Legal Blog

7 Best Pre-Trial Motions That Will Help You Overturn a Conviction on Appeal

Published on May 31, 2022
Attorneys at Spolin Law P.C. having a discussion | Spolin Law P.C.

The criminal appeals lawyers at Spolin Law P.C. review every error made by defense attorneys and the trial court to get a conviction overturned.

A criminal defense attorney doesn’t automatically begin thinking about appealing a conviction that hasn’t even happened yet. However, the best criminal defense lawyers are aware of the need to preserve issues for appeal by filing certain motions, objecting to motions, and presenting evidence or testimony at trial. In some cases, issues must be raised before trial even begins.

To overturn a conviction on appeal because of an error in a trial court ruling, an appellate attorney must show that the error infected or changed the outcome of the trial. Not just any error will do. The pre-trial motions discussed below set up an appeal by presenting requests that, if denied, may change the fairness or outcome of the trial.

When you hire the award-winning criminal appeals lawyers at Spolin Law P.C., we will evaluate every motion that was made or should have been made in your case. Our legal team will identify legal errors that can effectively get your conviction overturned.

Call us today to learn about your options for relief: (310) 424-5816.

1. Motion to Dismiss

A motion to dismiss an indictment or case against a defendant is a powerful basis for an appeal. When a court denies a pre-trial motion, the defendant usually has to show that they were prejudiced by the denial. Denial of a motion to dismiss has obvious prejudice: the defendant would never have been tried had the motion been granted. The appellate court’s reversal of a denial would require overturning a conviction.

A motion to dismiss may be based on numerous grounds, including the following.

Constitutional Issues

  • If the evidence used to support the indictment or information was obtained in violation of the defendant’s Fourth Amendment right against unlawful searches or seizures, the indictment should be dismissed.
  • Likewise, if the state interrogates a defendant but failed to give Miranda warnings or continued questioning following the defendant’s invocation of their right to remain silent or their right to counsel, the interrogation violates the defendant’s Fifth Amendment rights and any information obtained cannot support the indictment.
  • The defendant may also file a motion to dismiss based on violation of their Sixth Amendment or state right to a speedy trial. While the federal constitutional standards for finding a violation of this right are based on consideration of a variety of factors, many states have statutes that specify the time in which a defendant must be tried following arraignment. If these speedy trials rights have been violated, a motion to dismiss should be granted.
  • A motion to dismiss based on violation of the Fifth Amendment’s prohibition against trying a person twice for the same crime (“double jeopardy”) should be granted if it appears that the defendant was acquitted of or convicted of charges arising out of the same facts as the present charge.
  • Another issue that may arise concerns the constitutionality of the statute under which the defendant is charged. A defendant may not be tried and convicted of an offense if the statute defining the offense is unconstitutional, for example, overly broad or vague. A defendant may seek to have such a case dismissed by filing a pre-trial motion. In some states, the statute’s constitutionality is challenged through a demurrer, the overruling of which supports an appeal to challenge the validity of the law and the trial.

If the defendant raises a constitutional objection as outlined above to their indictment or trial in a pre-trial motion and the motion is denied, a successful appeal will overturn the conviction.

Validity of the Indictment or Information

An indictment may fail to allege all the elements necessary to state a crime or to support the charge against the defendant. If the indictment fails to allege intent or knowledge, for example, and those elements are part of the crime charged, the indictment is faulty and should be dismissed. In some states, the failure of the indictment to allege all necessary elements is not accomplished with a pre-motion but with a demurrer, which serves as a challenge to an indictment. If a trial court overrules a demurrer, the defendant may raise that issue on appeal.

Statute of Limitations

Most states have laws that limit the time in which the state may charge the defendant with a certain crime. If the statute of limitations has passed, the defendant may not be tried. A motion to dismiss based on the limitations period, if denied, may be appealed, and could result in the case being overturned.

Lack of Jurisdiction over the Defendant or the Case or Improper Venue

Jurisdiction over the case and the defendant must exist before a trial is valid. Likewise, the case must be brought in the proper venue or court.

A state court may lack jurisdiction over the case if the allegedly unlawful act was a violation of federal rather than state law or if the court has lacks jurisdiction over the type of crime alleged. For example, in some states, some courts are limited to hearing misdemeanors and so would not have jurisdiction over a felony. A court may also lack jurisdiction over an out-of-state defendant if the offense is alleged to have occurred entirely outside of the state.

Venue may be inappropriate if the defendant does not reside in the county and the crime with which the defendant is charged occurred entirely outside the county in which they are being tried. While most state statutes define venue broadly, allowing the defendant to be tried in any county in which any part of an offense (such as planning it) took place, venue may be lacking and may be the subject of a motion to dismiss.

If the trial court denies a valid motion to dismiss, a successful appeal will overturn the conviction.

