Texas Criminal Process
Each step in the Texas Criminal Process is very significant and essentially represents either a pitfall or an opportunity. When an individual is suspected of or charged with a crime the entire criminal justice system, complete with its unlimited resources and tough on crime attitude, begins to negatively influence the fate of the citizen involved regardless of whether or not the citizen actually did anything wrong. This process all too often ultimately ends in wrongful convictions and/or excessive punishments. Effective and aggressive legal representation is the only way to alter this destructive overreaching government takeover of individual liberty. The legal professionals at the Law Offices of Roderick C. White view every step in the Texas Criminal Process as an opportunity to protect the rights and liberty of all citizens through the aggressive independent protection of each individual client. If you or a loved one are suspected of or charged with a crime contact us for a free initial consultation before the law enforcement machine decides you or your loved one’s fate.
It is ideal to consult with a criminal defense attorney as early as possible in a criminal investigation. An experienced criminal defense attorney can not only protect your legal rights but can also immediately begin making strategic decisions to ensure that you get the best result possible. In many instances an aggressive criminal defense attorney can even sometimes prevent charges from ever being filed. If you or a loved one have any contact with law enforcement in which there is any possibility of criminal liability, please contact us so that we immediately begin protecting you. The Law Offices of Roderick C. White will be there to aggressively protect from beginning to end. A better understanding of typical criminal investigations can be gained by reviewing the information below:
Investigations in General
After a crime is allegedly committed, the preliminary investigation by a law enforcement agency generally begins when responding officers arrive at the scene of the incident. Emergency matters are handled and the crime scene is secured. In most cases an officer will meet with the victim in person to obtain important information concerning the crime. Witnesses are then questioned. Any suspect at the scene is detained, questioned, and then released or arrested, depending on the circumstances. Additional responsibilities during the preliminary investigation may include: photographing, videotaping, measuring and sketching the scene; searching for evidence; identifying, collecting, examining, and processing physical evidence; and recording all observations and statements in notes.
Despite a thorough preliminary investigation, many cases require a follow-up investigation to close the case or to arrest an alleged offender. The follow-up investigation can be conducted by the officers, who responded to the original call or, most often, by detectives. Investigative leads that may need to be followed-up include: checking the victim’s background; determining who would benefit from the crime and who had knowledge to plan the crime; tracing weapons and stolen property; and searching modus operandi (manner of operation), mug shot, and fingerprint files.
After the law enforcement agency has completed its investigation, the case may be filed with the prosecuting attorney for review and, if appropriate, criminal prosecution. The prosecuting attorney considers such matters as the legality of the arrest, whether certain evidence essential to the case was legally obtained, and/or whether additional investigation is required. Depending on the facts and law involved, the prosecuting attorney may: accept the case for prosecution as filed; increase/reduce the charge filed; file additional/different charges; return the case for further investigation; or reject the case for prosecution.
Initial Contact with Law Enforcement
Whether the criminal investigations begins with a traffic stop or a report of criminal activity it is important to note that a person may be stopped or detained for brief questioning by the police, if there is a reasonable suspicion that something criminally afoul is suspected by a law enforcement officer. A stop is not the same as an arrest because, although you may be briefly detained, you are not moved to a different location. During the brief stop the police officer may ask appropriate questions to confirm or dispel his suspicion. It is however important to note that you have the right to refuse to answer any questions beyond those appropriate for preliminary identification.
Generally, a law enforcement officer may search a person or place if he has probable cause to believe the person or place to be searched is involved with criminal activity. Probable cause to search means that 1) it is more likely than not that the specific items to be searched for are connected with criminal activity and 2) that the items will be found on the person of or in the place of the proposed search. The general rule is that warrants are required for searches. A search warrant is issued by a judge only upon a finding of probable cause. There are however a few exceptions to the general requirement of a search warrant. Searches without warrants are permissible in the following circumstances:
Searches incident to arrest: Police officers are permitted to search your body and/or clothing for weapons or other contraband when making a valid arrest.
