Jennifer Anton | 00:05
Hi, we’re here today with one of Dallas’ premier criminal defense attorneys. John Helms. John’s going to talk to us today about the appeals process in criminal cases, and we’re really lucky to have him here. So welcome, John.
John Helms | 00:20
Thank you. Thanks for having me.
Jennifer Anton | 00:22
Of course. First, I want to start off and ask you a question. Kind of big picture question. Tell us a little bit about the primary differences between federal and Texas state criminal appeals processes.
John Helms | 00:39
Well, The main difference between Texas state court criminal appeals and federal criminal appeals is the end of the line, the end of the process. The law, as far as Pellet law is pretty similar, really. But let me describe the process and then you’ll see what I mean by the end of the line.
So in federal court, you start out with a trial court which we call a federal district court. That’s the case that the court where the trial took place. When you appeal that, Texas as well as Louisiana and Mississippi, you’re going to appeal it to the Fifth Circuit Court of Appeals. They handle all the appeals for civil and criminal cases in Texas, Louisiana, and Mississippi. After that, you can ask the United States Supreme Court to consider an appeal from the Fifth Circuit; they don’t have to consider the appeal. In fact, in the vast majority of situations, they refuse to hear a request for an appeal, but you ask them, If they say yes, you have an appeal to them. If they say no, then you’re done.
The state court process is somewhat similar. You have a trial court, and then you appeal from there to a regional court of appeals. We have a regional court of appeals in Dallas, there’s one in Fort Worth, Tyler, Longview, El Paso, Austin, San Antonio, Corpus Christi, two of them in Houston. And then from there, you can try to appeal to the Texas Court of Criminal Appeals in Austin. They’re the highest court for criminal appeals in the state. We have something called the Texas Supreme Court, but they only do civil appeals. Their courtrooms are right across the hall from each other in Austin.
So if you’re appealing from, let’s say, the Dallas Court of Appeals, you have to ask the Court of Criminal Appeals whether they would be willing to hear the appeal or not, similar to the U.S. Supreme Court. The biggest difference is After the Texas Court of Criminal Appeals, you can ask the U.S. Supreme Court to hear an appeal from there. That is going to be pretty rare. And it’s only going to be something that’s possible if the case involves a federal constitutional issue.
So you can ask the United States Supreme Court to hear an appeal after you’ve gone through the Texas process. Like I said, it’s rare that that’ll happen. It has to involve a federal constitutional issue. But as it turns out, some of the most important cases in criminal law, have come from state court cases originally.
For example, the Miranda versus Arizona case, which established the Miranda rights. That started in state court in Arizona. The Terry versus Ohio case that started in the state of Ohio and the U.S. Supreme Court established rules for what happens when the police arrest. Pull you over or stop you. That is now known as a Terry Stop. So those are examples of how even though it doesn’t happen very much, there can be appeals that go through the state court system and then finally end up at the US Supreme Court.
Jennifer Anton | 04:20
Can you tell us a little bit about what the timeline is for the appeals process to work its way through in the federal system versus the state system?
John Helms | 04:30
Sure, the time estimates for the state court system and the federal court system are a little bit different. In both systems, there is not a deadline or a time limit. Where the Court of Appeals has a certain amount of time and then a deadline to write an opinion and decide a case. They don’t have deadlines. They get their opinions out. On their own pace. So in both systems, there’s not a deadline.
In our state court system right now, and it varies. With the different courts of appeal around the state. But I would say it takes about a year to finish an appeal, start to finish, from the trial court to the Court of Appeals.
In the federal system, it tends to take longer. Now again, it depends on which circuit you’re talking about. In the Fifth Circuit, which is Texas, Mississippi, and Louisiana, it tends to run about a year and a half. It tends to take them significantly longer to decide a case than it does in the state court system in Texas.
Jennifer Anton | 05:48
What are some common grounds for appealing criminal cases?
