How to Appeal a Conviction in Texas: A Step-by-Step Guide

In Texas, an appeal is how a convicted defendant asks a higher court to review his or her case for legal errors. Except for death-penalty cases, which are appealed directly to the Court of Criminal Appeals, all direct appeals from district and county courts go to one of Texas’s fourteen intermediate appeals courts. The Texas Rules of Appellate Procedure govern appeals in Texas. A board-certified criminal appellate attorney is intimately familiar with these complex rules. Call us if you or a loved one wants to appeal a conviction in Texas.

File a Notice of Appeal in Texas

Regardless of whether the defendant filed a motion for a new trial, the way to appeal a conviction in Texas is to file a Notice of Appeal in the trial court. The defendant becomes the “appellant,” and the State is the “appellee.” The court clerk forwards the notice to the court of appeals, which dockets the appeal.

The docketing statement

The appellant’s attorney then files a docketing statement in the appeals court. This is a document that identifies the parties, the attorneys, the type of case, and whether the appellant has arranged for the record to be prepared and filed.

The appellant’s attorney must request that the record be filed. The record consists of two things: 1) the clerk’s record, which includes copies of all of the documents that were filed in a case, such as the indictment, motions, orders, subpoenas, jury charges, verdicts, etc.; and 2) the reporter’s record, which includes the transcript of the trial and copies of all the exhibits that were admitted into evidence.

Appelant’s Opening Brief

After both parts of the record are filed, the appellant must file his opening brief. The brief is based on the appellate attorney’s review of the record and legal research. It tells the court of appeals what happened at trial. Then it identifies any legal errors (“issues” or “points of error”) that require the conviction to be reversed.

The State then has the option of filing a response brief. The State doesn’t have to file a brief. If the State responds, it can argue why there weren’t errors in the trial or that the errors were “harmless.” The appellant may file a reply brief that responds to the State’s arguments.

What Happens in Court

After the briefs are filed, the Court of Appeals will set the case for “submission,” which is when a panel of justices on the court vote on how to decide the case. The court usually decides appeals based on the briefs. But occasionally, the court will allow oral arguments before submission. At oral argument, the attorneys present their legal arguments to the court in person and answer any justices’ questions.

After the case is submitted and the panel has decided whether the conviction should be affirmed or reversed, the court will issue a judgment and an opinion. The opinion must address every issue raised by the appellant that is necessary for the court’s disposition of the case.

The court’s disposition of the case

In disposing of a case, the court of appeals may:

  1. affirm the trial court’s judgment in whole or in part;
  2. modify the trial court’s judgment and affirm as modified;
  3. reverse the trial court’s judgment in whole or in part and render the judgment that the trial court should have rendered;
  4. reverse the trial court’s judgment and remand the case for further proceedings,
  5. vacate the trial court’s judgment and dismiss the case, or
  6. dismiss the appeal.

After the judgment and opinion issue, either side may file a motion for rehearing or a motion for en banc reconsideration if they believe the court made a mistake.

Appealing The Decision

Finally, either side may ask the Court of Criminal Appeals to review the Court of Appeal’s decision. This is done with a Petition for Discretionary Review. Additionally, the Court of Criminal Appeals may decide to review an intermediate court’s decision independently without a PDR being filed.

In deciding whether to review an appeal, the Court of Criminal Appeals considers 1) whether the Court of Appeals’s decision conflicts with another court’s decision. 2) whether the Court of Appeals decided an important question of state or federal law that the Court of Criminal Appeals should settle. 3) whether the Court of Appeals decided an important question of state or federal law that conflicts with a decision of the Court of Criminal Appeals or the U.S. Supreme Court. 4) whether the court of appeals struck down a law as unconstitutional or misconstrued a law. 5) whether the justices on the Court of Appeals disagreed with each other on a material question of law. And 6) whether the court of appeals has departed from the accepted and usual course of judicial proceedings or so far sanctioned such a departure by a lower court as to call for an exercise of the Court of Criminal Appeals’s power of supervision.

What The Court of Criminal Appeals Considers

If the Court of Criminal Appeals grants review, the parties file briefs. And the case is submitted just like in the Court of Appeals. The Court of Criminal Appeals then decides the case. The Court may 1) affirm. 2) modify. 3) reverse and render. 4) reverse and remand. 5) vacate and dismiss. 6) vacate and remand. or 7) dismiss the appeal. Either side may file a motion for rehearing.

Once the direct appeal is over in the Court of Appeals or Court of Criminal Appeals, the appellate court will issue a mandate, which directs the lower court to carry out the judgment of the appellate court.

Call Our Appellate Attorneys to Appeal a Conviction

Each step of an appeal in Texas is complex. There are deadlines, motions, document-formatting requirements, citation rules, binding precedents, and other matters. A board-certified criminal appeals attorney understands these requirements. We can navigate a defendant through the appellate process.

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Written by: Rosenthal Kalabus & Therrian Last Updated : August 16, 2023