Plain view: Police do not need a search warrant when they see an object that is in plain view of an officer who has the right to be in the position to have that view.
Consent: If you consent to a search of your body, your vehicle, or your home, police are not required to have a warrant. YOU ARE NOT REQUIRED TO CONSENT TO ANY POLICE SEARCHES!!!
Probable cause is required for any arrest. Probable cause to arrest means that there must be a reasonable belief that a crime was committed and the person arrested committed the crime. An arrest warrant is occasionally obtained prior to arrest but an arrest warrant is generally not required.
After a person is placed under arrest, they are protected by some very important constitutional rights. Two important constitutional rights to be aware of upon arrest are 1) the right to remain silent and 2) the right to have an attorney. After arrest, a person is not required to say anything else to police or investigators, until they have an attorney present. Furthermore, the person must be given the opportunity to contact an attorney.
Under the Miranda Rule, if a person is taken into law enforcement custody they must be informed of specific constitutional rights before they are subjected to any interrogation or questioning. Those rights are:
Miranda warnings do not have to be read until a person is taken into custody. That means that a person can be questioned by the police before being taken into custody and anything said at that point can be later used in court.
After arrest the police will bring the arrestee to the police station to complete the booking process. This process includes fingerprinting and a series of preliminary questions, such as name and date of birth. This general preliminary questioning is generally exempted from the offense-related questioning contemplated by the Miranda warnings. The arrestee will also be searched and photographed and their personal property such as jewelry will be catalogued and stored.
A criminal case is prosecuted in the name of the State of Texas against the accused (defendant), and is conducted by the appropriate prosecuting attorney (prosecutor) acting under the authority of the state. Prosecution of a class A or B misdemeanor in a county court, county court at law or county criminal court is initiated by filing an information. An information is a written statement presented in behalf of the state by the prosecutor, charging the defendant with the commission of an offense. An information must be based on a proper complaint and the complaint must be filed with the information.
A felony is prosecuted in a district court or criminal district court and an indictment (sometimes called "bill of indictment") is required unless waived by the defendant. An indictment is a written statement of a grand jury presented to a court accusing a named person of some act or omission which, by law, is declared to be an offense.
A grand jury is organized by a district judge for a set term of usually three to six months at a time and has jurisdiction only over offenses occurring in the county of its organization. Grand jury proceedings are secret and consequently closed to the public. However, the prosecutor (or the criminal district attorney) is entitled to go before the grand jury and inform them of offenses for possible indictment at any time except when they are discussing or voting upon the issuance of an indictment. The grand jury determines whether there is sufficient evidence to require the accused to stand trial for a criminal offense. At least 9 of the 12 grand jurors must concur to issue an indictment ("true bill") and be present when the indictment is delivered to the judge or clerk of the court (to be filed in the court's records). If the grand jury does not find sufficient evidence the case is "no-billed" and the suspect discharged. A no-bill does not bar indictment by the same or different grand jury at a later date.
When an information or indictment is filed, if the defendant is not in custody or under bond, a warrant will typically issue. A warrant is a writ issued by the court or clerk, and directed "To any peace officer of the State of Texas," commanding the officer to arrest a person accused of the offense.
If you believe that criminal charges are about to be filed against you, it is always to your benefit to speak with a criminal defense attorney. It is important to know that once prosecutors decide to file criminal charges against you, your charges will appear on your criminal record, even if the charges are later dropped or dismissed. The information contained within your criminal record is accessible to your future employers and landlords. For this reason, it is imperative that you do everything possible to intervene immediately. By working with a criminal defense attorney, you may be able to prevent your charges from being filed from the very beginning. You cannot afford to wait and risk your future well being. Even if criminal charges never get filed, you will benefit immensely from the advice and guidance of a skilled defense lawyer.