John Helms | 05:53
While some of the common grounds for an appealing in criminal cases include evidence issues. That can be if the trial judge allowed the jury to hear some evidence. That arguably the judge should not have allowed or If the defense during the trial is trying to introduce some evidence and the judge does not allow that, and you argue that those types of decisions are errors under the rules of evidence.
Another type is jury instruction errors. During a trial, the judge is going to instruct the jury on what the law is that applies to the trial. And there are times when judges will instruct the jury incorrectly on the law. And so if you identify an instruction that the judge gave that’s incorrect. You can appeal that. Another common appeal issue is the sufficiency of the evidence. To support the criminal conviction.
Now, it’s important to keep in mind, when you’re appealing and arguing that the evidence is not sufficient, you’re not asking the court of appeals whether they think the person is guilty or not. That’s not an issue they decide. What they will look at is whether the evidence considered in the light most favorable to the conviction is enough so that any rational jury could find the person guilty. And if it is, they’ll say the evidence is sufficient. Whether the Court of Appeals judges agree with the verdict or not because they don’t decide whether they agree with it. They look at that legal sufficiency standard that I just mentioned. So those are some of the most common types of appeal issues, but there are lots of them.
Jennifer Anton | 07:58
How does the appeals process deal with the issue of insufficient evidence?
John Helms | 08:05
The appeals process deals with the issue of insufficient evidence. By looking at first of all, looking at the evidence in the light most favorable to the verdict. What that means is on appeal the Court of Appeals is going to say, If there are credibility issues where a witness might be credible. Might not be credible, we’re going to assume that the witness was credible.
So you can’t really appeal based on the idea that a witness was not believable. On appeal, it’s going to be assumed that the witness was believable. So you look at the evidence in the light most favorable to the verdict, and then you ask, looked at it in that way, could any rational jury conclude that the person is guilty beyond a reasonable doubt. And so that’s the way they look at it. The Court of Appeals is not going to ask, do we think the person is guilty or not? Do we agree with the jury’s verdict or not? They are asking whether essentially anyone. Could rationally agree with the jury. And… Looking at the evidence in the light most favorable to the verdict.
So that’s not a second opinion on guilt. That’s the way the law treats insufficiency of the evidence.
Jennifer Anton | 09:33
Can you tell us a little bit about what an appellate brief is? And how it’s structured.
John Helms | 09:40
Well, an appellate brief is a written argument. It is really the heart of an appeal. And it’s different from the notice of appeal, which is something that you have to file. Soon after the verdict. That’s just a one-page piece of paper saying I’m intending to appeal.
The brief sets out all of your arguments and it sets out the arguments. One by one, the number of arguments, which we call points of error. And the brief is going to say, here are the reasons why there was some type of error at the trial court that the Court of Appeals needs to correct.
When you file your appellant’s brief, the appellant is the party that’s appealing. When you file that has to contain all of the arguments you’re going to make for the whole rest of the appeals process. So you have to make sure it’s included in that brief. After you do that, the state is going to file a brief, which is a written argument responding to your brief.
And then you get to file what’s called a reply brief. Can’t add new arguments, but it can respond to what the state says about the arguments you’ve already made. And that is really the heart of an appeal. That’s where all the arguments are. That’s where the cases that you cite as authority are. An appeal is not really so much an exercise in oral advocacy. It’s an exercise in written advocacy and the brief is where that really is.
Jennifer Anton | 11:26
You touched on this a little bit in your last answer, but can you tell us a little bit more about whether new evidence can be brought up raised in an appeal?
John Helms | 11:36
Well, the answer is that new evidence cannot be raised in an appeal. In an appeal you are limited to arguing about what happened in the trial court. And that is set out in what we call the record. The record of what happened in the trial court is going to be the transcripts of the trial. During a trial, there’s a court reporter and the court reporter is taking down everything that anyone said and the court reporter is going to turn that into what looks like a book. And it literally has everything that anyone said in it.
