Appeals
John Helms – Dallas Based Criminal Appellate Lawyer
I am a criminal appellate lawyer in Dallas, Texas. I handle federal and state appeals for people who have been convicted of crimes in courts in Dallas, Fort Worth, Plano, Sherman, and throughout the State of Texas.
When I am hired to handle a criminal appeal, it is usually because something has gone very wrong. People usually call me when they are in shock, because a spouse, son or daughter, or other relative has just been found guilty of a serious crime and sentenced to a long prison term. Even worse, their loved one is often in custody as a result of the conviction. This is distressing on its own, but it also means that the family cannot talk to their loved one about the future and their fears. This can lead to feelings of loneliness and despair.
Usually, the family knows that their loved one has been charged with a crime, but they may not know a lot about what has been happening with the case. They are hoping and praying that the case will turn out well, but then, suddenly, almost without warning, they learn that their loved one has just been sentenced to serve many years in prison. They are angry, scared, and upset. How could this happen? Why didn’t we know? What can we do now? When will he be able to come home? These are the questions I am regularly asked.
What Is An Appeal?
An important part of what I do is explaining to loved ones of the accused how the appeals process works, and what they can expect. A big part of their anxiety is that they do not know what happens next, or how things work. They have probably heard that you can appeal a criminal conviction, but understandably, what that involves is a mystery to them. They have probably never gone through a criminal trial, much less an appeal.
I have found that explaining how an appeal works, in plain and simple terms, without a lot of legal jargon, can help ease the family’s anxiety. For that reason, I talk to the family about these issues right away. I want them to know that I understand what they are feeling. I want them to know that, by hiring an excellent appeals lawyer, they are doing the best thing they can to help their loved one. I want them to know that I care.
An appeal consists of arguments that something wrong happened in the trial court that justifies changing the judgment. These arguments are made to a court of appeals. In both federal courts and Texas state courts, a court of appeals will randomly assign each appeal to a “panel” of three judges. Each judge votes on how the appeal should be decided. In most appeals, all three judges agree, but sometimes, an appeal is decided by a 2-1 majority. The judge who is not in the majority may write a “dissent,” which explains why that judge did not agree with the other two.
In Texas state court appeals, there are fourteen courts of appeal that handle direct appeals from trial courts. They each cover geographic regions around the state. For example, the Fifth Court of Appeals sits in Dallas. It hears cases from trial courts in Dallas, Collin, Hunt, Rockwall, Kaufman, and Grayson Counties. The courts of appeal hear both civil and criminal appeals. In Texas, judges of the courts of appeal are called “justices.” They are elected by voters in the counties they serve. For many years, the Fifth Court of Appeals in Dallas consisted almost exclusively of Republican justices. After the most recent elections, however, Democrats now make up a majority on that court.
In Texas, if you lose in the court of appeals, you can ask the highest court in the state to consider the appeal. For civil cases, the highest court is the Texas Supreme Court. For criminal cases, the highest court is the Texas Court of Criminal Appeals. They are both in Austin. In fact, they are in a building across the hall from each other.
In either case, you normally do not have a right to appeal to them. Instead, you have to file a “petition” asking them to consider the appeal. The Texas Supreme Court and the Texas Court of Criminal Appeals only agree to hear a small percentage of appeals. They normally only hear cases in which there is an important legal issue they need to resolve or in which there appears to be a manifestly incorrect decision by the court of appeals.
Federal Appeals
In federal courts in Texas, appeals go to the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit handles civil and criminal appeals from federal trial courts in Texas, Louisiana, and Mississippi. Federal appellate judges are called “judges.” They are all appointed by the President for life.
My first job after law school was as a law clerk for the Chief Judge of the Fifth Circuit, Charles Clark. I drafted opinions for Judge Clark, which he would review and edit. The case on which I worked of which I am most proud is Christophersen v. Allied-Signal Corp., 939 F.2e 1106 (5th Cir. 1991) (en banc). This was an important case about expert testimony. It was so important that, after a panel of three judges had written an opinion, all of the judges of the Fifth Circuit agreed to hear the case together. Judge Clark agreed with the result that the majority reached, but he significantly disagreed with their reasoning. Therefore, he filed a separate written opinion, which I drafted, called a “concurrence.” It explained why he agreed with the result, but disagreed with the legal reasoning. Judge Clark was the only judge on the Fifth Circuit who felt that way.