2. Motion to Suppress

Evidence obtained against the defendant in violation of their constitutional rights may support a motion to dismiss, as indicated above, if the violation affects the validity of the indictment or information against the defendant. If the court declines to dismiss the action or if the unconstitutionally obtained evidence does not render the indictment or information invalid, a defense attorney may file a motion to suppress the evidence. This is a motion in which the attorney requests the court to forbid the state from using during the trial any evidence that it obtained in violation of the defendant’s rights. Although the granting of such a motion does not result in dismissal of the charge against the defendant, the exclusion of evidence may severely undermine the state’s case against them.

This is especially true of statements the state obtained in violation of the defendant’s Fifth Amendment rights. Even statements short of a confession can be damaging or potentially fatal to a defense. They may be contradictory or may implicate the defendant in the offense with which they are charged. Without admissions or implicating statements, the state will be forced to used other, less direct, and possibly less reliable or believable evidence to prove its case beyond a reasonable doubt.

The absence of incriminating evidence that the state seized in violation of the defendant’s Fourth Amendment right against unlawful searches and seizures may likewise cripple the state’s case. Without that evidence, the state must find alternative means to establish the defendant’s guilt.

The denial of a valid motion to suppress is a powerful basis on which to overturn a conviction on appeal. Particularly if the bulk of the state’s case is based on illegally obtained evidence, a motion to suppress, if it had been granted, would have substantially weakened the state’s prosecution, and will provide the prejudice necessary for an appellate to reverse a conviction.

3. Motion for Discovery — Beyond Brady

In a criminal prosecution, the state has the duty, known as the Brady duty, to provide the defense with exculpatory evidence in its possession or control. Relying on the prosecutor’s determination of what is exculpatory and what is not is risky. Filing a motion for discovery enables the defendant to seek specific physical evidence, witness statements, and records that might otherwise never be turned over. Even if the information or evidence is only tangentially related to the defense, it may provide a launching point for locating other evidence. It may uncover evidence or witnesses damaging to the prosecution’s case. As long as the motion is not a fishing expedition, a court should allow discovery of the state’s evidence and witnesses.

For instance, a defendant’s discovery motion may request the names of the police officers or investigators who gathered the evidence against the defendant. In some cases, the defendant may have the right to review the officer’s or investigator’s file (through a Pitchess Motion) to determine whether complaints were filed against him or her for Fourth Amendment violations. Such evidence may be pertinent to a motion to dismiss or motion to suppress. Similarly, the defendant may discover that persons other than witnesses have knowledge of the facts of the case. These people may provide invaluable information for the defense that the prosecution did not pursue.

If a court denies a valid motion to dismiss and evidence valuable to the defense was available in the state’s possession or control, such a denial supports overturning the conviction on appeal because the defendant was not given a fair trial — that is, not given the chance to introduce to the jury evidence that undermined the state’s case.

4. Motion in Limine

Related to a motion to suppress, a motion in limine asks the court to admit or exclude certain evidence or testimony at the trial. While a motion to suppress is generally based on constitutional violations, a motion in limine is based on prejudice to the defendant. The denial of the motions listed below may result in the reversal of a conviction on appeal. Likewise, if the court grants the motion and the state acts contrary to the decision, an appellate court may reverse the conviction.

Motion to admit or exclude prior conviction(s) for crimes of moral turpitude to impeach witness credibility. Depending on whether the witness is favorable to the state or to the defendant, this motion asks the judge to exercise thier discretion to allow the jury to hear about prior conduct that could affect the credibility of a state’s witness or to exclude such evidence against a defense witness. Whether the state’s witness is susceptible to impeachment can be determined by a motion for discovery, discussed above.

Motion to bar the prosecutor from commenting upon an accused’s invocation of Fifth Amendment rights. The defendant has a Fifth Amendment right not to make incriminating statements against themself and the right not to testify at trial. The Constitution also protects the defendant’s right to be represented by counsel. Although the Constitution bars a prosecutor from commenting directly or indirectly upon an accused’s invocation of these Constitutional rights, evidence obtained during discovery may indicate that the state could refer to the exercise of these rights during opening or closing, particularly if the state’s case is otherwise weak. A defense attorney should seek to prevent such a reference by moving the court for an order prohibiting it.

Bruton Motion to bar the prosecution in a joint trial from introducing a co-defendant’s out-of-court statement. Allowing such a statement violates the defendant’s right under the Sixth Amendment to confront the witnesses against them, and the United States Supreme Court has held that a limiting instruction to consider the statement only in determining the co-defendant’s guilt or innocence is insufficient to remedy the violation of the confrontation clause. The prosecutor’s disclosure of evidence as well as discovery may reveal the state’s intent to use an out-of-court-statement against a co-defendant. Counsel for the defendant should file a Bruton motion to prohibit such use.

Frye Motion, a special motion in limine, dealing with scientific or expert evidence. If the scientific or other technique for analyzing evidence or testimony is new, unestablished, or not generally accepted in its field, it may be unreliable and damaging to the defendant. A Frye motion asks the judge to bar the use of such evidence unless the reliability of the scientific method or the expertise of the interpreting witness are established. Pseudo-scientific evidence can influence the jury to convict a defendant when other evidence would not.