So that’s the transcript of the trial. Then you have the clerk’s office record, which is anything that was filed in the case. That’s the record on appeal. And you have to make your arguments based on what happened that’s in the record on appeal. You cannot add any new evidence. There is no testimony in an appeal. It’s all contained in the record on appeal.
Jennifer Anton | 12:40
With an appeal, what types of successful outcomes would you be looking for and can there be?
John Helms | 12:48
There are different types of successful outcomes. One type of successful outcome is if the Court of Appeals reverses the conviction and tells the trial court to enter a judgment saying that the person is not guilty. That’s the best outcome. That can happen. If the Court of Appeals decides that the evidence during the trial was not sufficient. Because of the double jeopardy clause in the US Constitution, If the state tries a case and their evidence is not enough. They don’t get another shot at it. That’s double jeopardy.
So in that situation, the Court of Appeals says enter a judgment of not guilty. Another type of result is that the court of appeals sends the case back for a new trial. That can happen. For example, if there are issues with evidence, like the court of appeals decides that the trial judge allowed the jury to hear some evidence they shouldn’t have heard. Or if the trial judge does not allow the defendant to put on some evidence, that the appeals court thinks they should have been able to put on. Also, in a jury instruction situation, if the judge gives the jury an incorrect instruction, in all of those cases, the Court of Appeals will send the case back to the trial court. And they will say, you have to have a new trial and this time in the new trial, don’t allow that evidence in or allow that evidence in or instruct the jury correctly. On this particular issue. So sending the case back for a new trial is a second type of result.
The third type of result is sending the case back for a new sentencing hearing. So there can be situations where maybe the Court of Appeals doesn’t think there was anything wrong. With the guilt innocence phase of the trial. But maybe during the sentencing part, there was some sort of error. So in that situation, the Court of Appeals is not going to say, try the whole case over again. They’re going to say we’re going to let the conviction stand the person is still going to be guilty. But we have to redo the sentencing hearing. So they send it back for a new sentencing hearing. So those are the three main types of results that you can get on appeal.
Jennifer Anton | 15:23
Is there a difference in the standard of review that a federal appeals court uses and a state appeals court uses?
John Helms | 15:35
There really is not a difference in the standard of review used by state courts and federal courts. And let me just explain what standard of review means.
An appeals court is not a place where to ask for a second opinion. They don’t give second opinions. They don’t tell you what they think should have happened. Instead, the law tells them that they have to look for certain things before they can overturn a conviction or send the case back for a new trial. And those are typically legal errors that happened in the trial court. And so the standard of review tells them, when we are reviewing a certain type of ruling, by a trial court. This is what we look for.
For example, if they are reviewing a trial court’s ruling on whether certain evidence should be allowed to come in and for the jury to hear it. The standard of review for that is what’s called an abuse of discretion. And they will say that the trial court has some level of discretion, when deciding whether to allow evidence in front of the jury or not. And it’s only an error, a legal error, if the trial court abuses its discretion. So that’s one type of standard of review.
Another type is when you’re looking at the sufficiency of the evidence. You look at the evidence in the light most favorable to the verdict, and you look at whether any rational jury could come to that conclusion that this jury did. And that’s how they’re reviewing the sufficiency of the evidence. So that’s what those mean. But the answer to your question is there’s really not any significant difference between the standards of review that federal courts and state courts use.
Jennifer Anton | 17:31
Can you tell us a little bit about the term harmless error and what that means in the appeals process?
John Helms | 17:38
Sure. The term harmless error is an important part of the appeals process. What it means is, If there was an error in the trial court, It has to be meaningful enough to justify the Court of Appeals taking some action. If it was just a technical error, or if it was an error that in the scheme of things in the trial could never have really affected the outcome of the trial, then it can be what is called harmless error. It’s error, but it wasn’t harmful enough. To cause a reversal of the case.
So in addition to showing that there was an error, you’ll generally have to show the Court of Appeals why it was not harmless error. You’ll have to argue to them, why it could have made a difference in the trial, why it wasn’t just some minor aspect that just wasn’t important. You want to convince them that it was significant enough to justify some sort of relief that the Court of Appeals can give.
