Criminal appeals are complex. It would be impossible to distill the entirety of criminal appellate practice into five bullet points. On the other hand, some aspects of criminal appeals are more paramount than others–especially when it comes to determining whether to set aside some time to meet and discuss your case with a criminal appellate attorney. The list below is intended as a starting point in answering the question “do I or do I not exercise my right to an appeal?”
Note: this discussion relates to direct criminal appeals. In general, direct criminal appeals raise errors committed in the trial court. For a discussion of appeals raising matters that were later discovered or never brought to the trial judge’s attention, check back later for a discussion on “writs of habeas corpus.”
- What is the Deadline? Deadlines are the unstoppable force in any area of law. The right to an appeal is a waivable right. Texas Rules of Appellate Procedure Section 26.2 provides that an appeal must be “perfected” (requested) within 30 days after the court imposes or suspends a sentence in open court or enters an appealable order. Alternatively, if a defendant files a motion requesting a new trial from the trial judge, the time to perfect appeal becomes 90 days. Barring an extraordinary exception, the right to appeal is waived if not requested within one of these timeframes.
- What Issues Can I raise on Appeal? An appeal is not an opportunity to try the case over again. Appellate courts give great deference to a judge or jury’s findings with regard to which facts are true and which facts are not true. An appellate court will entertain a dispute about the facts only if no reasonable fact finder could have found the essential elements of the offense beyond a reasonable doubt—this is rare. The most common appellate issues are disputes about the judge’s rulings which affected the outcome of the case. In particular, a judge’s ruling on the admissibility of evidence or on a motion to suppress evidence are among the most common issues raised on direct appeal.
- What are the Costs? Costs are distinguished from attorney’s fees. An attorney’s fee will vary depending upon the complexity of the case and anticipated legal work required to present an appeal. Generally, costs are charges incurred for any other purpose required to effectuate the appeal. Although the appellate court charges nothing to file an appeal, the rules of appellate procedure require a submission of the clerk’s record and the court reporter’s record. The clerk and the reporter charge for preparation of these records, absent a finding by the trial court that the individual is incapable of making such payment.
- How Long Does it Take Before the Court of Appeals Issues a Decision? Once an appeal is “perfected” (requested) it can typically take anywhere from three to nine months before the appellate court has everything it needs to start considering the appeal (transcript, clerk’s record, appellant’s brief, appellee’s brief). Once the court receives everything necessary to consider the appeal, a quick turn-around on issuing an appellate opinion would be six months. A number of factors outside the control of attorneys can cause this to take even longer, including whether the appellate court grants oral argument on the appeal.
- What Happens if the Court of Appeals Agrees with my Appeal? Once the court of appeals has considered an appeal, they will issue an “opinion.” (a written statement of the facts, law and court’s analysis). If the appellate court agrees with the issues raised on appeal, they can (1) reverse and render a judgment of acquittal, (2) reverse and remand. When the court reverses and renders an acquittal, it has determined that an error occurred and the law requires an acquittal. When the court reverses and remands, it states what the trial court’s error was and sends the case back to the trial court for the case to be resolved by the trial court in a manner consistent with the appellate court’s interpretation of the law. Usually, a reverse and remand decision is mere a formality after winning.