Motion to disclose identity of informant. The state does not ordinarily disclose the identity of a confidential informant. However, knowing who the informant is can provide the defendant with the opportunity to call the informant as a witness and impeach them, identify an ulterior motive for providing information to the authorities, or otherwise undermine the state’s case. Identifying the informant may be necessary to provide the defendant with a fair trial. If the information supplied is the only basis for probable cause for a search or for charging the defendant or the state’s case is based primarily on information from an informant, filing a motion to identify the informant is critical.

The denial of any of the motions in limine listed above affect the fairness of the trial and prejudice the defendant. On appeal, the appellate court’s reversal of the denial will support overturning the conviction.

5. Motion for a Change of Venue

A defendant is entitled to be judged by an impartial jury based only on the evidence presented at trial. In some cases, a crime is sensationalized by the media, statements by the police or a victim, video recordings of the events leading to a charge against a defendant, or simply the unusual, unique, or heinous nature of the crime. When that happens, the judgment of jurors in the jury pool in the vicinity of the crime may be so tainted by what they have seen or heard that they can no longer be unbiased — that is, they can no longer reasonably say that they have not formed an opinion on guilt or innocence. The defendant is therefore unable to receive a fair trial from that jury pool. For a defense attorney who believes that the passions and prejudices of potential jurors would deprive their client of a fair trial, a motion for a change of venue can be crucial.

6. Motion to Sever Trial or Cases

In most states, when the defendant is accused of committing a crime, connected crimes, or a series of crimes with another person or persons, the defendant and any others charged with the crime(s) are tried together as co-defendants. This is to preserve state resources: to keep the prosecution from having to present the same witnesses and evidence multiple times. However, in some circumstances, the risk exists that evidence against one of the co-defendants will bleed over into the evidence against the defendant, resulting in a conviction founded on insufficient evidence against the defendant.

In other cases, the interests of the co-defendant(s) are not entirely aligned with the interest of the defendant. Evidence or testimony that may be damaging to one co-defendant may be beneficial to the defendant and competing motions in limine may work to the disadvantage of the defendant. Likewise, a co-defendant might have made an incriminating statement to the authorities while the defendant did not. As stated above, a Bruton motion is supposed to limit the use of a co-defendant’s statement against a defendant, but a court may overrule such a motion, and the statement will come in, prejudicing the defendant.

In such a case, a pre-trial motion to sever the trials against the defendant and their co-defendant(s) is imperative. Whenever the evidence against one co-defendant is unfairly prejudicial to the defendant, an attorney should move to separate the trials. A defendant deserves a fair trial, which is impossible if the interests of the co-defendant(s) and the defendant are at odds.

Similarly, if a defendant has a number of unrelated cases against them that have been combined, a fair trial may not be possible. The risk exists that strong evidence in one case may cause the jury to convict the defendant in the other cases, even if conviction in those cases is not supported by the evidence. Rather than having to appeal based on sufficiency of the evidence, an attorney should file a motion to sever the cases and have each tried separately. If the motion is denied and the defendant convicted in all cases, failure to sever the cases is a strong basis for overturning the convictions on appeal.

7. Motions Particular to Individual States

Some states have pre-trial motions unique to their trial process, and counsel should investigate and take advantage of these motions. For instance, in many states, an attorney may file a motion for a bill of particulars. A bill of particulars requests the prosecutor to expand on a vague information or indictment and identify specific facts supporting the charge against the defendant, which can help a defendant prepare for trial or prepare a motion in limine to exclude certain evidence. It does not provide the prosecutor’s strategy or identify the precise evidence that the state will use to prove each element of its case, but a bill of particulars can assist the defense in limiting the evidence presented at trial and prevent surprise.

If the court denies a motion for a bill of particulars and the defendant is convicted, the denial may have deprived the defendant of a fair trial and is strong grounds for overturning the conviction on appeal.

In some states, a motion for a bill of particulars tolls the running of the speedy-trial calculation, so an attorney will need to consider whether the bill of particulars or the speedy-trial strategy is more effective.

Other pre-trial motions, if denied, can set up the grounds for a reversal of a conviction. The availability of motions such as this make it crucial for an attorney to investigate all available pre-trial motions.

Spolin Law P.C. Identifies All Possible Pre-Trial Motions

Attorney Aaron Spolin discussing with attorney of counsel Matthew Delgado | Spolin Law P.C.

The best criminal appeals lawyers will continue to fight for your rights before, during, and after trial.

Overturning a conviction on appeal is a daunting task. Generally, a defendant must show prejudice from an error in the trial to vacate the conviction, and appellate courts are reluctant to find prejudice that infected the fairness of the trial. A trial court’s denial of any of the motions listed above would provide strong support for prejudice and reversal of the conviction. They all go to whether the defendant received a fair and constitutionally sound trial, whether it is state or federal constitutional violations, the exclusion of evidence that could have been presented for the defense, or admission of unfairly prejudicial evidence or testimony. While pre-trial motions have a significant impact on how a criminal trial is conducted, they are also strategic ways to set up the success of an appeal and overturn a conviction.