Jennifer Anton | 18:43
Tell us a little bit about how an appeals court handles the issue of ineffective assistance of counsel.
John Helms | 18:51
Well, First of all, in general. You raise ineffective assistance of counsel, not on an appeal, but in what’s called a writ of habeas corpus. The reason for that is because in order to show that counsel was ineffective, you typically have to have evidence that is not in the trial court record.
For example, let’s say you asked your trial lawyer to contact a potential alibi witness, and the trial lawyer didn’t do it. And that alibi witness would have said, that you are not anywhere near the scene of the crime. There’s not going to be anything in the trial court record about how you and your lawyer talked about this possible alibi witness, and there’s not going to be anything in the trial record about how the lawyer didn’t try and find that person or what that person’s going to say. You have to introduce that separately and you can’t introduce evidence and new evidence on an appeal. But there is a process called habeas corpus where you can do that. That has to be after you’ve finished all of your direct appeals. But to answer your question about what ineffective assistance is. The United States Constitution says that everyone has the right to counsel when they are being accused of a crime. The United States Supreme Court has said that the right to counsel is not meaningful if the lawyer is basically so bad that it’s like you didn’t have a lawyer at all.
So the Supreme Court has said, that you have the right to a lawyer that is minimally competent. You don’t have the right to Perry Mason. But you have the right to a lawyer that’s minimally competent. If your lawyer does not meet that standard, you then have to show that the result probably would have been different. If the lawyer had met that standard.
So ineffective assistance of counsel is a US constitutional issue coming from the right to counsel, and it’s usually raised in a petition for a writ of habeas corpus.
Jennifer Anton | 21:16
What are the chances of the appellate court overturning a jury’s verdict?
John Helms | 21:23
The chances of an appeals court overturning a jury’s verdict just in terms of odds are not good. Most, in most appeals, the courts of appeal do not overturn a jury verdict. So the odds are not in your favor. But what that means is, You need to have a really good appellate lawyer who knows what they’re doing to overcome those odds. You can win appeals. That definitely happens. But… It’s not something that happens in most appeals.
So your choice of an appeals lawyer who knows what they’re doing, who can find the issues that matter and argue them persuasively in a written brief. Those are the things that really matter for you if you’re appealing.
Jennifer Anton | 22:16
What is an en banc review in the federal court system and how does that work?
John Helms | 22:22
So, En banc is a Latin phrase that just means that it’s being considered by the whole court at one time. So in each of the federal appeals courts, they have a certain number of judges that make up the entire court. So maybe there’s 20 judges or 30 judges or in the Ninth Circuit out on the West Coast, you know, 50 or something.
When the Court of Appeals decides your appeal. There will be a panel of three of those judges that will decide the appeal. And. Those three judges will review the briefs. If there’s oral argument, they’ll participate in that. And then they’ll issue an opinion. That’s either going to be a three to zero or two to one decision. And then that’s the end of that appeal process.
There are some situations, though, where you can ask the entire court, all 20 judges, let’s say, that’s the number of judges on the Court of Appeals. All of those charges. To review your case. And that normally will only happen in cases where there is some sort of important legal issue. It’s not really a way to get another opinion or a second bite at the apple from the Court of Appeals.
It’s useful when there’s a difficult but important legal issue that’s important enough to take up the time of all the judges on the court. In that situation, you can ask for in-bank review. And if they grant it, then all those judges will participate in the appeal, and all of those judges will participate in the oral argument, and all of those judges will be involved in either writing or signing off on a majority opinion or writing or signing off on dissents.
So. It’s… Another possibility to get a better result, but it’s really only something that applies in some limited circumstances. It’s not just a way to get a second opinion from what your panel did.
Jennifer Anton | 24:49
We talked a little bit earlier of the Texas Court of Criminal Appeals. Tell us what factors they consider in whether or not to hear to consider an appeal.