Often times, we can review your case and discover evidence that may be used to your advantage before charges are filed. After carefully screening your case, we may be able to present evidence to prosecutors that will dissuade them from filing criminal charges against you. We previously have had considerable pre-indictment success thereby preventing the filing of criminal charges by bolstering our client's credibility with prosecutors and law enforcement agencies through use of private polygraph testing (if the results are favorable, then they will be shared) and reference letters or testimony from community leaders, religious leaders, teachers, friends, etc. Another useful approach that has been to attack the credibility of the alleged victim is by using other witnesses to question whether or not the alleged victim is being truthful, the reputation for truthfulness of the victim, or by demonstrating untruthfulness by developing other unsubstantiated allegations against others made by the victim.
Pre-filing investigation and intervention efforts have led to tremendous results, including detained clients being released without the filing of criminal charges in court. In other words, the police initially had probable cause to arrest, but charges were not filed because the prosecutor reviewed the defense evidence and decided not to proceed with a criminal prosecution.
Once criminal charges are filed, the first court appearance known as an arraignment usually takes place within seventy-two hours of arrest. Historically, the defendant was asked to enter a plea guilty or not guilty however; the common practice is for the judge conducting the arraignment to simply to formally notify the individual accused of the pending charges and to set bail.
When a person is arrested for a crime and booked into a jail, they will typically go before a judge within 24 hours who will decide the terms and conditions of that person’s bail order. Under certain circumstances, such as if a person is a danger to society if released or a risk of non-appearance at court proceedings, bail will be denied and that person will remain in custody until the issue of bail is reconsidered or until their case is resolved. In the overwhelming majority of cases bail will be set.
The eighth amendment of the US Constitution contains bail bond laws which state that bail is not allowed to be excessive for the crime in question and cannot be used to raise money for the government or punish a person who allegedly committed a crime. Most Texas counties have a set bail schedule which delineates the amount of bail based on the nature of the alleged crime.
There are generally three types of bail bonds utilized in Texas: 1) personal recognizance; 2) cash; and/or 3) surety. In a personal recognizance bond an individual charged with a crime is released “on his own recognizance” and agrees to all terms of release and is free to go without collateral offered. If any of the terms of release are broken the individual will be re-taken into custody and is subject to being held without bail or forced to post another type of bond. Personal recognizance bonds are very seldom used in Texas.
Cash bonds require that the full amount of the set bail be given to be held in trust to the county sheriff or to the court to ensure compliance with future proceedings. If there is any non-compliance, the person posting the cash bond is subject to forfeiture of the money left in trust. Cash bonds are returned once the obligations have been fulfilled and a judgment in the case has been reached. A surety bond is facilitated through a professional bail bonds person who posts an individual’s bail for a fee in exchange for guaranteeing the defendant will show up to court. The fees paid to bail bonds people are not refundable.
You have a right to a speedy trial under the Sixth Amendment of the United States Constitution, which requires that the trial be held within a certain time frame after a person has been charged with a crime. Under Texas law (with limited exceptions), a criminal defendant should be brought to trial within the following time frames:
Speedy trial rights are often routinely and unwittingly waived by asking for additional time for the preparation of your defense. Accordingly, these rights are something that needs to be tactically considered in the beginning of any criminal case to ensure that they are both not waived and tactically asserted.
The court may set any criminal case for a pre-trial hearing before it is set for final trial on the merits. Pre-trial hearings are used to determine legal issues. Pre-trial matters are decided by the judge and in most situations both the defense and/or prosecution present evidence and/or witness testimony. At pre-trial hearings judges have an opportunity to hear evidence presented in order to determine what evidence is admissible at trial. For example, whether police legally arrested a suspect and gathered evidence, pursuant to state law and the United States constitution. If the person was unlawfully arrested, or the search and/or seizure were illegal, grounds exist for suppression. This means the prosecution may not be able to introduce the improperly obtained evidence at trial. Where essential evidence is suppressed, cases must be dismissed. For example, if police unlawfully search a suspect’s home without a warrant or without the suspects consent, the evidence recovered cannot be used to prosecute the suspect. Judges make such a determination at pre-trial hearings. The burden of proof is on the prosecution. If their burden is not met that serves as grounds for suppression. Once met, however, the accused must demonstrate his or her rights were violated to be entitled to have the evidence suppressed (i.e., excluded from trial).