When the award-winning criminal appeals lawyers at Spolin Law P.C. approach a case, we immediately review trial court transcripts to determine if the defense attorney missed any potential pre-trial motions. Additionally, we consider whether the trial court erred in denying any motions that were presented. This information will be the strong basis for our appeal or writ of habeas corpus.

To learn more about how we can help in your case, contact Spolin Law P.C. at (310) 424-5816.

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Texas’s Best: Aaron Spolin Ranked as One of Texas’s Top 10 Law Firms for Criminal Law

Published on January 16, 2022

Attorney Aaron Spolin Named One of “10 Best” Criminal Lawyers in Texas

Spolin Law P.C. is pleased to announce that lead attorney Aaron Spolin has been named one of the “10 Best” criminal law attorneys in Texas.

The impartial third-party attorney rating organization American Institute of Criminal Law Attorneys (AIOCLA) selected Mr. Spolin for its 2021 “10 Best in Criminal Law in Texas” list for exceptional and outstanding client services. However, there are several other criteria that contributed to Mr. Spolin being selected for this award.

Selection Criteria for “10 Best” Award

The American Institute of Criminal Law Attorneys has a high standard for selecting the top criminal law attorneys in each state. They select lawyers based on the following:

  • 10/10 in Client Satisfaction
  • Top Rated
  • Industry Leaders
  • No Unresolved Complaints
  • Awards
  • Associations
  • Publications
  • Speaking Engagements
  • Education and Continuing Education

The criminal defense lawyers who receive this award must be highly rated and actively engaged in the legal community in order for them to receive this award.

The AIOCLA Award Means Top Legal Assistance and Premier Customer Service

The American Institute of Criminal Law Attorneys “10 Best” Award indicates a lawyer provides top legal assistance and the best customer service. The AIOCLA is an “impartial third-party attorney rating service and invitation-only legal organization recognizing excellence in practitioners in the field.” There are six divisions in which attorneys may qualify, with Criminal Law being one of them.

This prestigious honor requires that each attorney must:

  • Be nominated by the Institute, a client, and/or a fellow attorney
  • Have attained the highest degree of professional achievement in the field of law
  • Achieve an impeccable Client Satisfaction rating

The Institute points out that “[m]any attorneys can achieve high degrees of success, but this is oftentimes at the expense or satisfaction of the most important person in the case – the client.” The AIOCLA awards attorneys that have achieved unparalleled success for the benefit of their clients. Membership in this category is an exclusive honor and is only extended to a select few who have reached the top of their professions while putting the client first.

Contact Attorney Aaron Spolin and Spolin Law P.C. for Your Criminal Case

The AIOCLA “10 Best in Criminal Law in Texas” award helps clients make educated decisions when it comes to choosing an attorney. Clients who select Spolin Law P.C. can know that they will get top criminal defense and criminal appeals legal assistance as well as premier customer service.

To speak with Texas criminal appeals attorney Aaron Spolin and the award-winning legal team at Spolin Law P.C. contact us at (310) 424-5816 or use our online contact form to schedule a consultation of your case. With offices conveniently located in Houston, Dallas, and Austin, we are accessible throughout Texas.

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Spolin Law Achieves Success for Client in the California Supreme Court

Published on November 25, 2021

Spolin Law successfully argued a client’s case in the Supreme Court of California, forcing the case back to the CA Court of Appeal for reconsideration.

On September 22, 2021, after nearly 10 months of review, the Supreme Court of California issued an order in a Spolin Law P.C. case that involved a client who was deprived of her Fourteenth Amendment right to due process. The client was convicted under the doctrine of natural and probable consequences, which is in direct violation of SB 1437, a Senate Bill that was passed in September 2018.

SB 1437 changed California Penal Code (PC) sections 188 and 189 to end the role of the “natural and probable consequences” doctrine in murder cases. It makes it harder for people to be convicted of felony murder with fewer exceptions. Many people have been released from prison for time served and had their sentences reduced under SB 1437.

After the passing of SB 1437, a groundbreaking case was decided in July 2021 – People v. Lewis 11 Cal.5th 952 (2021). That case held that the defendant is entitled to counsel, and there is no requirement for a distinct prima facie showing before the appointment of counsel.

In violation of Spolin Law client’s due process rights, the Superior Court did not appoint counsel as mandated by SB 1437 and related case law. Additionally, the Court did not give our client the opportunity to file a reply to the prosecution’s response to her petition.

Upon appeal, a Spolin Law attorney argued that our client could not be convicted under the current law. The Superior Court and Court of Appeal erred in determining that the client did not make prima facie showing of eligibility for resentencing. Our client was not only wrongfully convicted under the law, but she was not appointed counsel, nor given the right to file a reply in her case.

