Texas Criminal Appeals

A Texas criminal appeal is your opportunity to persuade the court of appeals that a legal mistake happened in your case that means your conviction or sentence should be reversed. There are 14 intermediate courts of appeal in Texas that decide cases from each region. The intermediate courts hear appeals from county courts and district courts. Your appeal will most likely be decided by the court of appeals in your area.

How does a criminal appeal work in Texas?

The court of appeals is limited to considering the evidence presented to the trial court. That means you cannot introduce new evidence in an appeal. Instead, a panel of three judges on the court of appeals will look at what happened at the trial court, consider the law and the arguments made by the parties, and make a decision.

Stages of an Appeal

First, you must file a “notice of appeal,” which is a short document telling the court that you have decided to appeal your case. You file this notice in the Clerk’s office of the court where you were convicted. The Clerk will then send the notice, along with other information about the case to the appellate court.
In Texas, you must file the notice of appeal in a criminal case within 30 days of the date you are sentenced. However, if you filed a motion for a new trial, you must file the notice of appeal within 90 days after the date you were sentenced.
If you choose to hire me before the time to file a notice of appeal has expired, I can file the notice for you. But you should file the notice as quickly as possible. Ask your trial attorney to file the notice for you or you may file the notice yourself. If you are not sure whether you want to appeal, it is a good idea to file a notice of appeal to preserve your right to appeal. If you later decide you do not wish to appeal, you may ask the court to dismiss the appeal.
The Record is everything the court of appeals will look at when deciding your appeal. The record consists of two parts:
(1) the “clerk’s record” contains all of the documents that were filed in the case, such as the indictment and any pretrial motions; and
(2) the “reporter’s record” contains a transcript of what happened at trial and pre-trial. At trial and in many court hearings, there is a court reporter who types down everything that was said.
A successful appeal must show, based on the record, that an error occurred that justifies reversing the conviction or sentence. The record normally takes a month or two to prepare. Once the Record is submitted to the court of appeals, we have 30 days to file your initial brief.
My job is to examine the Record in your case, identify any mistakes made by the trial court, research the legal issues that I find, and present those mistakes to the court of appeals. I will file your initial brief, which is a written document that contains our arguments for what we believe the district court got wrong in your case. The brief explains to the court of appeals why your conviction or sentence should be overturned and includes citations to the law that supports our arguments.
After we file our initial brief, the State has 30 days to file a response brief. The response brief explains to the court of appeals why the State disagrees with our arguments and why the State believes your conviction or sentence should stand.
After the State files its response, we may choose to file a reply brief. We have 20 days to file the brief. In the reply, we point out any errors in the State’s brief and tell the court of appeals why we should win the appeal. However, a reply brief is not required and sometimes the court of appeals will rule before one is filed.
In some cases, the court of appeals will ask for “oral argument.” If the court orders oral argument, I will travel to the court of appeals and argue your case in person. The State will also send a prosecutor to argue their side. Oral argument isn’t always granted in criminal cases but when it is, it is an encouraging sign that the court is interested in the issues raised in that appeal. In other cases, the court will simply decide the issues “on the briefs” without oral argument.
A three-judge panel at the court of appeals will decide your case. Once they have reached a decision, the court will issue a written opinion explaining whether they are reversing your conviction or sentence (meaning you won the appeal) or affirming your conviction and sentence.

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How Long Will My Appeal Take?

There is no set timeline for exactly how long a Texas criminal appeal will take. After the court has received all appellate briefs and heard oral arguments, the court may rule at any time but there is no deadline for the court to reach a decision. In general, an appeal takes about one year from notice of appeal to the court’s decision.

What Are My Options If I Lose My Texas Criminal Appeal?

If you lose your appeal, you can consider some or all of the following options:

You can ask the court of appeals to reconsider its decision. There are two ways to do this. You may ask the three-judge panel that issued the decision in your case to reconsider. You may also ask for “rehearing en banc,” which means you are asking all of the judges on the court of appeals to hear your case, instead of the three-judge panel. Rehearing en banc is only granted when the court’s decision conflicts with another decision from the court of appeals, or when extraordinary circumstances require it. You have 15 days to file a motion for rehearing after the court of appeals enters its judgment in your case.
The Texas Court of Criminal Appeals (CCA) is the highest appeals court for criminal cases in Texas. The CCA is a discretionary court, which means that it is not required to consider every case. Instead, you may file a Petition for Discretionary Review (PDR) asking the CCA to hear your appeal. The CCA grants a small percentage of PDRs. The CCA is most likely to grant a PDR for a case that involves a novel issue of the law or a disagreement between lower courts of appeals. You have 30 days from the date the court of appeals entered judgment in your case to file a PDR.
You may file a “cert petition” asking the United States Supreme Court to hear your case. The U.S. Supreme Court only considers a tiny fraction of the cases presented to it but if your case involves an issue of interest to the Supreme Court, it may be worth filing a cert petition. The Supreme Court will only take cases that present issues of federal law, which usually means the case involves a constitutional violation. You have 90 days from the date your judgment became final (either from the court of appeals or the CCA) to file a cert petition.
Under Texas Code of Criminal Procedure article 11.07, you may challenge your Texas conviction based on constitutional violations. Unlike appeals, habeas proceedings allow you to present new evidence outside of the record created for appeal. Habeas applications are filed in the court of conviction, though the CCA will make the ultimate decision. While there is no hard deadline to file a habeas application, if you wait too long, the court may dismiss your claim based on the doctrine of laches, which means you should have complained about it earlier. Habeas proceedings are complicated and require a thorough understanding of habeas law. It is important to consult with a knowledgeable habeas attorney before filing an 11.07 application, as you may damage your chances of relief if not done properly.
You may also ask the federal courts to determine whether your constitutional rights were violated during your state court proceedings. A 2254 motion asks the court consider whether you are in state custody “in violation of the Constitution or laws or treaties of the United States.” 2254 motions are extremely complex and require a thorough understanding of habeas law. It is important to consult a knowledgeable habeas attorney before filing a 2254 motion, as you may forfeit federal review of the motion is not done properly. As a general rule, you have one year to file a 2254 motion in federal court from the date your conviction becomes final, though there are exceptions to this rule.