John Helms | 25:01
The Texas Court of Criminal Appeals is the highest criminal court in our state court system in Texas. And they only consider appeals that they decide they want to hear.
So they are getting written requests all the time to hear, to review what a lower appeals court did. The kinds of things that they look for include: Is there an issue, a legal issue where the Court of Appeals interpreted the law one way that maybe is not the way the law should be? And so they need to straighten that out. They need to be able to tell all the courts around the state, this is the way the law should be.
Another example is, if the Court of Appeals opinion is in conflict with another opinion from a different court of appeals. So, for example, let’s say the Dallas Court of Appeals decides that a law means one thing. And The San Antonio Court of Appeals has said that the same law means something else. So now we have a conflict on what the law is between two courts of appeal. So the Court of Criminal Appeals, which governs all of the courts in Texas, they may need to step in. And resolve that conflict so that all the courts of appeal know what the law really is.
Another situation where they might step in is if there has been what appears to be an obvious miscarriage of justice by the Court of Appeals. And by that I mean, not that a sentence was too long or something like that, but that there was some sort of error. And the trial court. That the Court of Appeals glossed over, didn’t consider carefully and misapplied the law, something like that. So if the court of appeals clearly misapplied the law, the court of criminal appeals may be willing sometimes to step in and say, you just got that completely wrong. And go back and look at it again. Here’s the way the law actually works. So those are typical situations where the Court of Criminal Appeals might be interested in hearing an appeal.
Jennifer Anton | 27:33
You also talked about the term habeas corpus. How does the federal habeas corpus study – Relief. Interact with state court cases.
John Helms | 27:46
Well, First of all, habeas corpus, is a remedy that you can use if you are being held in custody in violation of your constitutional rights. Habeas corpus is a remedy that you can use after you’ve exhausted your appeals. If you were convicted from a state court in Texas. You first. use the state. Habeas corpus. Process.
You first have to go to state court and try to get some sort of relief through the state habeas corpus process. If you cannot get any relief, from the state court process. Then you can try to go to the federal system and ask a federal judge. To give you relief because your federal constitutional rights are being violated. But you can only do that after you’ve gone to the state courts, and you can only do that based on issues you’ve presented to the state courts. And the federal courts are going to look at the issues you raise narrowly. They are going to look at whether the state court gave you an adequate opportunity to make your arguments and whether the state court did something so obviously wrong that they need to step in.
So federal habeas corpus is a possibility, but they look at reviewing state habeas corpus proceedings narrowly. Now, if you have a federal conviction, if you’re convicted in a federal court, after you go through your federal appeals, then you can try a habeas corpus petition in a federal court. You can’t go to state court for that if you were convicted in a federal case. You just do it in federal court. And it’s the same type of review. You have to show that you’re being held in custody in violation of your constitutional rights. So those are the main differences.
Jennifer Anton | 29:56
What are the implications of waiving the right to appeal? During a plea pardon.
John Helms | 30:04
Waiving your right to appeal as part of a plea bargain. Is very common in both state and federal courts. So maybe a lot of people don’t necessarily recognize this, but if you plead guilty, you still have the right to appeal. That doesn’t mean you’re going to win. You probably will not if you pleaded guilty, but you have the right to appeal.
Now, in our state court system, we normally have plea bargaining where there is an agreed sentence. Where the defendant and the state prosecutor agree that if the person pleads guilty, this is going to be the sentence they get. And In state court, State judges will almost always agree to that and accept the plea bargain.
So in state court, when you’re giving up your right to appeal, you’re not giving up as much necessarily because you’ve already agreed that you’re guilty and you’ve already agreed to what your sentence is going to be. So, there’s probably not going to be much to appeal in general. There are some exceptions, but they’re pretty rare. In the federal system, it’s a little bit different. Because in the federal system, Only the judge can decide what your sentence will be. And there’s not as much plea bargaining with an agreed sentence. As there is in state court. What that means is there’s a guilty plea, but the judge is still going to decide what your sentence is, and you haven’t agreed on it in advance.
