written opinion regarding whether or not the trial court’s findings will continue to stand.

Criminal Appeals that Fell through the Cracks in Texas

According to The Texas Tribune, about 100 criminal appeals in the most populous county in Texas “fell through the cracks” for 10 years or more. Naturally, there is a lot of confusion about how an issue of this magnitude happened in the first place. The discovery also led to both of the following questions:

  • Are there more appeals that may have been lost?

  • Is it possible to address the legal challenges raised in the formerly lost appeals at this late date?

Lost and Found Cases

A judge in the Texas Court of Criminal Appeals has taken to calling the involved appeals “lost and found” cases. The issue was unearthed in 2022 when Texas judges sought to ease the backlog of criminal cases that were blossoming in response to the pandemic.

In the process of reviewing criminal cases, the judges came across dozens of pending appeals cases – all of which were filed either in or prior to 2013. Each case involves an individual who challenges the constitutionality of either their sentence or conviction.

Procedural Rule Change in 2013

A procedural rule change was implemented in 2013 that requires district clerks throughout the state to forward criminal appeals to the Court of Criminal Appeals within six months of filing. In this instance, the clerk’s office sent the newly rediscovered appeals cases on to the highest criminal court in the state with no explanation for the more than ten-year delay.

Who Is at Fault?

It is unclear what exactly led to these appeals cases lying dormant. Various judges and attorneys have blamed various combinations of the following elements:

  • Overworked public defenders

  • Defense attorneys who care too little about their clients’ rights

  • Ineffective case management

  • Trial court judges who are simply going through the motions

Judge David Newell, however, pins fault on the state’s criminal justice system. He concluded, “If there are holes in our current procedures that need to be plugged going forward, the court needs to find them.”

Turn to an Experienced Killeen Criminal Defense Attorney for the Help You Need

Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is an accomplished criminal defense attorney with an imposing range of experience successfully guiding challenging appeals toward favorable resolutions. Learn more about what we can do to help you by contacting us online or calling us at (254) 781-4222 today.

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