The Superior Court and the Court of Appeal failed to grant a hearing. If a hearing had taken place, Spolin Law attorneys argued that the prosecution would have been unable to prove beyond a reasonable doubt that our client was not convicted pursuant to the natural and probable consequences doctrine. As mentioned previously, SB 1437 made convictions under the natural and probable consequences doctrine invalid. Thus, our client could not be convicted under current law and her petition for resentencing pursuant to PC 1170.95 should have been granted.

The Supreme Court of California agreed that Spolin Law client’s case should be reconsidered in light of People v. Lewis. The case has been transferred back to the Court of Appeal, Second Appellate District, Division One, with directions to vacate its decision and reconsider.

Learn How a CA Criminal Appeals Lawyer Can Help in Your Case

Spolin Law P.C. is one of the top criminal appeals law firms in the nation. Founder and former prosecutor Aaron Spolin is ranked in the top 1% of attorneys in the state of California. He is an award-winning Los Angeles criminal appeals attorney. The lawyers at Spolin Law have worked with clients at all levels of the judicial process, including in the Supreme Court. We have a track record of success. For questions regarding how a criminal appeals lawyer may help you with your case, call (310) 424-5816.

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Thousands of California Inmates Eligible to Seek Reduced Sentences Under SB 775, Signed by Governor Gavin Newsom Yesterday

Published on October 6, 2021

After spending months in the California state legislature, Senate Bill 775 was just signed into law yesterday, October 5, 2021, by Governor Gavin Newsom. This revolutionary new bill will change the lives of hundreds of California inmates, resulting in many individuals leaving prison decades before they would otherwise be free.

California criminal appeals attorney Aaron Spolin explains this new law, how it will affect criminal cases, and how prison inmates can achieve their freedom if their cases fall under the law. Mr. Spolin’s extensive analysis has been published in video and article form, viewable here. The following information explains the history of the law and some details about its application.

What Is Senate Bill 775?

This bill, sponsored by District 13 senator Josh Becker, was introduced to the State Senate on February 19th, 2021, passed by the Senate on June 2nd, and passed by assembly on September 10. Now, just leaving the Governor’s desk, this recently signed bill will serve justice to those wrongly convicted of a killing by expanding on the legal protections stipulated in Senate Bill 1437.

How Does SB 775 Expand on SB 1437?

Senate Bill 1437, passed in 2018, prohibited prosecutors from seeking first or second-degree murder sentences for a “felony murder” case in which the person on trial was “not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.”

Senate Bill 1437, and now its counterpart Senate Bill 775, challenged the previously established “natural and probable consequences doctrine” under which someone’s malice was implied solely by their participation in the crime.

As these bills sought to highlight, such a concept had many flaws and fails to consider many very probable scenarios. As a result, those who may have participated in a crime, but were unaware of the killing and had no intent to inflict harm were put behind bars for murder in the first or second degree alongside the killer themself.

However, while Senate Bill 1437 was the first legislation to initially highlight this disparity in the criminal justice system, it did have some holes of its own that Senate Bill 775 hopes to fill and address; among the largest being the expansion of the Senate Bill 1437 protection to those convicted of manslaughter and attempted murder, not just murder.

Prior to the passage of Senate Bill 775, defendants in these situations would oftentimes plead guilty to a lesser charge than murder, like manslaughter, with hopes of a shorter sentence and a chance at a normal life once again. However, in doing so, these people cut themselves out of the chance to receive the post-conviction relief offered solely to murder convicts under Senate Bill 1437. Additionally, individuals convicted of attempted murder paradoxically received a worse outcome than those convicted of murder.

Senate Bill 775 has changed that, now allowing those with attempted murder and manslaughter convictions to petition to have those crimes (and the corresponding sentences) removed. Having this relief granted is not guaranteed, however, as they and their lawyer will need to convince a judge that they were not a “major participant who acted with reckless indifference to human life.”

How Spolin Law P.C. Will Use SB 775 To Benefit Clients

This update to California state legislation will have a grand and positive impact on the work done at Spolin Law P.C. With this extra layer of protection for those convicted of attempted murder or manslaughter, many individuals can now get the justice that was once awarded to felony murder cases.

To learn if you may be eligible for such post-conviction action or if you have any questions about SB 775, feel free to reach out to your (310) 424-5816 to begin your petition for a sentence reduction.

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Spolin Law PC Wins Case In Texas Court of Criminal Appeals.

Published on September 30, 2021
Spolin Law P.C. Legal Team

Spolin Law P.C. legal team.

The Texas Court of Criminal Appeals recently issued an opinion in favor of Spolin Law P.C.’s client who was wrongfully denied a jury trial.” (Case number PD-0593-20).”

In this 2016 case, the client waived his right to a trial by jury in anticipation of a negotiated plea agreement. That plea bargain was never completed, so the client attempted to withdraw the jury waiver multiple times. Instead, the trial court gave him a bench trial and he was found guilty and sentenced. The client contacted Spolin Law P.C. for help.