Another evidentiary issue determined by the court at pre-trial hearings involves statements made by a suspect. An accused must "knowingly, intelligently and voluntarily" waive his or her right to remain silent (Miranda Rights) before police can lawfully take a statement. Prior to taking a statement from a person in custody accused of a crime, police must inform the suspect of his or her Miranda rights. If this is not properly done the judge may suppress the statement at a pre-trial hearing.
Additionally, at pre-trial hearings, if the person accused was identified in a line-up or photo array, evidence must be presented demonstrating neither procedure was conducted in a manner creating an improperly suggestive identification of the person accused. If the prosecution cannot meet this burden of proof, the court will not permit evidence of the identification and the identification procedure to be introduced at trial.
These are just a few significant issues addressed at pre-trial hearings. An aggressive effective defense is crucial at every stage of a criminal case. The Law Offices of Roderick White are prepared to provide the both effective and aggressive legal representation needed to get the very best result possible.
Pre-Trial Case Resolution
After indictment there are essentially two ways a criminal case may be resolved prior to trial: 1) dismissal; or 2) plea-bargaining. The most favorable form of pre-trial disposition of a criminal case is a dismissal. The prosecutor may, with the consent of the judge, dismiss a criminal case. Common reasons for dismissal include: (1) insufficient evidence - for example, post-indictment trial preparation reveals a fatal lack of evidence such that the court would instruct a verdict in favor of the defendant; (2) crucial evidence is suppressed (excluded) because of an illegal arrest or search; (3) at the request of the victim; (4) the defendant pleads guilty to other offenses (often less serious offenses); and/or (5) necessary witnesses cannot be located. While there are many potential reasons for a dismissal, a competent aggressive defense, spearheaded by a competent aggressive criminal defense attorney, is almost always either directly or indirectly responsible. For example, it is usually the defense attorney that convinces the prosecutor that there is insufficient evidence to successfully prosecute or gets the crucial evidence necessary to prosecute the case suppressed. Like most other favorable results, dismissals of criminal charges are often the result of an aggressive effective defense. While pre-trial dismissals are not always possible in every case, the aggressive attorneys at the Law Offices of Roderick C. White have obtained numerous dismissals of serious criminal charges and are ready, willing and able to aggressively seek the dismissal of any and all cases that we handle.
Plea Bargaining is the disposition of criminal charges by agreement between the prosecutor and the defendant, under judicial supervision. In exchange for the defendant pleading guilty or no contest and waiving the right of trial by jury, the prosecutor recommends a specific punishment which the judge can either accept or reject. If the judge rejects the agreement, the defendant is permitted to withdraw their guilty plea. If the judge follows the agreement, the defendant must obtain the judge's permission before the defendant may appeal any matter in the case except matters raised by written motions filed prior to trial. The defendant usually waives the right of appeal as part of the plea bargain. A non-negotiated guilty plea or an open plea is a less commonly used form of plea-bargaining. In an open plea a defendant pleads guilty to a criminal charge without an agreement with the prosecutor as to what punishment the prosecutor will recommend. Here, the judge will assess the punishment unless the defendant specifically requests that a jury do so. The defendant retains the right to appeal the sentence, but typically waives any appeal of matters occurring before the entry of the guilty plea. The vast majority of all criminal cases are resolved by some form of plea bargaining.