In that situation, you may have a lot more potential for the judge to make a mistake or commit an error or something like that during the sentencing hearing. And so when you give up your right to appeal as part of the plea bargaining process, you’re giving up a more valuable right and you don’t know what the outcome of the sentencing is going to be. You don’t know what your sentence will be, and you don’t know whether the judge is going to make errors.
So in federal court, The standard plea agreements that people will be offered will include waiving the right to appeal. You need to make sure that if you’re waiving your right to appeal in federal court, that you are getting some additional benefit. That justifies giving up your right to appeal, whether that is the government is agreeing to dismiss some charges that might have been more serious or something like that. You need to make sure you’re getting a benefit. You shouldn’t just waive your right to appeal because it’s part of the standard plea agreement. And sometimes lawyers end up doing that, but you have to be careful because sometimes there can be more issues to appeal in the federal system, even though you’ve pleaded guilty, compared to the state system, where you’ve agreed not only that you’re guilty, but you’ve agreed on the sentence.
Jennifer Anton | 33:18
How do procedural defaults impact the ability to raise issues on a people?
John Helms | 33:24
Procedural defaults. Can significantly limit your ability to raise issues on appeal. A procedural default can be different types of things. One is that the trial lawyer did not object to something at the trial court during the trial.
So for example, let’s say the state wants to have a witness testify about some incident in your past and your lawyer thinks that they shouldn’t be allowed to let the jury hear about that, but doesn’t say anything. In that situation, if the lawyer doesn’t make an objection, we say that they’ve waived their objection or that they have not preserved error. You have to make an objection at the time the evidence is being offered. And if you don’t, you all but lose the right to raise it on appeal. You can raise it, but it has to be what is called plain error. Where it should have been just blatantly obvious to anyone with a law degree. There’s no way this should have come into evidence. That’s a very hard standard to meet. And so you lose the ability to get up a typical standard of review by not objecting, that’s one type of procedural default, failing to object to something on time. Another type of procedural default is If your trial lawyer or your appeals lawyer… Doesn’t file a notice of appeal, within the time limit that they have, which is 30 days in state court. From the day of the judgment, 20 days in federal court from the date of the judgment. If you don’t file that notice of appeal on time, within that time period, you may not be able to appeal at all. There are some ways to try to get around that in some situations.
I’ve had a case recently where I represented someone on an appeal And he thought his trial lawyer was going to file a notice of appeal. And the trial lawyer basically forgot to do it. And so a writ of habeas corpus was filed. Saying that this person was denied their right to counsel because their trial lawyer Committed ineffective assistance of counsel by failing to file a notice of appeal on time, which is an obvious thing that any competent lawyer would know to do. And it turns out the Court of Criminal Appeal said we agree. And we’re going to reinstate your right to file a notice of appeal and to appeal.
That took a long time to go to the Court of Criminal Appeals for that and to get that ruling. They’re: That’s a situation where it was justified, but there are situations where maybe you didn’t tell, you didn’t, you know, your lawyer says, we need to file a notice of appeal. You tell your lawyer, I’m going to hire someone else. You don’t have to do it. And you don’t hire someone else until it’s too late, and the notice of appeal doesn’t get filed, well, that’s more your fault. And so in that situation, maybe the Court of Criminal Appeals in state court or Fifth Circuit and federal court, maybe they wouldn’t allow you to appeal because your notice of appeals is too late and you don’t have a good excuse for why it wasn’t done.
So those are procedural defaults. Those are some of them. And they can be very harmful to your interests on appeal. You have to make sure that they don’t happen as best you can.
Jennifer Anton | 37:14
What is the role of an oral argument during the appeals process?
John Helms | 37:19
An oral argument is a short, almost like a discussion between the judges of the Court of Appeals and the lawyer representing the defendant and the state or federal government in the federal system.
It is not like a trial. And it is not like a jury argument where you’re trying to be emotional and you’re trying to, you know, pull at the heartstrings of the judges. That doesn’t happen. It doesn’t work in appeals. What an oral argument is for is after you’ve written your written argument, which is in the briefs that you filed.