The reason I am so proud of my work on the Christophersen case is because the United States Supreme Court considered the expert testimony issues from Christophersen less than two years later, in a landmark case called Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). In Daubert, the Supreme Court adopted the same approach that Judge Clark advocated in his concurrence. Daubert is now taught in law schools, and courts regularly hold hearings known as Daubert hearings.
Appeals from the Fifth Circuit, and the other federal courts of appeal, go to the United States Supreme Court. In almost all cases, the Supreme Court only hears appeals that it agrees to hear. To request that the Supreme court hear an appeal, you submit a “petition for a writ of certiorari,” also known as a “cert. petition.” The Supreme Court only agrees to hear a very small percentage of cases that have national significance.
What Kinds Of Arguments Can You Make In An Appeal?
Many people assume that an appeal is like a second opinion—that is, does the court of appeals agree or disagree with the result in the trial court. This is not correct. An appeal is not a chance to make the same arguments again, but to a different audience. Instead, you have to show the court of appeals that there was some type of legal error in the trial court that justifies changing the trial court’s judgment.
Appeals are limited to the record of what happened in the trial court. If there was a trial, the record includes a transcript of the trial testimony and the other evidence from the trial. You cannot introduce new evidence in an appeal. You are stuck with the evidence from the trial court. This means that you cannot call witnesses to testify during an appeal. The only testimony that the court of appeals will consider is the testimony from the trial court.
Arguments to a court of appeal are made in written “briefs.” Briefs have to follow a specific format. For federal appeals, Rule 28 of the Federal Rules of Appellate Procedure specifies the format. For Texas state appeals, Rule 38 of the Texas Rules of Appellate Procedure specifies the format. Below, I have included links to some examples of briefs that I have written. These will give you an idea of what an appeal brief is like.
Examples of arguments that are frequently made on appeal include: (1) the evidence was insufficient to support the judgment; (2) the trial court committed an error by allowing the jury to consider certain evidence or by refusing to let the jury hear certain evidence; and (3) the trial court incorrectly instructed the jury on the law.
The first example—sufficiency of the evidence—is a good way to illustrate the difference between a trial and an appeal. A court of appeal does not just consider whether it agrees or disagrees with the jury’s decision. Instead, courts of appeal say that they will not second guess a jury unless no reasonable jury could have come to that conclusion.
In criminal cases, for example, the United States Supreme Court has held that the issue is whether “any rational [jury] could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Texas follows this formulation in state court cases.
What Should You Look For In An Appeals Lawyer?
So, what do you need to know when you are trying to hire an appeals lawyer? First, you need to recognize that an appeal is very different from a case in the trial court. In fact, most criminal trial lawyers do not even handle appeals.
When people are hiring a lawyer for a criminal trial, they might look for someone who is a smooth talker, who seems like they would be able to persuade a jury. Or, they might look for someone who comes across as tough, or a “fighter,” because they might be able to intimidate a prosecutor. Or, maybe they want someone who they think would have a good relationship with the judge. It may surprise a lot of people, but none of these things matter for an appeals lawyer.
Criminal trials involve trying to persuade a jury of regular people from the community that a person is not guilty. Being able to communicate with people who are not lawyers is a skill that trial lawyers develop. Appeals lawyers do not try to persuade juries. There are no juries in an appeal. An appeal is decided by a panel of three judges, who are all lawyers. Even more importantly, for an appeal, most of the persuasion of those judges is done in writing—not in court.
When you see television reports about criminal cases, they are almost about trials. This is because trials involve a lot of drama and emotion. Lawyers give impassioned speeches. Witnesses give dramatic accounts of what happened. Victims may break down in tears. All of these things are made for television.
You almost never see television coverage of appeals. Why? Because the most important part of an appeal is the written arguments that the lawyers make to the court in the briefs they file. They are made by lawyers for lawyers. They are not good television material.