Why plea-bargain? A good criminal defense lawyer invariably asks two basic questions after thoroughly reviewing a case: 1) Can I help my client beat these charges? and 2) If I cannot help my client beat these charges, how can I help him get the best result possible? Helping clients beat criminal charges in high profile trials is the portion of a criminal defense lawyer’s that television shows and movies focus on. While the criminal trial is quite likely the most exciting part of the job helping clients get the best results possible when a trial cannot be won is a very important part of being a good criminal defense lawyer. This is where plea-bargaining often comes into play. Because not every criminal case can be won at trial, a good criminal defense attorney must also be a good negotiator. Under Texas law there are many criminal charges that present possible punishment ranges of anything from probation to ninety-nine years or life in prison. When faced with such broad possible punishment ranges and criminal charges that may likely result in conviction a good negotiator may mean the difference between probation and a lengthy prison sentence. The attorneys at the Law Offices of Roderick C. White are both aggressive trial lawyers and skillful negotiators.
The Texas Constitution guarantees the accused in all criminal prosecutions the right to a trial by jury. The defendant may waive trial by jury and proceed with trial to the court (judge) with the consent and approval of the judge and the prosecutor in any criminal prosecution except a capital felony in which the prosecutor notifies the court and the defendant that the state will seek the death penalty.
A criminal trial before a jury (sometimes called a "petit jury") proceeds as follows:
The judge assesses punishment unless the defendant requests the jury to assess punishment or the state seeks the death penalty in a capital felony. The judge may be required to direct a supervision (probation) officer to prepare a presentence investigation report. Testimony concerning the circumstances of the offense may be considered by the judge or jury in determining the punishment to be assessed. Victim impact evidence (e.g., degree of physical or emotional injury to the victim) may be admissible as a circum-stance of the offense if the evidence has some bearing on the defendant's personal responsibility and moral guilt. Evidence is also admissible concerning the defendant's prior criminal record, his/her general reputation and character, and any other evidence of an extraneous crime or bad act shown beyond a reasonable doubt to have been committed by the defendant.
After the introduction of evidence relevant to punishment has been concluded, if the jury has the responsibility of assessing the punishment, the judge will give additional instructions as may be necessary and the order of procedure is the same as on the issue of guilt or innocence. If the jury fails to agree to a unanimous verdict on punishment, the verdict is not complete and a mistrial is declared and the jury discharged. The punishment phase of the case may be retried at a later date.
Prior to the imposition of sentence by the court, if the court has received a victim impact statement it must consider the information provided in the statement. Before sentencing the defendant, the court is required to permit the defendant or his/her counsel a reasonable time to read the statement, comment on the statement, and, with the approval of the court, introduce testimony or other information alleging a factual inaccuracy in the statement.
A court may order witnesses excluded from the courtroom under "the rule" so that they cannot hear the testimony of other witnesses. Witnesses may not converse with each other or with any other person about the case, except the lawyers involved in the case. Witnesses cannot read, watch or listen to any report of or comment upon the testimony in the case while the trial is being conducted. This rule does not authorize exclusion of the victim, unless the victim is to testify and the court determines that the victim's testimony would be materially affected if the victim hears other testimony at the trial.
The great majority of sentences in Texas are arrived at by agreement following the negotiations that lead to a guilty plea. When a case goes to trial, the guilt or innocence is determined in a proceeding that is separate from the sentence determination—referred to as a bifurcated trial. If a guilty verdict is returned at a trial, the sentencing phase begins immediately.
Before trial, the defendant elects whether to have any potential punishment determined by a judge or a jury. This is a strategic decision best made in close consultation with an experienced defense attorney—one who can advise the client on sentencing trends in particular courts or in juries selected from the community, and effectively present mitigating factors.
The choice of going to a judge or jury for sentencing may also depend on eligibility for probation, now called community supervision. In the case of certain serious crimes or those involving a deadly weapon, only a jury can sentence the defendant to probation. In these cases the defendant must also be “probation eligible,” meaning that there are no prior felony convictions.
WHAT ARE THE PLACES OF CONFINEMENT?
Local correctional facilities designated by law for the confinement of persons include: (1) municipal (city) jails - generally hold arrested persons until either bonded or transferred to county jails; (2) county jails - hold defendants awaiting trial or transfer to prison, or confined for misdemeanor punishment or a condition or violation of a community supervision; and (3) community corrections facilities - such as restitution centers, boot camps, and substance abuse treatment facilities.