Sometimes the record on appeal, the transcript, of the trial may be so long and the issue is so complicated, that the judges on the Court of Appeal want to ask questions of the lawyers. About what happened in the trial on this. What evidence was there about these issues? Or maybe the judges want to ask questions about the cases that you’ve cited for what the law is. They want to ask you about how do you distinguish one case from another.
So in those situations where the Court of Appeals thinks that they might benefit from being able to ask the lawyers about the arguments that have already been made, they may grant oral arguments. So you can’t raise new issues in an oral argument. You’re limited to what you put in your briefs. And normally they’ll last about 30 minutes. Where each side gets about 15 minutes. And it generally consists of the judges asking the lawyers questions and then the lawyers responding to the questions. So it’s much more academic. Then a trial. It’s lawyers talking to lawyers about lawyer stuff. It’s basically how I would describe it.
Jennifer Anton | 39:21
As a criminal defense attorney, how do you address the issue, or how does any criminal defense attorney address the issue of prosecutorial misconduct?
John Helms | 39:32
Well. Prosecutorial misconduct. Is something that occasionally happens. And when you’re appealing and you’re raising an issue of prosecutorial misconduct, the first thing you have to do We have to identify what the misconduct was and be able to explain why it was wrong. I mean, a classic one would be if a defendant in a case does not testify during their trial, and a prosecutor and their closing argument makes some sort of a comment. About the defendant not testifying, like If he was really… Innocent, he would have testified. I mean, that’s so blatant that no one would actually do it anymore. But it could be something like, we’ve only heard from the victim. We didn’t hear from the defendant about his side of the story. You are not allowed to make any type of comment on a defendant’s failure to testify because they have a Fifth Amendment right under the US Constitution. Not to have to testify and that right includes preventing the government or the state for making any comments on it. That would undercut your right not to have to testify. If something like that happens, it’s going to be in the trial court record where they said that in their closing argument. And you’re going to point that out and you’re going to have to show the Court of Appeals why that is improper? And then you’re going to have to convince the Court of Appeals that it’s so bad, that it justifies taking some action.
Now. If something like that happens, during a trial. Normally, the defense lawyer is going to have to object to it. And you’re going to object to it and the judge is going to sustain the objection. And say that’s not proper, then the defense lawyer is supposed to ask the judge to tell the jury to disregard what the prosecutor just said. And the judge will do that. And then the defense lawyer is supposed to move for a mistrial. Where the defense lawyer is telling the judge, this is so bad, you need to end the trial now, and we need to start over with a new trial.
If the defense lawyer doesn’t follow those steps, then the error is, can be waived. So the defense lawyer has to follow those steps. If the judge instructs the jury to disregard whatever the prosecutor did or said, then in some situations, a court of appeals will say, that is enough. To cure the harm of the prosecutor’s misconduct because the jury is being told not to consider it.
Well, I mean, I think we all know that if something like that happens in a trial, it’s probably just going to draw the jury’s attention to it. So it’s kind of a fiction that the law uses that instructing them in that way is going to cure the problem. In some ways, it might make it worse. So the court of appeals is going to have to consider, was it so bad? It just infects the fairness of the trial so badly that even an instruction to disregard it is not enough to cure the harm. And again, you’re going to have to persuade them as an appeals lawyer, you have to persuade the court of appeals that it was that bad. And then if it was, then they will send it back for a new trial.
Jennifer Anton | 43:21
What are the potential consequences of an appeal that gets denied? Are there any options that remain after that?
John Helms | 43:31
Well. If an appeal is denied, meaning you appeal in the court of appeals, rejects all of your arguments. In both the state court system in Texas and in the federal court system, you can ask a higher court to review what the Court of Appeals did.