Spolin Law made arguments based on Constitutional and Texas law that the withdrawal requests of the client were valid, and he should have been given a jury trial. The Court of Criminal Appeals of Texas agreed with Spolin Law. As a result, the trial court decision has been reversed.

Arguments Spolin Law Used to Appeal the Case

Upon appeal, Spolin Law argued the following points for the client:

  1. He did not validly waive his right to a jury trial in the first place.
  2. The trial court abused its discretion by failing to permit him to withdraw the waiver of his right to a jury trial.

These arguments are based on the facts of the case and required legal arguments established in Constitutional law and prior case decisions in Texas.

A defendant has an “absolute” right to a jury trial; however, it may be waived. According to the Texas Code of Criminal Procedure, a waiver must “be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the state.” The Texas Appellate Court found that although the client had signed a document waiving his right to a jury trial, that waiver was not made in open court. Thus, the jury-trial waiver was not valid, and the trial court abused its discretion by failing to allow the client to withdraw his jury-trial waiver.

The Appellate Court further found that the defendant “certainly made his ambivalence about waiving a jury trial clear to the trial court at the very outset.” He made multiple requests for a jury trial on multiple occasions.

Outcome of the Case

On September 22, 2021, the Texas Court of Criminal Appeals reversed the lower court’s judgment and remanded the case to the trial court for a new trial consistent with the opinion. Spolin Law’s client will get his day in court before a jury of his peers.

Speak to a Texas Criminal Appeals Lawyer at Spolin Law P.C.

Spolin Law P.C. founder Aaron Spolin is a former prosecutor and a top-ranked criminal law attorney. He is an award-winning Texas criminal appeals attorney who is dedicated to fighting for the rights of his clients.

To speak with the legal team at Spolin Law P.C. about how the outcome of this case might affect your own case or any other criminal law matter, please call us at (866)-617-9620. The firm handles state and federal post-conviction matters.

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A Guide to Understanding Your Case Status Updates

Published on September 26, 2021
Case Status Details What This Means Next Steps

Requested — extension of time

Granted — extension of time

Updates on requested extensions of time are important to pay attention to as they adhere to strict timelines.

“Requested – extension of time” does not impact when the extension starts. Once the update says “Granted,” your attorney will be notified.

The clock for the given number of days of the extension starts when the extension is granted.

Tentative Opinion memo

Tentative opinion memos are used as a way to streamline oral arguments by determining in advance if an oral argument is needed.

If the court finds the legal arguments and facts to have been adequately presented in the briefs and record, then a Tentative Opinion memo would be filed to indicate the majority of the justices on the appeals panel agree on a tentative opinion.

Some tentative opinion memos will indicate what to focus on in oral argument, while others might express that oral argument would not significantly impact the decisional process.

The judges may change their mind on the ruling following oral argument, but it is rare that they do.

After a Tentative Opinion memo, the next step in the appeals process is typically oral argument.

If the majority of the justices on the appeals panel agree on a tentative opinion, then you have a choice of what your next steps are:

1. Counsel may notify the court to waive oral argument. Failure to waive oral argument is deemed as waiving it as well.

2. Counsel can reconfirm their original decision to request oral argument.

2.a. In this case, each party’s oral argument is limited to 15 minutes. Due to the fact that the judges are already briefed on the case and have made a tentative opinion, you are not permitted to repeat the arguments stated in your brief.

Disputed Issue memo

A Disputed Issue memo is a type of Tentative Opinion memo where the majority of justices on the panel do not concur on the tentative opinion. In this case, the court’s ruling depends on an issue to be discussed in oral argument.

Disputed Issue memos give both parties notice about what is going to happen at oral argument, and what issues to focus on to speed up the process.

If your case is met with a non-majority panel, you will receive the memo containing the main issues that were disputed by the panel members.

For the next steps, you and your attorney should go over what the Disputed Issue memo says to focus on to prepare for oral argument.

Notice of appeal lodged/received

Here the Court of Appeals is acknowledging they received the notice form the superior court.

After receiving this notice, attorneys don’t always check in, as it’s not a duty, so be sure to do so.

This start to the appeals process sets off a cascade of events that your attorney should be aware of.

Oral argument waiver notice sent

Oral argument is the time to emphasize the key issues of the case and make sure the court understands what is most important in your case. This can also be a time to ask the judges if they have any questions you can answer for them.

Happens if the court sends you a notice to ask if you want an oral argument and you do not respond.

The court assumes you are waiving your oral argument.

If the notice given by the court does not ask explicitly if you want to participate in oral argument, you can notify the appellate court that you would like to waive oral argument.

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Death Sentence of Texas’ Longest-Serving Death Row Inmate Overturned

Published on August 15, 2021
Lady Justice Holding Scales | Spolin Law

Lady Justice holding scales.

In Austin, TX on April 14th, 2021, the Texas Court of Criminal Appeals overturned the death sentence of the state’s longest-serving death row inmate. Raymond Riles, now 70, was sent to death row 45 years ago following a conviction for murder and attempted robbery that took place in 1974. The court recently ruled that Riles’ death sentence “can no longer stand,” because the jurors in his trial were not instructed to properly consider his mental illness as a possible mitigating factor.

