Appellate & Writs
The Appellate Section prosecutors and paralegal handle the appellate litigation that arises out of Montgomery County criminal cases. Most defendants convicted after a trial appeal their convictions, and the appellate prosecutors defend those convictions by filing briefs and presenting oral argument in the various Texas courts of appeals and the Texas Court of Criminal Appeals.
Their affirmance rate (the percentage of cases in which the judgment of conviction is upheld by the appellate courts) approaches 100% every year—a tribute to the experience and expertise of the Montgomery County trial prosecutors and judges.
In addition, the Appellate Section prosecutors represent the State in Writ of Habeas Corpus proceedings in which prison inmates seek to obtain new trials, sometimes many years after their convictions. They also assist the trial prosecutors when complex legal issues arise during trial court proceedings.
Appellate FAQs
How long does a criminal appeal take?
It’s hard to say. A simple case can be resolved in six months, but a complex appeal can drag on for several years. It all depends on the amount of time required to prepare the court reporter’s record, the attorneys’ briefs and the appellate court’s opinions. It also depends on whether the Texas Court of Criminal Appeals agrees to review the decision of the local court of appeals, which significantly lengthens the appellate process.
Can I attend the appellate court proceedings?
Yes, but only if the appellate court hears oral argument by the attorneys. The courts of appeals schedule oral argument in only a small fraction of their cases, depending on whether they believe a discussion of the legal issues would be helpful.
Is there a limit on habeas applications?
No, but a defendant who files a subsequent writ application must show that he could not have raised an issue in a previous application or that he is actually innocent of the crime, or the appellate courts will refuse to consider the subsequent application.
Does the defendant stay in jail?
The trial court can release the defendant on an appeal bond, unless he was convicted of certain violent or sexual offenses, or his punishment was assessed at imprisonment for ten years or more.
What happens if the defendant wins the appeal?
A successful appeal by a defendant usually results in a new trial, and the defendant is transferred back to Montgomery County to be retried on the original charge. In rare instances, an appellate court can find the evidence was insufficient to support the conviction and acquit the defendant, in which case the defendant cannot be retried because of the Double Jeopardy Clause.
People say they will appeal “all the way to the U. S. Supreme Court.” Can they?
They can try, but the Supreme Court of the United States only agrees to hear a tiny fraction of the petitions that are filed in that court every year. The same goes for the top Texas appellate courts (the Texas Court of Criminal Appeals and the Supreme Court of Texas), which usually agree to hear only a few significant cases with issues of importance to other litigants in other cases.
Does the appellate court hear evidence?
No. In a direct appeal from a criminal conviction for an offense other than a Class C misdemeanor, the appellate court reviews the record of the trial and the attorneys’ briefs, in which one side complains of possible errors by the trial court judge, and the other side defends the fairness of the proceedings. The appellate court then issues a written opinion, either affirming or reversing the judgment of the trial court.
If a defendant loses the appeal, is there another way to challenge the conviction or sentence?
Yes, anyone who is confined by the government can file an application for a writ of habeas corpus in a state or federal court, contending that they are illegally being held in custody. A habeas corpus proceeding is different from an appeal, because the applicant can offer new evidence, in the form of affidavits or testimony, showing that he did not get a fair trial.
Why do death penalty appeals take so long?
Every death penalty case results in both an automatic appeal to the Texas Court of Criminal Appeals, and a habeas corpus proceeding in that court. The defendant can seek review of the state court decisions (on both the writ and the appeal) by the Supreme Court of the United States. Then the defendant can start the process all over in the federal courts, by filing an application for a writ of habeas corpus in a U. S. district court. If the federal court denies relief, that decision can be appealed to the U. S. Court of Appeals for the Fifth Circuit and then the Supreme Court of the United States. In rare instances, a death row inmate can start yet another round of habeas corpus litigation, if he learns of some issue that could not have been raised before.
Expunction Information
Appellate Section Personnel
Chief ADA Amy Waddle
ADA Kyle Jones
ADA Zayna Radwan
Paralegal Leah Manske