So in Texas, we asked the Court of Criminal Appeals in Austin, which is our highest state court for criminal cases, we can ask them to review the decision of the Court of Appeals. It’s up to them to decide whether they want to do that or not. We do that by filing what’s called a petition for discretionary review. It’s a petition because we’re asking them to do something. We’re asking them to review what the Court of Appeals did, and its discretionary review because the Court of Criminal Appeals can decide they’re not interested. It’s up to their discretion to decide whether to hear the appeal at all.
So you try to persuade them that it’s something that is of interest to them and they should want to hear the appeal. And if you do that and they grant the appeal, then you have another appeal to them.
Similarly, in the federal court system, if you lose at the circuit court level, you can ask the United States Supreme Court to review the case. And we call that a petition for a writ of certiorari. Or a cert petition. And it’s the same idea. The US Supreme Court does not have to review any typical criminal cases. I mean there’s very few types of cases where you get automatic review but criminal cases almost never fall into that category. So it’s up to them to decide whether they want to hear the appeal or not. And so you write a petition for a writ of certiorari to them. And a writ of certiorari is the name of the decision to grant an appeal, essentially. So you’re asking them to grant an appeal. If they do, then you have an appeal to them. If you don’t, And that’s going to be the end of the line.
Jennifer Anton | 45:46
This is an issue I’d like to get a little more of your insight on. The jury and their verdict. I mean, sorry, the jury and the instructions that the court gives to the jury. Can you talk to us a little bit about how the appellate process addresses issues related to jury instructions and the errors that might be in those instructions?
John Helms | 46:09
Well, first of all, jury instructions are when the judge in a trial tells the jury, here’s the law that you need to follow when you’re deciding whether this person is guilty or not guilty.
For example, In order to find the person guilty, you have to find that the person, number one, possessed a controlled substance. Number two, while possessing it, intended to distribute it to someone else. So that would be for possession of an illegal drug with intent to distribute it. So they tell them, the judge tells the jury, you have to find those two things, and you have to find that they knowingly possessed the drug. So that’s number three. And each of those things have to be proven beyond a reasonable doubt.
So that’s an example of instructions that a judge might give to a jury. Sometimes a judge may give an instruction that’s incorrect. For example, in what I just mentioned, If the judge just says possession, and intent to distribute but doesn’t include that it was knowingly possessed, then that’s going to be an error. That’s where an appellate lawyer, an appeals lawyer, is going to point out to the appeals court that.. The trial judge gave this instruction, and that’s going to be in the record on appeal. It’ll be in the transcript. Gave this instruction, under the law that instruction is incorrect. And therefore, it should be sent back for a new trial.
Now, you are going to have to show that during the trial the defense lawyer objected to that instruction and typically ask for a correct instruction, but at least objected to it. If the defense lawyer said nothing about it, you’re going to have a very hard time winning on appeal. It’s going to have to be essentially what we call plain error, where it was just blatantly obvious to everyone that there was a problem with the instruction. That’s very hard to show.
So you’re going to have to show that the defense lawyer objected to it. There also can be other instructions that the judge may have given the jury that might have sort of fixed the problem. For example, in a drug possession case. Let’s say that when the judge is listing the things that have to be found, judge says possession and intent to distribute, but doesn’t say they have to know that they’re possessing the drugs. But let’s say, that there’s another part of the instructions, where the judge is telling the jury what we call the application paragraph. The judge is applying the law to this case and the judge says, “So, in order to find this defendant guilty, you must find beyond a reasonable doubt that on or about this day, defendant Joe Smith, knowingly possessed, cocaine and intended to distribute it.
So in that application paragraph, they brought back in the concept of knowingly. So, that makes it harder, but basically you’re trying to show that the issue with the instruction was bad enough so that the jury could have been misled, and therefore you should send it back for a new trial.
Jennifer Anton | 49:45
Well, John Helms, thank you for this informative information about the criminal appeals process. And how the law works in Texas. Again, this is John Helms, Dallas criminal defense attorney, premier, decades-long practicing in Texas. And we appreciate your time.
John Helms | 50:05
Well, thanks very much for having me. It was my pleasure.