As a criminal appeals lawyer in Texas, writing appeal briefs is the most important thing I do, but understandably, many clients who hire me have never seen an appeal brief and do not know what they are. This blog will explain what an appeal brief is. Hopefully, it will help people who may be hiring a criminal appeals lawyer better understand what we do and why it is important to hire someone who is experienced at criminal appeals in Texas.
A brief is the name lawyers use for a written legal argument. An appeal brief is one that is used in appeals. The Texas Rules of Appellate Procedure actually specify the sections that the first brief in a criminal appeal must contain. They include: table of contents, table of authorities, statement regarding oral argument, issues on appeal, summary of argument, statement of facts, argument, and conclusion.
A criminal appeal in Texas essentially consists of the appeal briefs filed by the parties, oral argument if allowed by the appeals court, and the court’s opinion. In an appeal, there is no trial, and no witnesses are called. The court of appeals normally looks only at what happened in the trial court and does not allow any new evidence. This means that an appeals lawyer is normally stuck with what happened at trial.
The appeals lawyer carefully studies the record in the trial court, which consists of everything that was filed in the trial court and the transcripts of any hearings and the trial. From this, the appeals lawyer looks for arguments that might persuade the court of appeals that something seriously wrong happened in the trial court so that the case should be reversed or that a new trial on guilt or sentencing should be given.
The side that is appealing files the first brief. It contains all of the arguments that the appealing party wants to raise on appeal. Generally, you cannot make any new arguments after you file the first brief.
The arguments for changing the result at trial are numbered in a list in the statement of issues on appeal. An example might be: (1) The district court erred by overruling the defendant’s objection to the admissibility of the defendant’s post-arrest statements to law enforcement. By listing the arguments by number like this, the parties and the court of appeals can easily identify and address the specific arguments the appealing party is making.
The statement of facts and the argument must identify the precise page number in the record that is referenced. For example, if the brief quotes testimony by a witness at trial, it must identify the record volume and page number where that testimony can be found. The argument must also specifically identify the legal authority on which the argument relies, whether that is case law, statutes, the Texas Rules of Evidence, the Texas Code of Criminal Procedure, or some other authority.
After the appealing party files its brief, the opposing party (usually the State) files its brief. This brief responds to the arguments in the first brief. After that, the appealing party may file a reply brief that responds to the second brief, but the reply brief generally cannot add any new arguments not raised in the first brief.
Before the briefing is done, the judges on the court of appeals usually will not have looked at the merits of the case at all. Once the briefing has been filed with the court of appeals, the court will decide whether or not to grant oral argument, which is a chance for the lawyers to make oral presentations to the judges about the arguments raised in the briefs and to answer the judges’ questions about them. Only lawyers may speak at oral argument. After that, there will either be oral argument, followed by the court of appeals issuing a written opinion addressing all of the issues sometime later, or the court may deny oral argument and simply issue a written opinion.
Unlike criminal trial lawyers, who stand up in court and make oral presentations to juries, a criminal appeals lawyer’s most important function is to identify potentially winning arguments and to write them persuasively in the briefs. For this reason, many criminal trial lawyers do not handle appeals, and many criminal appeals lawyers do not try cases.
If you or a loved one has been convicted at a criminal trial in Texas, you should consult with a knowledgeable criminal appeals lawyer in Dallas. I strongly recommend that you not rely on someone who is only a trial lawyer, because the skills of an appeals lawyer and a trial lawyer are very different.
Dallas Appeals Attorney John Helms