Stage 1: Notice of Appeal

This is the document that indicates you wish to file an appeal. It must be completed by the appellant or their legal representative. There are strict guidelines and deadlines that must be followed in order to successfully submit an appeal. A notice of appeal must be filed in Texas within 30 days of the signing of the final judgment, or within 90 days of the final judgment if a motion for a new trial is filed.

Stage 2: Transcript Preparation

You must also file a request and pay for the clerk’s and reporter’s records. Official transcripts will be compiled that document all evidence and testimony presented during your initial trial. You and your appeal lawyer can review these materials to determine if the original case progressed appropriately, if decisions were legally sound, and if there was any defect. It is important to work with an experienced appeal lawyer who is familiar with Texas criminal laws and court procedure because you will have to pinpoint problems in the original case.

Stage 3: Opening & Respondent’s Briefs

You may file a brief along with your notice of appeal or you may file a motion for an extension of time to file your brief. The brief will present a formal argument as to why your are entitled to an appeal. This will likely include an analysis of the trial court’s ruling, where a fault occurred, and the legal justification that supports your case. The prosecution or respondent in a criminal appeal will also have a chance to submit a brief. Their brief may refute that an error occurred, or state that if a mistake did happen, it did not influence the ultimate decision.

Stage 4: Reply Brief

In your original court case, the burden of proof was on the prosecution; however, upon appeal the burden of proof shifts to the defendant (you). Although the prosecution may refute that an error occurred in your case, you will have an opportunity to rebut that assertion. While you cannot present new evidence, you can point out inaccuracies in the prosecution’s statement and in the trial court’s decision. This is a hyper-technical process, best handled by an articulate lawyer.

Stage 5: Oral Arguments & Petition for Rehearing

While briefs are written and presented by both sides, criminal appeals may also involve oral arguments. If requested and granted by the appellate court, oral arguments will allow you to highlight the facts of the case, explain significant issues, and provide clarity to any questions. Your attorney should have an extensive background in making appellate arguments.
The appellate court will render a judgment and issue an opinion, and either party may petition for rehearing. The appellate court will rule on the motion for rehearing, and then a final judgment will be made.

Stage 6: Petition for Review

Although you may request a rehearing after a decision is made by the Court of Appeals, you also have the option to appeal to the Texas Court of Criminal Appeals. You must submit a Petition for Review, requesting that your case be chosen for consideration. If your petition is granted, the next step will be a separate “Brief on the Merits” in which you explain how and why the Court of Appeals disposition was incorrect.

What Is a Writ of Habeas Corpus?

A direct appeal challenges the court decision; whereas, a writ is a petition to enforce fundamental statutory rights as stated in the laws. The most common criminal writ is a writ of habeas corpus, which determines if an imprisonment or detention is lawful. This type of writ is meant to address barriers that keep a person unlawfully detained; however, it has limitations that are best addressed by an experienced appeals lawyer.

Other Types of Writs

Writs are legal remedies that are powerful enough to force courts and public officials to act or stop action. They can even facilitate the immediate release of an inmate, order new trials and court proceedings, and correct fundamental errors in a case.

Common Writs are:

• Writ of Habeas Corpus
• Writ of Mandamus
• Writ of Prohibition
• Writ of Certiorari
• Writ of Quo Warrant
• Writ of Error Coram Nobis

Important Writ Deadlines

There are time limits for filing writs which depend on whether the writ is statutory or a matter of common law (established by prior cases). Statutory writs are controlled by the statutes, or laws, that create them. Examples include writs to disqualify a judge or prosecutor or criminal dismissals. Each statute defines a deadline, and failure to file it in a timely manner may result in the court denying the petition. You may lose the right to have an important issue reviewed if you fail to meet the deadline.

Common law writs may be issued when courts believe remedies expressly stated by laws have failed. Although no absolute deadlines exist for most common law writs, the general rule is to file them no later than 60 days after giving notice that you are challenging an order. If there is unreasonable delay, a common law writ may be dismissed as well.

The Writ Process

Writs in Texas usually follow a multi-step process:

Step 1: Initial Writ Petition

– This is an official request for the court to review an issue. The facts and legal implications should be specifically stated in the writ petition. For example, in a habeas corpus petition, an inmate may ask the court to reconsider their sentence.

Step 2: Court Evaluation of the Petition

– The court will consider the petitioner’s argument. For example, in a habeas corpus matter, the court will determine if a sentence was fair and legally sound.

Step 3: Court’s “Order to Show Cause”

– If the court needs additional information to make a determination, it may issue an Order to Show Cause. The purpose is to justify, explain, or prove something to the court as a matter of law.

Step 4: Government’s Opposition & Petitioner’s Traverse

– Both sides of a case will be able to present written replies. The government will defend the original decision, and the petitioner can counter with their claims.

Step 5: Writ Hearing

– A court may hear oral arguments, where both sides can present evidence and argue the merits of the issues.

Step 6: Judge’s Decision

– The judge will make a determination based on the written documents and oral arguments that they have heard. A judge may grant relief through an official writ or deny it.