Raymond Riles has spent more than 45 years wrapped up in Texas’ criminal justice system, starting with his initial death sentence in 1976. Riles spent the next few decades on death row after numerous execution dates would be set and then canceled as he was repeatedly deemed too mentally incompetent to be executed. Thea Posel, one of Riles’ attorneys, noted, “the first time they found him incompetent was in 1987 and 1988 and he has never been restored.”

Riles’ 1976 conviction was overturned shortly after he was sentenced. Riles claimed an insanity defense at his retrial in 1978 and had a number of experts testify that he had schizophrenia with paranoid delusions and psychosis. Relatives also cited a family history of severe mental illness and testified about his own history of “odd and often violent behavior” that persisted throughout most of his life. Despite these well-supported claims, doctors for the prosecution argued that Riles was faking a mental illness. As a result, the jury rejected Riles’ insanity defense. When jurors were later deliberating the sentence, they were only to decide if the murder was deliberate and if Riles is likely to be a danger to society in the future, in accordance with Texas law at that time. Once again, the jury voted to convict Riles of capital murder in 1978.

Things changed in Texas in 1989 when it was ruled that death penalty juries are required to consider mitigating evidence, including a mental illness, that may influence juries to decide for a lesser punishment. In their ruling, the judges for Riles’ case explain that the evidence of mental illness that Riles presented at trial “is the type of evidence that both [the Court of Criminal Appeals] and the Supreme Court have come to regard as the kind of ‘two-edged’ mitigating evidence calling for a separate, mitigation focused jury instruction.” Since the jury in Riles’ trial did not receive this instruction, the Court said his death sentence can no longer stand.

Herbert Washington, Riles’ co-defendant, was also sentenced to death on related charges, but his death sentence was commuted in 1978 to 50–25 years after he pleaded guilty.

Riles’ case has now been sent back to Harris County, where it was originally tried, to again determine his punishment now with an informed and properly instructed jury. While the Harris County DA’s office supported tossing the death sentence, they have not yet shared whether or not the office would seek the death penalty again. Riles’ capital murder conviction remains unchanged.

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Client travels around the country visiting family after Spolin Law gets wrongful murder charges dismissed.

Published on June 22, 2021
Client Office Visit Story (Featured Image 1) | Spolin Law

Attorneys and staff from Spolin Law P.C. meet with a former client. His murder case was entirely dismissed this past February.

A former Spolin Law client visited the firm’s main office and shared with his lawyers what he has been doing since his release. The client had been wrongfully charged with a gang-related murder and held in custody for nearly a year. (For more details about his case, read the original article written the day after his case was dismissed.) Last week the client met with five of the firm’s lawyers as well as some members of the firm’s administrative team.

After walking out of custody a free man, the client visited family all over the country to reconnect, celebrate his release, and begin the exciting next phase of his life. Much of his time was spent in Chicago and Los Angeles, where many of his family and friends live. And of course, he has not forgotten to spend a great deal of time with his mother, who probably spent even more time than the Spolin Law lawyers in fighting to secure her son’s release.

Client Office Visit Story (Featured Image 2) | Spolin Law

The client says goodbye as he moves on to the next phase of his life. Pictured (left to right): Hemi Tann, Arlene Binder, Don Nguyen, Jeremy Cutcher, and client.

In recounting his travels and celebrating his newfound freedom, the client met with the lawyers who had directly represented him, including Aaron Spolin, and Jeremy Cutcher. Two other attorneys on his legal defense team were not present: Caitlin Dukes and Matt Delgado (of counsel). Attorneys Don Nguyen, Arlene Binder, and Dan DeMaria had not represented him but were present for the happy occasion. Also present was law firm manager Dionne Parker; one of the firm’s case managers, Hemi Tann; and the mailroom manager Michael Alfi. The Spolin Law attorneys and staff were excited to hear about further travel and life plans in the client’s future.

To speak with Aaron Spolin or any of the firm’s attorneys about your case, call us at (866) 716-2805.

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How long does a California appeal take?

Published on June 12, 2021

Filing a criminal appeal in California is oftentimes a drawn-out and complicated process. If you plan on taking appellate action, knowing the basics of how it functions is crucial. The length of this appeals process varies from case to case, ranging anywhere from a couple of months to a couple of years. Nevertheless, while some cases may take longer than others to resolve, it is important that all appeals are filed quickly after a conviction sentencing.


Before filing, you must first confirm that you have a case that warrants an appeal. It is important that you reach out to an appellate attorney, who will look through the details of your case to identify any legal errors and advise you on what the next steps may be.

If the attorney confirms you are eligible, and you decide to proceed with an appeal, you will start the appellate process by filing a Notice of Appeal in the superior court. For misdemeanor cases, the deadline to file is 30 days from the date of judgement. Felony offenses, on the other hand, hold a 60-day deadline.