So, unlike trial lawyers, appeals lawyers do most of their work in writing, and they address their arguments to judges, who are lawyers, not members of the community. There are no witnesses who testify in an appeal. Being a smooth talker, or a tough guy, or knowing a judge, just does not matter much at all for an appeal.
So, what do you want in an appeals lawyer?
First, obviously, you want someone who has expertise in handling appeals. Why? Because an appeals lawyer knows the kinds of arguments that can work on appeal. An appeal is not like a second opinion. You are not just trying to convince the appeals judges that the trial court case should have come out differently. You have to do more than that. The law says that, even if the appeals court judges would have decided the case differently than the jury, they must uphold the jury’s verdict if any reasonable jury could have come to that conclusion, or unless there was a legal error that affected the fairness or the likely outcome of the trial. This means that the kinds of arguments that might work at trial probably will not work on appeal.
I learned that lesson in my first year out of law school, many years ago, while I was working for Chief Judge Clark on the U.S. Fifth Circuit Court of Appeals. Judge Clark assigned me to work on an appeal from a multi-million dollar jury verdict in a civil case from Texas. The trial lawyer was one of the most famous trial lawyers in Texas. He had done a masterful job in the trial court, and he had scored a huge victory from the jury. There were some significant legal problems with the case that came out on appeal, though. At the oral argument, I watched this famous trial lawyer make an argument to the three appeals judges that was just like a jury argument. He made an emotional appeal for the verdict, but he failed to handle the difficult legal issues effectively. He forgot that his audience was a group of highly experienced judges, and not the regular folks on a jury. I drafted the opinion for the appeals court, which my judge approved with almost no changes. Needless to say, the trial lawyer lost the entire judgment on appeal. I will never forget the lesson from that case: Know your audience, and never treat an appeal like a jury argument.
The most important job for an appeals lawyer is to identify arguments for the appeal. On appeal, you cannot introduce new evidence. You cannot call witnesses. You are limited to what happened in the trial court. So, you do not interview witnesses or look for new evidence that might have changed the outcome. That does not help, because you generally cannot introduce new evidence on appeal.
Instead, you have to study carefully the “record” of what happened in the trial court. You are looking for legal errors made in the trial court. You have to think creatively, and you have to find cases, rules, or laws that show that the potential errors you found require the judgment to be reversed, or a new trial to be granted, or a new sentencing to be granted. In other words, you do a lot of reading and researching.
Once you have identified potential errors, you have to make a written argument for the court of appeals—the brief. You must be able to write clearly and persuasively, knowing that your audience will be three judges. For example, when I write appeal briefs, I write in a much more academic or lawyerly style than what you are reading right now.
The Government will write a response brief to my arguments, and I can then write a reply brief that responds to the Government’s arguments. So, appeals lawyers do a lot of writing.
All of this is to say that, instead of being a smooth talker, or a tough guy, or having connections to the judge, appeals lawyers need to be studious, creative, and excellent legal writers. Many trial lawyers do not like to study, research, and write. They may prefer the drama and the limelight of trials or making impassioned pleas to juries. They often thrive on their ability to “wing it.” Working on appeals, however, is mostly reading, researching, and writing in an office. It is not glamorous. It can be very tedious. That is probably why many trial lawyers do not handle appeals.
I enjoy handling appeals because they are an intellectual challenge. Working on an appeal is sometimes like trying to solve a really difficult puzzle or mystery. When I was a federal prosecutor, I was in the trial section. We had an appeals section, but unlike many prosecutors, I handled all of the appeals from my cases. I also volunteered to help the appeals section by handling appeals from cases of other prosecutors, just because I like doing appeals.
The biggest difference between the intellectual exercise of solving a mystery and handling a criminal appeal is that an appeal involves someone whose freedom and future is at stake. And that person will have a family who may suffer a tremendous emotional loss from their loved one going to prison. They may also depend on that person financially, which means that they may fear what will happen to them if their loved one cannot provide for them. So, even though an appeal is an intellectual challenge, I never forget that every appeal involves real people, real lives, and real futures. In the briefs I write, I try to remind the court of appeals of that, too.
