Challenging A Felony Criminal Conviction In Texas
By: Susan J. Clouthier
You or a loved one has been convicted of a felony in Texas, and you want to know your options. Depending on your particular circumstances, there are a variety of options available to potentially reverse the conviction and have an opportunity for a new trial. In some limited situations, you can have your conviction reversed and be granted an acquittal. Time may be of the essence, so it is vitally important to consult with an experienced criminal appeals attorney as soon as possible.
The first step after many criminal convictions is to file a Motion for New Trial. Your trial counsel can do this right after your conviction, although you have 30 days after the final judgment to file it. If that is denied, the following are your next steps.
The first option available to most criminal defendants is a direct appeal. The notice of appeal in Texas courts is due to be filed in the trial court within 30-days of the final judgment or denial of Motion for New Trial. It is critical to not miss this deadline! You or your trial counsel can file the Notice of Appeal on your behalf before you hire an appeals attorney– it is only a one-page document notifying the court you plan to appeal the conviction. After the Notice of Appeal is filed, the appeal will be assigned to one of the 14 Texas appellate courts, depending on the county in which you were convicted. There will be a three-judge panel at that appellate court assigned to your case. At that time, the appellate court will set deadlines for paying the fee, ordering the transcript and filing the brief. The transcript is going to be a separate fee paid directly to the court reporter. The cost is based on the length of the trial or sentencing hearing. It may range anywhere from a couple hundred dollars to several thousand. An indigent defendant using a court appointed appeals attorney does not have to pay for the transcript.
Your attorney will ultimately file two briefs—the opening brief and a reply brief. The opening brief is due 30-days after the transcript is filed with the court of appeals. The State’s deadline to file its response is 30-days from the date in which the opening brief is filed. Then, the reply brief deadline is 20-days after the State files its response. The appellate court has the discretion to decide the case on the briefs only or they may elect to have oral argument. Oral argument is where the attorneys argue before the panel at the courthouse. It is important to note that the appellate courts do not often grant oral argument even if you request it. Generally, the briefs are complete and have all the written argument necessary for the court to make a decision.
Another important thing to mention about appeals is appeals are extremely time consuming and difficult. I encouraged you to select an experienced attorney who specializes in this area. The attorney must become fully familiar with all the facts of the case, review the transcript of the trial, research all of the applicable law, and write a succinct and well written brief that could persuade the court to change the outcome of the case. Experienced attorneys have a better idea what the courts are looking for.
Finally, arguments in an appeal are limited to what is available in the appellate record. This means that your attorney’s arguments are limited to what is included in the trial court record and the transcript of the trial. Rules also exist about preserving error for appeal. This means that the trial lawyer has certain responsibilities at the trial level to ensure the appeals lawyer can make the legal argument to the appellate court. If the trial lawyer failed to preserve error, the appellate court will not consider the argument. The point of this rule is to give the trial court the chance to correct the error before it is brought on appeal. It is more efficient for the error to be fixed at trial then for the error to be pointed out after whole trial occurred, resulting in having to try the defendant again.
If you have missed the 30-day deadline for filing Notice of Appeal, there is still a possibility to file a direct appeal, but it is more complicated. An experienced appeals attorney can assist with the process. You will need to file a Petition for Writ of Habeas Corpus for an Out of Time Appeal under the Code of Criminal Procedure section 11.07. This is filed in the trial court. If granted, you may file a direct appeal with the same procedures as above.
Please note, if you pleaded guilty, no contest or you signed a PSI, you may have waived your right to a direct appeal. It is important to know this information before calling an attorney so you do not pay for an appeal that will ultimately be dismissed due to waiver. There are other options; however, if you waived your right to appeal– you can still file a Petition for Writ of Habeas Corpus to Set Aside a Final Felony Conviction under Code of Criminal Procedure section 11.07 arguing ineffective assistance of counsel or involuntary plea. (See section on 11.07 below).