While direct appeals must be filed within this 30- and 60-day window, there are other types of post-conviction relief that may be submitted after this deadline has passed. Common examples include a California Writ of Habeas Corpus and an Application for Commutation of Sentence.

Can I file a late appeal?

In some cases, extensions may be granted for defendants who miss the designated deadline. In compliance with the 2018 California Rules of Court, in instances of public emergency, defendants will receive a longer time window to appeal.

Additionally, in the event that your attorney fails to provide proper assistance during the appeals filing process, the traditional 30- or 60-day deadline no longer applies. For example, if your attorney does not inform you of your right to appeal or provides misinformation about the deadline of your appeal, you may be eligible for an extension.

Furthermore, cases of constructive filing also serve as proper grounds for an appellate extension. This occurs when the appeal does not make it to the courthouse on time despite genuine efforts from the defendant. Filing the appeal with the wrong court or mailing delays that are out of your control are just some instances in which a constructive filing extension may be offered.

Certificate of Probable Cause

In addition to submitting a Notice of Appeal, you must file a Certificate of Probable Cause (CPC) which legitimizes the basis of the appeal. The court then receives 20 days to review the submission and either grant or deny the CPC.

Notice of Designation Record on Appeal

Within 10 days of filing your Notice of Appeal, you must also file a Notice of Designation Record on Appeal. Doing so will notify the involved parties (including the court clerk, court report, etc.) and facilitate the collecting of trial records and transcripts which will be used in the appellate proceedings.

Opening Brief

Once the primary paperwork has been completed and all the trial records have been compiled, the next step in the appellate process is the preparation of the opening brief. In an opening brief, your appeals attorney provides a summary of your trial, presents their argument, and requests a certain outcome.

The opening brief is expected to be submitted within 40 days of when the Notice of Designation Record on Appeal was filed. This is followed by the respondent’s brief which is filled by the opposing counsel within 30 days of the opening brief. Lastly, once the respondent’s brief is filed, the appellant is given 20 days to counter the respondent’s brief what is called the reply brief.

Oral Arguments

The next steps in the appellate process are the oral arguments, during which attorneys will be given the chance to argue their case in person and answer any lingering questions the presiding judge may have. You can expect these oral arguments to take place a few weeks after the filing of the briefs.

Contact Spolin Law P.C. About an Appeal in California

If you or a loved one plan on appealing a criminal conviction or have questions about your eligibility for an appeal or extension, don’t hesitate to reach out to Spolin Law P.C. today.

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Governor Grants Commutation for Yet Another Spolin Law Client

Published on June 3, 2021

The Firm’s Clients Have Now Been Included in 66% of All Commutation Batches Carried Out by Governor Gavin Newsom.

For the second time in a row, a Spolin Law client was included in Governor Gavin Newsom’s summer commutation batch, which occurred last Friday. The client and his family were beyond excited to learn that the client’s life-without-the-possibility-of-parole sentence had been removed by the governor. The client is now eligible to re-enter society through the parole process.

The first page of Governor Gavin Newsom's Commutation Order from this past Friday

Above Image The first page of Governor Gavin Newsom’s Commutation Order from this past Friday.

Historically, some governors have waited until the end of their terms to issue commutations and pardons. However, Governor Gavin Newsom has been issuing large batches of commutations every summer throughout his term. This has included a batch in August of 2019, June of 2020, and May of 2021. Spolin Law is proud to note that the firm’s clients have been included in the last two of these three batches issued by Governor Newsom.

In publicly announcing the commutation, Governor Newsom had the following words to say about the client:

  • In 1995, Omar Walker and his crime partner committed a robbery. The crime partner shot and killed the victim. On November 25, 1997, the Superior Court of California, County of Los Angeles, sentenced Mr. Walker to life without the possibility of parole for murder and three years for three counts of robbery, plus 16 years and eight months of sentence enhancements.
  • … While serving a sentence with no hope of release, Mr. Walker has devoted himself to his self-improvement. Mr. Walker completed vocational training and has engaged in extensive self-help programming. He is currently assigned to the Delancey Street Honors Unit, a program that teaches job and life skills in preparation for release…
  • Mr. Walker participated in a serious crime that took the victim’s life. Since then, Mr. Walker has dedicated himself to his rehabilitation and becoming a productive citizen. I have carefully considered and weighed the evidence of Mr. Walker’s positive conduct in prison, the fact that he was a youthful offender, and his good prospects for successful community reentry…
  • This act of clemency for Mr. Walker does not minimize or forgive his conduct or the harm it caused. It does recognize the work he has done since to transform himself.

Commuting a sentence is one of the Governor’s most powerful abilities. State governors (like Governor Newsom) are able to commute sentences or pardon convicts for individuals convicted of state crimes. The President of the United States is able to commute and pardon federal crimes.

To learn more about commutations and other types of post-conviction relief, call one of the lawyers at Spolin Law P.C. We are available at (310) 424-5816.

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