My approach to appeals is simple:
Figure out how to get the best possible result and do everything possible to achieve it. Over the course of my career, I have had a lot of success doing that. For example, as a federal prosecutor, I never lost an appeal. I was also named Appellate Lawyer of the Week for the entire State of Texas, by Texas Lawyer Magazine, for obtaining a complete reversal of all convictions in the State’s highest criminal appeals court, for two clients who were convicted of bribing a judge in a very high-profile case. Those cases are Stacy Stine Cary v. State, 507 S.W.3d 750 (Tex. Crim. App. 2016), David Cary v. State, 507 S.W.3d 761 (Tex. Crim. App. 2016).
An appeal may be the last realistic chance the accused has to avoid a harsh or unjust result from a criminal trial. There are limited procedures that are available after an appeal, but they are rarely successful, because the legal hurdles are very high. For these reasons, it is critical for anyone facing an appeal from a criminal conviction to hire a truly outstanding appeals lawyer. Look for someone who has expertise in appeals, who is a smart and creative lawyer, who is an excellent legal writer, and who has a track record of success in appeals. It may even help to ask the lawyer to give you examples of briefs they have written recently, so that you can actually see the quality of their work. I have provided links to some examples of my appeal briefs, below.
I would be remiss if I did not mention the fees I charge for appeals. I normally charge a flat rate of between $10,000 and $20,000 for criminal appeals. The fee I charge depends on whether it is a state court or a federal court appeal and how complicated I expect it to be. For more complicated cases, I charge more, because I will have to do more work. I usually go online and look at the trial court’s docket to get a sense of how complicated the appeal will be. I believe my fees are more than fair, compared to other lawyers, especially considering what I bring to the table. I am fortunate to have low overhead costs, so I do not need to inflate my fees to pay my monthly expenses. My fees are based on the amount of work I expect to do.
If you hire me for an appeal, I will charge a fair fee, I will treat you with respect, and I will never forget that many people’s lives and futures may be at stake.
If you or a loved one has been convicted of a crime after a trial in a state or federal court in Dallas, Fort Worth, Plano, Sherman, or in any other city or town in Texas, I invite you to contact my office to discuss representation on appeal.
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FAQ
If you have not been arrested or charged with a crime, but the police have told you that they would like to talk to you, what do you do? Do not say a thing; let them know you want to use your right to get a lawyer. And do it ASAP.
Whenever you have any dealings with the police, you should be represented by a lawyer. If they are looking for you, if they want to talk to you, if they want to arrest you, or if someone has contacted law enforcement and accused you of a crime, you need a lawyer.
Even if you plan on pleading guilty, it is critical that you hire a criminal defense lawyer to protect your rights. Representing yourself is never a good idea. Even if you plead guilty, you can expect that prosecutors will try to take advantage of your inexperience by only agreeing to a plea deal that is less favorable than they would with a lawyer. Plus, an attorney may be able to spot problems with the government’s case that you would not recognize, like evidence that should be suppressed. Problems like that might result in dismissal of the charges altogether, but just being able to spot them can help negotiate a better deal with a prosecutor. An attorney, especially a former prosecutor like me, can help you protect your rights, evaluate your options, and negotiate with the prosecutors for the most favorable outcome.
In criminal cases, we usually charge a flat rate for everything but trial and a trial fee that is only owed if the case goes to trial. A flat fee means that, no matter how much work the lawyer has to do, you know up front what the fee is going to be. We base our fees on our estimate of the amount of time and work that will be required to defend the case. We are not a factory type of operation, so we generally do not have “grocery store” pricing, in which a given crime costs a set amount regardless of the facts. Each case is different, and we try to tailor our fees to your individual case. That means that we want to find out about your case and that we try to set our fees based on how much work we think your case will take and how complicated it will be.
If you are under investigation, but you have not been charged, we may offer to represent you during the investigation based on an hourly rate with a cost deposit that we bill against. This can benefit you because it can be difficult to predict how much work it will take to represent someone during an investigation, and an hourly rate means that you will only pay for the work done.
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