Motion for Rehearing
If you lose the appeal, there are a couple options, the first of which is to file a Motion for Rehearing. There are two different ways to ask for a rehearing. A defendant can go back to the same three-judge panel, or you can ask for the entire court to hear the case. This is called a Motion for Rehearing En Banc. The Motion for Rehearing is due 15 days after the appellate court issues its opinion. Extensions are available. This is not always a necessary step, as it is often an extra cost in legal fees. It is wise in the situation when the appeals court ignores important case law or misstates law in some way, or if the court completely ignores one of the appealed issues. An experienced criminal appeals attorney can advise whether a Motion for Rehearing would be helpful.
Petition for Discretionary Review
The next step is to file a Petition for Discretionary Review, often referred to as a PDR, with the Court of Criminal Appeals. This Court is the highest court in Texas that hears criminal cases. The PDR is discretionary, meaning the court is not required to hear the case. Where the intermediate appellate courts hear and issue a written opinion for each and every case submitted, the Court of Criminal Appeals picks and chooses which cases it wants to hear. Of course, to each defendant, his or her case is significant, but it is vital to employ an experienced criminal appeals attorney who knows how to present your case to this court in such a way that it gets their attention. The PDR is due 30-days from the date the appeals court issues their final judgment or the date the appeals court denies the Motion for Rehearing. You can request an extension up to 15 days after the deadline passes.
Petition for Writ of Habeas Corpus to Set Aside a Final Felony Conviction under Code of Criminal Procedure section 11.07
If you lose the direct appeal and the PDR, or you waived your right to direct appeal, you can challenge your conviction under section 11.07 of the Texas Code of Criminal Procedure. Many criminal defendants elect to draft and file their own section 11.07 writs, but I highly caution against that. Defendants have only one chance to file a writ in most cases, and there are very few circumstances where a court will consider a second or subsequent writ. There is no set deadline in Texas for filing a writ, so it would be better to wait a year and save the money for an experienced criminal appeals attorney. Some attorneys are willing to set up a payment plan.
A writ is quite different than a direct appeal, the biggest difference being that you can bring in new evidence that was not presented at trial. In some instances, your attorney may elect to do an investigation with a private investigator and try to gather new evidence for your case. This will be an added cost paid directly to the private investigator, but most private investigator’s try to work within your budget. And an experienced appeals attorney will have a strong network of private investigators to choose from.
Further, the arguments you bring in a writ are quite different than a direct appeal. Not only are you not limited to what evidence was presented at trial, you are not allowed to make arguments that you could have made in a direct appeal. Errors at trial, factual and legal sufficiency challenges and evidentiary challenges are examples of issues you are not permitted to bring in a writ. What is typical are challenges based on ineffective assistance of counsel and involuntary plea. To show ineffective assistance of counsel, your attorney will need to prove that but for your trial lawyer’s incompetency, the outcome of the case would have been different. Ineffective assistance of counsel can also be used to void plea agreements in certain circumstances. It is important to consult with an experienced criminal appeals attorney on your case to determine whether the facts could warrant reversal under an 11.07. Courts have upheld convictions in many cases where trial attorneys have been incompetent, but the defendant failed to prove the outcome of their trial would have been different.
It is important to note that even though there is no set deadline for a writ, there is something called a Doctrine of Laches which the court can use to dismiss the writ for waiting too long to file after the conviction. What Doctrine of Laches means is that the defendant waited so long that it is highly prejudicial to the State if they were to have to retry the case now. For instance, evidence is destroyed, witnesses have died or moved away, and witnesses memories have faded. There are ways around the Doctrine of Laches such as when witness comes forward with new information that was not available earlier. This is why it is so important to hire an experienced criminal appeals attorney to file your writ.
There is a benefit to filing the writ early because if you lose the state writ, you can file a federal writ, but the deadline for a federal writ is more strict.
Federal writ under 28 U.S.C. §2254
If you lose your state writ, you may have the option to file a federal writ under 28 U.S.C. §2254. The deadline per the statute is one-year, but calculation of the deadline is complicated and often lasts longer than one-year. It is important to consult with an experienced criminal appeals attorney as soon as possible to properly calculate this deadline. There is also something called equitable tolling which could excuse a missed deadline, but the exceptions are few, and is not often granted. An experienced appeals attorney could advise you on whether you would qualify for this.
Fortunately, the conviction is not final until the defendant exhausts all appellate remedies. There are many options to challenge the conviction, and an experienced criminal appeals attorney can help sort out which steps to take in your particular case.