The institutional division of the Texas Department of Criminal Justice operates and manages the state prison system with more than 100 facilities located across the state, including: (1) transfer facilities - hold defendants awaiting transfer to prison; (2) boot camps - for first time felony (except state jail) offenders (age 17-25) using a regimented program similar to military boot camps; (3) state jail facilities - for defendants convicted of state jail (4th degree) felonies; (4) substance abuse felony punishment facilities (SAFPFs); (5) psychiatric and minimum, medium, and maximum security units (prisons) for inmates convicted of capital, 1st, 2nd and 3rd degree felonies, and inmates awaiting execution; and (6) private prisons - serve as pre-release centers for prisoners awaiting release on parole.
WHAT IS COMMUNITY SUPERVISION?
Community supervision, formerly called "probation," means that the defendant is released into the community under certain conditions set by the court and subject to court supervision. The maximum period of community supervision is ten years in a felony case; two years in a misdemeanor case (three years if extended by the judge). However, if the offense is indecency with a child, sexual assault, or aggravated sexual assault, the judge may extend the period of supervision for a period not to exceed 10 additional years. And the judge may extend the period in a misdemeanor case not to exceed an additional two years beyond the limit to pay the fine, costs, or restitution.
Basic conditions of community supervision include, for example, that the defendant: (1) commit no criminal offense; (2) report to the supervision officer as directed; (3) permit the supervision officer to visit at the defendant's home or elsewhere; (4) work faithfully at suitable employment and support his/her dependents; (5) remain within a specified place; and (6) pay restitution to the victim and any fine assessed and all court costs. Defendants placed on community supervision are supervised by community supervision officers, formerly called “probation officers.”
A defendant's eligibility for community supervision depends on factors including: (1) the type of community supervision; (2) the offense involved; (3) whether the defendant used or exhibited a deadly weapon or knew that a deadly weapon would be used or exhibited; (4) whether the defendant has previously been convicted of a felony offense or placed on community supervision; (5) whether the defendant pleads guilty or nolo contendere; (6) whether the judge or jury sets the defendant's punishment; and (7) whether the defendant is sentenced to a term of imprisonment exceeding ten years.
One type of community supervision is a regular community supervision (sometimes called straight probation). The defendant is convicted and given a term of confinement which the judge immediately suspends and then places the defendant on community supervision.
In a deferred adjudication community supervision, after receiving the defendant's plea of guilty or nolo contendere, hearing the evidence, and finding that it substantiates the defendant's guilt, the judge defers further proceedings without entering an adjudication of guilt and places the defendant on community supervision. Unlike the other types of community supervision, if the defendant successfully completes the supervision period, the judge is required to dismiss the proceedings and discharge the defendant. However, if the defendant violates a condition of the deferred adjudication community supervision, the defendant may not appeal the court's decision to proceed with the adjudication of guilt on the original charge.
Finally, in a continuing jurisdiction community supervision (formerly called "shock probation") or state boot camp program, the defendant is convicted and given a sentence requiring confinement. After serving a set period of confinement, the judge may suspend further execution of the sentence and place the defendant on community supervision.
At any time during the period of any community supervision, the prosecutor may file a motion to revoke and the judge may issue a warrant for violation of any of the conditions of the supervision and cause the defendant to be arrested and held without bond until a hearing within 20 days after demand. The state must prove by a preponderance of the evidence (greater weight and degree of credible evidence) that the defendant violated the conditions of the community supervision. After a hearing without a jury, the judge may continue, extend, modify or revoke the community supervision, or, in deferred adjudication community supervision, proceed to adjudication. In a deferred adjudication, the judge may assess the full range of punishment prescribed for the offense; if it is one of the other types of community supervision, the judge may not go beyond the original term of confinement. No part of the time that the defendant is on community supervision shall be considered as any part of the time that he/she shall be sentenced to serve.
