Texas Appeals

Question 1

When is the State entitled to appeal an order of a court in a criminal case?

Answer 1

1. it dismisses an indictment, information, or complaint or any portion of them
2. it arrests or modifies a judgment
3. it grants a new trial
4. it sustains a claim of former jeopardy
5. it grants a motion to suppress evidence, confession, or admission if jeopardy has not attached and the prosecuting attorney certifies to the trial court the appeal is not taken for purpose of delay and the evidence, confession, or admission is of substantial importance to the case
6. it is issued under Chapter 64 (DNA testing)
7. the sentence is illegal
8. a ruling on a question of law if defendant is convicted and appeals

Question 2

When must the State file its notice of appeal?

Answer 2

Not later than the 20th day after the date on which the order, ruling, or sentence to be appealed in entered by the court.

Question 3

Define “prosecuting attorney.”

Answer 3

The county attorney, district attorney, or criminal district attorney. It does not include an assistant prosecuting attorney.

Question 4

When is a defendant entitled to a bond pending appeal?

Answer 4

• in any misdemeanor conviction

- if any conviction is reversed by the court of appeals

Question 5

When is a defendant prohibited from making bond pending appeal?

Answer 5

• if the sentence equals or exceeds 10 years

- if the defendant has been convicted for 3g offense

Question 6

When can a defendant sentenced to less than 10 years be denied bond pending appeal?

Answer 6

• good cause exists to believe defendant would not appear when the conviction became final
• good cause exists to believe defendant is likely to commit another offense while on bail

Question 7

If a conviction is reversed by the court of appeals, who determines the amount of bail to be set?

Answer 7

• court of appeals if defendant requests it before a PDR is filed
• court of criminal appeals if defendant requests it after a PDR is filed

Question 8

When is a motion for new trial required as a prerequisite to presenting an error on appeal?

Answer 8

Only when necessary to adduce facts not in the record.

Question 9

When must a defendant be granted a new trial or new trial on punishment?

Answer 9

1. defendant unlawfully tried in absentia or denied counsel
2. court has misdirected the jury on the law or committed some other material error likely to injure defendant’s rights
3. when the jury decided the verdict by lot
4. when a juror has been bribed to convict
5. when a material defense witness has been kept from court by force, threats, or fraud, or when evidence tending to establish defendant’s innocence has been intentionally destroyed or withheld
6. after retiring to deliberate, the jury receives other evidence; when juror has talked to anyone about the case; or when juror became so intoxicated it influence his vote
7. jury engaged in misconduct the defendant did not receive a fair and impartial trial

Question 10

When must a motion for new trial be filed?

Answer 10

No later than 30 days after the date the trial court imposes or suspends sentence in open court.

Question 11

When may a motion for new trial be amend?

Answer 11

No later than 30 days after the date the trial court imposes or suspends sentence in open court.

Question 12

When must the defendant present the motion for new trial to the trial court?

Answer 12

Within 10 days of filing it unless the trial court permits it to be presented and heard within 75 days from the date when sentence was imposed or suspended.

Question 13

What type of evidence is allowed at a hearing on a motion for new trial?

Answer 13

The trial court may receive evidence by affidavit or otherwise.

Question 14

When must the trial court rule on a motion for new trial?

Answer 14

Within 75 days of imposing or suspending sentence.

Question 15

What happens if the trial court does not rule on the motion for new trial within the 75 days period?

Answer 15

It is deemed denied.

Question 16

What is the affect of granting a new trial?

Answer 16

It restores the case to its position before the trial. If it is a new trial only to punishment, it restores the case to its position after being found guilty.

Question 17

If a new trial is granted only to punishment, may a defendant change who is to assess punishment from the manner previously chosen?

Answer 17

Only upon approval by the State and the trial court.

Question 18

What is a “motion in arrest of judgment?”

Answer 18

A defendant’s suggestion the judgment rendered against him was contrary to law.

Question 19

What are the grounds a motion in arrest of judgment may be based?

Answer 19

1. indictment or information is subject to an exception on substantive grounds
2. the verdict is substantially defective in relation to the indictment or information
3. the judgment is invalid for some other reason

Question 20

When must a motion in arrest of judgment be filed?

Answer 20

No later than 30 days after the date the trial court imposes or suspends sentence in open court.

Question 21

When can a defective notice of appeal be amended?

Answer 21

Any time before the appealing party’s brief is filed.

Question 22

When must a defendant file his notice of appeal?

Answer 22

Within 30 days after the day sentence is imposed or suspended in open court

OR

Within 90 days after the day sentence is imposed or suspended in open court if a motion for new trial is timely filed

Question 23

Can the time to file a notice of appeal be extended and, if so, when?

Answer 23

If within 15 days after the deadline to file notice of appeal, the party:

1. files notice of appeal in the trial court; AND
2. files a motion for extension in the appellate court

Question 24

Discuss “constitutional error.”

Answer 24

If the appellate record reveals constitutional error that is subject to harmless error review, the COA must reverse the judgment of conviction or punishment UNLESS it determines beyond a reasonable doubt the error did not contribute to the conviction or punishment.

Question 25

Discuss “non-constitutional error.”

Answer 25

Any other error, defect, irregularity, or variance that doe not affect substantial rights must be disregarded.

Question 26

What are the reasons for granting a PDR?

Answer 26

1. COA decision conflicts with another COA
2. COA decided an important question of state or federal law that has not been, but should be, settled by CCA
3. COA decided an important question of state or federal law in a way that conflicts with decisions of the SCOTUS or CCA
4. COA has declared a statute, rule, regulation, or ordinance unconstitutional, or appears to have misconstrued a statute, rule, regulation, or ordinance
5. the justices of the COA have disagreed on a material question of law necessary to the court’s decision
6. COA has so far departed from the accepted and usual course of judicial proceedings as to call for an exercise of the CCA’s power of supervision

Question 27

How does the CCA decide to grant PDR?

Answer 27

By a vote of at least four of the judges

Question 28

What is the time limit for filing a PDR?

Answer 28

Within 30 days of the COA judgment or the last timely motion for rehearing is overruled

Question 29

Can the time to file a PDR be extended and, if so, how?

Answer 29

It can be extended by filing a motion to extend no later than 15 days after the last day of filing the PDR

Question 30

Where is the PDR filed?

Answer 30

In the CCA

Question 31

What are the types of judgments the CCA may issue?

Answer 31

1. affirm - in whole or in part
2. modify and affirm as modified
3. reverse - in whole or in part - and render
4. reverse and remand
5. vacate and dismiss
6. vacate and remand
7. dismiss the appeal

Question 32

What is the time limit for filing a motion for rehearing in the CCA?

Answer 32

Within 15 days from the date of the judgment or order.

Can be shortened in exceptional cases.