Criminal Appellate Process
Most people are familiar with what a criminal trial should look like. While the television version of a trial is misleading it provides people with some suggestion of what a criminal trial might look like. Television does not often show the criminal appeal that follows the trial. In my experience one of the most important things I do when I first meet with a potential client is to help them understand what the criminal appellate process is like.
Criminal Appeals Overview
Generally criminal defendants have three or four procedural opportunities to reverse their conviction. These four opportunities—in order of when they appear in the criminal case are:
1. Motion for New Trial — Filed within thirty days of the sentence being announced in open court;
2. Direct Appeal — Notice of appeal filed within 30 days of sentence being announced in open court, but the substance of the Direct Appeal is the brief which is due around five months after the notice of appeal was filed;
3. State Writ — Sometimes called the 11.07 writ. Filed after an unsuccessful or partially successful direct appeal (State Convictions Only); and,
4. 2554/2255 Motion (writ) — Federal challenge to the conviction (whether federal or state). Must be filed within 15 months of the end of the direct appeal.
The brief is 90 percent of what an appellate attorney will do for the client. This is the argument that the conviction needs to be reversed or the client needs to be acquitted or that the client needs a new sentencing hearing. The remedy (new trial, acquittal, or new sentencing hearing) is based on the issue identified. An argument that evidence was not admitted but should have been admitted is a claim that will ask for a new trial. A claim that the admitted evidence was insufficient to support the verdict will result in a request for an acquittal. And a claim that there was an error in the sentencing process will result in a request for a new sentencing hearing.
- The name “brief” is misleading. In State Court a brief is limited to 15,000 words (or about sixty pages) and in Federal Court a brief is limited to 13,000 words or about 45 pages. These arguments should not be brief, but should be well developed and persuasive.
- The brief is the most important component of any criminal or civil appeal.
- Staying Informed about the Procedural Progress of an Appeal:
- Necessarily the procedure for each criminal appeal is different. But the good news is that the procedural status of the appeal is readily available on the Internet—regardless of whether the appeal is in State of Federal Court. (whether It is a state appeal or federal appeal)
Texas Appeals (state conviction): cases can be followed by one of two ways:
1. Any recent case can be found using the name of the party or the case number at the following link:
2. A better way to follow a case is to use “Casemail.” Through “Casemail” anyone can receive an email update at any time when there is a procedural development in the case. This requires setting up a free account but that is easy to do, and everyone is eligible to do so. The link to request an account for “Casemail” is: https://casemail.txcourts.gov/MemberCreate.aspx
Federal Appeals (federal convictions)
1. In Federal Court everything is accomplished through PACER. There might be some reference to CM/ECF but following a federal case is best accomplished through PACER. Again you will need an account. PACER charges nominal fees for use but those fees are being reduced every year. The link to acquire a PACER account is:
Generally a direct appeal should follow this procedural route:
1. Sentence Announced in Open Court (generally there are not appeals when a defendant has been acquitted because the State does not have the same right to appeal as a defendant does);
2. Motion for New Trial: This should be filed within 30 days of the sentence being announced in open court;
3. Notice of Appeal: This should be filed within 30 days of sentencing being announced in open court (longer if there was a motion for new trial filed). But in Federal Court this must be filed within 14 days. These deadlines are important, but the appellate court can grant leave for more time if that is needed and is appropriate.
4. Request the Production of the Record: The record is every word that was spoken during trial and every document that was filed in the case. This should be done at the same time as the filing of the notice of appeal;
5. Record is Filed: The deadline to file the record is complicated and often extended. But it generally takes a month or two to produce;
6. Appellant’s Brief: When the latter of either the clerk’s record or the reporter’s record is filed, then the Appellant (usually the criminal defendant) has thirty days to file a brief. This can be extended for an additional thirty days;
7. Appellee’s Brief: Due thirty days after the Appellant’s brief is filed. This too can be extended for thirty days as needed;
8. Appellant’s Reply Brief: Optional brief that gives the Appellant the “last word.” This can be a powerful tool for an Appellant, but it can also be a detriment to the Appellant’s case. The attorney will decide whether the case should have a reply brief filed;
9. Submission Date: The submission date is the first day on which the case can be resolved. Whether the case is submitted on oral argument or on the briefs it is very unlikely that the case will be resolved on the actual submission date. Instead the case is likely to be resolved months after the submission date. The attorney has no control over when the case is submitted or when it is resolved.
10. Opinion: A case is resolved with an opinion. This appears electronically in the attorney’s email account. The opinion should address all issues that the Appellant identified in the brief and the opinion should explain why the court agreed with the Appellant or why the court disagrees with the Appellant.
11. Post-Opinion the procedure can go in a variety of ways but these including going to the higher court (Court of Criminal Appeals in Texas and the United States Supreme Court in Federal Cases). But it can also involve motions for rehearing. Motions for rehearing are often skipped but can be a powerful tool for a client.
Criminal Appeal Conclusion
A criminal appeal is a difficult and demanding process. I am a former briefing attorney who worked for an appellate justice in the First Court of Appeals in Houston. I learned the procedure for appeals from one of the best appellate justices in the State. But, more importantly, from that justice I learned how to advocate for my client in a way that an appellate justice will respond to.
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Criminal Appellate Lawyer Niles Illich
Why Choose Me ~ I Learned From The Best
I learned from the best. When I graduated law school, I did not know how to be an effective appellate advocate. But in my first job after law school I clerked for one of the most accomplished appellate judges in Texas. I look back on this like it was appellate “boot camp” and advanced legal writing all combined into one demanding year. This was not an easy year for me, but I learned more in that year about appellate writing than I did in the prior three years of law school.
My direct line is (972) 204-5452 and I encourage you to call me or you can reach me through my contact page.