A good criminal defense attorney has at least two primary tasks. The first is to help their client beat any and all pending charges either by dismissal or a not guilty verdict. Accomplishment of this task is not always possible. The second task comes if and when the first is not possible. The second task is to ensure that the client gets the best possible sentence possible. Even when the guilt of a defendant is not in dispute, an aggressive defense attorney will work to achieve the least restrictive and shortest sentence possible. With so many options available to the court, and so many factors involved in the court’s decision, you want someone with experience by your side. The legal professionals at the Law Offices of Roderick C. White will always aggressively do a complete job; and that includes an aggressive sentencing plan and implementation when unfortunately necessary.
An appeal generally occurs after a conviction when the defendant requests a higher (appellate) court to review the trial and determine whether errors were committed that require a retrial or acquittal. If the appellate court finds no reversible error the judgment is affirmed and the sentence must be served; if the court finds error that beyond a reasonable doubt contributed to the conviction or punishment, the case is reversed and a new trial or punishment hearing may be ordered. Sometimes, though rarely, a case may be reversed and the defendant ordered acquitted, that is, set free (e.g., state failed to provide sufficient evidence of guilt).
There are numerous reasons for an appeal from a guilty verdict in a criminal case, including what's called "legal error." Legal error may include:
You may also appeal due to misconduct on behalf of the jurors, or if there is newly discovered evidence to exonerate you. However, a jury’s determination of what is a fact or of the witness’s credibility (or a judge’s determination when there is no jury) will rarely be disturbed.
The state is entitled to appeal a limited number of orders of a court in a criminal case. For example, the state may appeal an order dismissing all or any portion of an indictment or information, granting a new trial, or granting a defendant's pre-trial motion to exclude evidence or a confession. The state may not appeal from a judge's decision or jury's verdict finding a defendant not guilty of an offense.
The first criminal appeal is decided by the Court of Appeals. Texas has 14 Courts of Appeals, each having at least three judges. A panel of three judges reviews the trial based on the printed record and the written arguments (briefs) prepared by attorneys for both sides. There are no witnesses and no new evidence may be presented.
THE APPEALS PROCESS
This process varies depending upon the crime, but there are always time deadlines by which you must file an appeal. The process is begun by filing a Notice of Appeal with the trial court. In Texas, you generally have 30 days from sentencing to file the notice of appeal. If a motion for new trial is filed, the deadline is 30 days from the day the motion is denied.
The defendant must also make arrangements to obtain the record. This consists of the clerk’s record (a copy of all the documents filed with the court) and the reporter’s record (a transcript of everything said in court).
After the record is prepared, the appellant, or the party asking for review, must prepare a brief detailing the errors complained of, the state of the law that applies to that type of error, and how that law applies to the facts of this particular case. The other side then has an opportunity to write a brief in response. The Court of Appeals has the option to either consider the case on the written briefs alone or to allow oral argument. In oral argument each side is given a short time to present their case and answer questions from the panel of judges.
The Court of Appeals has no deadline for deciding an appeal. The actual length of time will depend on a variety of factors, but many cases take longer than a year.
The party that loses in the Court of Appeals has the right to appeal to the Court of Criminal Appeals. Unlike the first appeal which is a right, further appeals are discretionary. This means the Court can deny the petition for review without giving any reasons. Cases that are reviewed typically fall into one of two categories:
those that present issues important to legal practice statewide; or
Any licensed attorney can handle an appeal, but many do not have the legal talent, experience or desire to perform the intense research and writing that is required. It is important to seek an attorney experienced in appellate law that can offer the wisest advice and most effective written and oral advocacy. An old wise lawyer once said “It takes a good trial lawyer to become a good appellate attorney.” If you or a loved one have been convicted of a crime, you can rest assured that the legal professionals at the Law Offices of Roderick C. White have thoroughly demonstrated the talent, experience, and earnest desire to both diligently and aggressively pursue your appellate rights. Contact us for a free initial consultation.