If you have been found guilty of a crime in Texas and you believe that the judge erroneously admitted or excluded evidence or that the jury received improper instructions from the court, you may have the right to appeal your conviction. It is vital that you hire attorneys who are familiar with the rules and procedures of the appellate process. Among Texas lawyers, the attorneys at Wyde & Nation have decades of experience in devoting a substantial portion of their practice to criminal appeals and understand, in great detail, the complex procedure for prosecuting a successful appeal.
An individual convicted of a crime has thirty (30) days in Texas and ten (10) days in Federal Court, in which to file a notice of appeal. If you wish to appeal a conviction, it is urgent that you contact a criminal appeals attorney immediately as time is of the essence.
The following are links to each of Texas' highest civil appellate court, the Texas Supreme Court. Texas' highest criminal appellate court is the Court of Criminal Appeals. Prior to either one of these courts hearing any appeal, a case or issue is generally appealed to one of Texas' intermediate appellate courts listed below.
Following a guilty verdict, a criminal defendant, the defendant is confronted with two remedial options that demand an immediate choice: defendant can file a notice of appeal pursuant to Rule 4(b) of the Federal Rules of Appellate Procedure within a strict ten-day period, or one of several post-verdict motions.
A defendant can file one of five post-verdict motions:
Motion for a New Trial under Rule 33 of the Federal Rules of Criminal Procedure. This motion may be granted (1) in “the interests of justice or (2) if “newly discovered” evidence is found within three years after the verdict or finding of guilt. A motion for new trial must be filed within seven (7) after the entry of judgment, within any other period ordered by the court. A new trial motion may be filed after the verdict but before the entry of judgment, and it will be the court as a post-verdict motion for judgment of acquittal under the same strict standards set forth in Rule 29, Fed.R.Crim.P.
Motion to Arrest Judgment under Rule 34 of the Federal Rules of Criminal Procedure. This is a very restrictive remedy motion. Relief can be granted only if (1) the indictment does not charge an offense or (2) the district court does not have jurisdiction over the offense charged. Motion for correction of sentence as a result of a technical or some other clear error. This motion is authorized by Rule 35(a) of the Federal Rules of Criminal Procedure.
Motion for Clerical Mistakes in the judgment under Rule 36 of the Federal Rules of Criminal Procedure.
Motion to Vacate Sentence under 28 U.S.C. § 2255, or a Writ of Error coram nobis
FEDERAL CRIMINAL APPEALS DEADLINES
Rule 4(b) of the Federal Rules of Appellate Procedure governs the requirements for filing a notice of appeal. The notice must be filed in the district court within ten (10) days after the entry of either the judgment This ten-day time period is tolled (temporarily stopped) if the defendant files a Rule 29 motion for judgment of acquittal, Rule 33 motion for new trial, or a Rule 34 motion to arrest the judgment. A notice of appeal, however, must be filed within ten days after the district court has disposed of any or all of these motion(s). Upon a finding of excusable neglect or good cause, the district court may, with or without motion, extend the time for filing the notice of appeal for a period not to exceed thirty (30) days.
The filing of a notice of appeal under Rule 4(b) does not divest the district court of jurisdiction to entertain a motion to correct sentence under Rule 35(a) of the Federal Rules of Criminal Procedure. But the filing of a Rule 35(a) motion does not suspend the ten-day time requirement for filing a notice of appeal.
Once the district court record, a defendant has forty-five (45) days under Rule 31 of the Federal Rules of Appellate Procedure to file his/her brief. The government has thirty (30) days to file its brief. The defendant then has fourteen (14) days to file a reply brief.
If the court of appeals denies the appeal, defendant has ninety (90) days in which to file an application for a writ of certiorari to the United States Supreme Court seeking review of the adverse judgment by the appeals court.
TEXAS STATE CRIMINAL APPEALS
Article 44.02 of the Texas Code of Criminal Procedure authorizes a general right to an appeal for someone who has been convicted of a crime in either the County or District Courts of the State of Texas.
Except in death penalty cases, a defendant in a criminal case must file his direct appeal to the appropriate Texas court of appeals. If the relief sought in the direct of appeals is denied by the court of appeals, the defendant may then petition for discretionary review to the Texas Court of Criminal Appeals which has “final appellate and review jurisdiction in criminal cases” in the State of Texas. Appeals in capital (where the death penalty has been imposed) cases must be taken directly to the Court of Criminal Appeals.
It is critical that a criminal defendant timely preserve issues for appeal in the trial court and properly present them to the appeals court in order to have these issues reviewed at the appellate level. Failure to do so will result in automatic denial of relief on those issues under the rules of appellate procedure.
Following conviction, the first procedural step a defendant should take is to file a Motion for a New Trial under the guidelines set forth in Rule 30 of the Texas Rules of Appellate Procedure. The motion must be filed prior to or within 30 days after imposition or suspension of sentence, and it must be presented to the court within ten days after its filing. If the court fails to rule on the motion within seventy-five days, it is considered denied as a matter of law.
Rule 30(b) lists nine grounds upon which a motion for new trial may be based:
(1) Except in a misdemeanor case when maximum punishment may be by fine only (cases like traffic tickets), where the accused is an individual who has been tried in his absence, unless otherwise authorized by law, or has been denied counsel; (2) Where the court has misdirected the jury as to the law or has committed some other material error calculated to injure the rights of the accused; (3) Where the verdict has been decided by lot or in any other manner than by a fair expression of opinion by the jurors; (4) Where a juror has received a bribe to convict or has been guilty of any other corrupt conduct; (5) Where any material witness of the defendant has by force, threats or fraud been prevented from attending the court, or where any evidence tending to establish the innocence of the accused has been intentionally destroyed or withheld preventing its production at trial; (6) Where new evidence favorable to the accused has been discovered since trial; (7) Where after retiring to deliberate the jury has received other evidence; or where a juror has conversed with any other person in regard to the case; or where a juror became so intoxicated as to render it probable that his verdict was influenced thereby; (8) Where the court finds the jury has engaged in such misconduct that the accused has not received a fair and impartial trial; and (9) Where the verdict is contrary to the law and evidence.
In addition to these nine statutory grounds, the trial court may grant the motion based on either ineffective assistance of counsel or in the “interests of justice.”
An “out of time” Motion for a New Trial may also be heard at the appellate level. The rules of appellate procedure allow a court of appeals or the criminal court of appeals to suspend, on motion or sua sponte (on the Court’s own motion), any of the rules of appellate procedure.
The third way a defendant may be returned to his pre-sentence status is through a Motion in Arrest of Judgment. This motion will be granted only if the defendant can clearly demonstrate that his conviction was obtained in violation of an applicable law. For example, a defendant must show that the verdict was substantially defective because of an improper indictment or information
STATE CRIMINAL APPEALS DEADLINES
If a criminal defendant does not file a motion for new trial or motion in arrest of judgment, he must file a Notice of Appeal within thirty days after imposition or suspension of sentence (or the date the trial signed an appealable order) in order to invoke the jurisdiction of the court of appeals under Rule 40.2 of the Rules of Appellate Procedure.
If the defendant, however, timely files a motion for new trial, the deadline for the defendant to file his notice of appeal is extended to ninety days from the imposition or suspension of sentence.
