Criminal Appeals and Habeas Corpus

Imagine you have just been convicted of a serious criminal offense. You are going to be put into prison, denied your basic freedoms, taken away from your family and your home for a long period of time. Now imagine that you are innocent.

It’s a frightening prospect, and for some criminal defendants, it’s a reality. You should know that Texas law allows defendants to fight their conviction even after the trial is over. Through procedures like the Motion for New Trial, Appeals, and The Writ of Habeas Corpus, Texas law is designed so that the wrongfully convicted can get the justice they deserve.

Houston Criminal Appeals Attorney

Matt Horak never stops fighting for the rights of criminal defendants. Mr. Horak is experienced and knowledgeable at handling all aspects of post-trial procedure, including appeals. He will review the record of the trial, identify errors made by the trial court, and fight to have those errors corrected. If you or a loved one has been wrongfully convicted of a crime in the Houston area, you should contact Matt Horak immediately at (713) 225-8000 or toll-free at (800) 225-8009.


Criminal Appeals Information Center


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Losing Your Criminal Case

Losing a criminal defense case is one of the most disappointing and frustrating experiences a person can endure. Obviously, if you lose at the guilt/innocence phase of trial, then you will be sentenced and begin serving your sentence. However, you should know that you do not have to accept a finding of guilt by the jury. Even after you are convicted, you have options for overturning that conviction.

One of the first things your attorney might advise you to do is file a Motion for New Trial, which is governed by Texas Rule of Appellate Procedure 21. A motion for new trial must be filed within 30 days of the day you are formally sentenced, and presented to the court at a hearing within 10 days of being filed.

A motion for new trial is filed with the trial court. It is basically the defendant’s way of telling the court that the jury or the court did something wrong and therefore the defendant deserves a new trial. The court may grant a new trial on several grounds, which may or may not apply to your case. These grounds include:

  • The accused was not present for trial
  • The accused was not afforded a right to counsel
  • The verdict was decided improperly by the jury (i.e. by drawing lots, instead of by a majority vote)
  • Juror misconduct (for example, if a juror accepted a bribe)
  • A material witness was prevented from attending trial due to threats, force or fraud
  • Evidence showing the defendant’s innocence was withheld or intentionally destroyed
  • New evidence for the defendant has been discovered since trial
  • After retiring to deliberate, the jury received new evidence not presented at trial
  • A juror talked to someone about the case
  • A juror was intoxicated
  • The verdict is contrary to the law and evidence – although this can be included in a motion for new trial, if the trial judge agrees with you, then you will be acquitted.

Many of these grounds are very difficult to prove. A motion for new trial is not always filed, and generally does not have to be filed in order to preserve an issue for appeal.

If you lose on your motion for new trial, or if a motion for new trial is not filed, an appeal might be your next step in fighting your conviction.


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Double Jeopardy

It is common knowledge that you cannot be tried for the same crime twice. To do so would place the defendant in double jeopardy. That means that if you are acquitted at trial, the prosecution cannot appeal the acquittal, nor can they indict you again for the same crime.

That does not mean that a prosecutor never appeals a decision made by the trial court. The state may appeal in the following situations:

  • The state may appeal some pretrial orders. For example, the state may appeal when the judge dismisses all or part of the indictment; when the judge sustains the defendant’s claim of former jeopardy; or where the court suppresses some of the evidence.
  • The state can also appeal when the judge arrests (suspends) or modifies a judgment; grants a new trial; or the state can appeal a sentence that they believe is illegal.

Your attorney can discuss the situations where the state may appeal with you, as well as help you assess whether the state may legally appeal any part of your criminal trial.


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The Appellate Process

In order to appeal, your attorney must file a Notice of Appeal. The Notice of Appeal is necessary in every case except death penalty cases, which are reviewed automatically by the Court of Criminal Appeals. Under Texas Rule of Appellate Procedure 26, this Notice must be filed in the trial court within 30 days of sentencing, or 90 days if a Motion for New Trial was filed.

After the Notice is filed, then your attorney will prepare and file the clerk’s record and reporter’s record with the court of appeals. The clerk’s record includes the formal documents (such as motions, jury instructions, etc) filed in the trial court. The reporter’s record is the transcript of the trial, as well as all of the exhibits admitted in the trial. These things must be filed between 60 and 120 days of sentencing under Rule 35.2. Your attorney will also prepare and file a brief, which is its argument to the court, within 30 days of filing the record.

A hearing will usually be held at the court of appeals, where your attorney will argue for why your appeal should be granted. If the appeal is not granted, then your attorney has the option of filing for a motion for rehearing within 15 days of the court’s judgment, under Rule 49. Your attorney may also discuss the option of asking the Court of Criminal Appeals to review the decision. The Court of Criminal Appeals has discretion to choose which cases it reviews; just because your attorney files a Petition for Review does not mean the Court of Criminal Appeals will.

Many defendants sentenced to incarceration wonder if they can get bail while their appeal or motion for new trial is pending. Under Texas Code of Criminal Procedure article 44, the answer is yes for many defendants. Unless you have been sentenced to more than 10 years on a felony conviction, you may be able to be released on bail pending appeal. However, if you have been convicted of a felony, the trial court may withhold bail if there is good cause to believe that you would not appear when and if your conviction becomes final, or there is good cause to believe that you will commit other crimes while released.

If you are released on bail, there will likely be conditions on that bail. If you violate those conditions, your bail may be revoked.

The appellate process can be very complicated and time-consuming. If you have been convicted of a crime and wish to appeal, the most important thing you can do is contact an attorney who is experienced in criminal appeals to represent you. Your attorney can carefully review the record of your trial, identify the grounds on which to appeal, and draft an argument to convince the appellate court that you deserve your freedom.


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Habeas Corpus

Literally translated, habeas corpus means “bring forth the body.” Habeas corpus provides convicted defendants a way to attack the conviction one last time, if no appeal is filed or if their appeal is not successful. Habeas Corpus petitions are governed by the Texas Code of Criminal Procedure, article 11.

The grounds for relief in a habeas action are quite limited. You may only attack your conviction on the following grounds:

  • That the defendant was denied a constitutional right.
  • That the trial court did not have jurisdiction over the defendant.

Your attorney can assess your case to determine if any of these grounds might apply to your case.

Generally, a defendant may file only a single habeas application. However, you may be allowed to file a subsequent application if:

  • The claim you are basing the current application on was not available previously or
  • The current application is based on a violation of your federal constitutional rights, and no reasonable juror could have found you guilty if the violation had not occurred.

Habeas Corpus is an exceptional remedy. It is not easy to apply for habeas corpus, and courts are reluctant to grant it. If you or a loved one are incarcerated and did not appeal or were not successful on appeal, you should speak with an experienced attorney about whether applying for the writ of habeas corpus may be an option in your case.


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The Texas Court of Criminal Appeals

Most people think that the Texas Supreme Court has the final say over all appeals in the state, criminal and civil. That is not true. The criminal justice system has its own unique court of last resort, the Court of Criminal Appeals.

The Court of Criminal Appeals reviews all death penalty convictions from all district courts in the state. This review is automatic and you need not go through the lower appellate courts first.

The Court of Criminal Appeals also has the discretion to review all decisions by the lower appellate courts. This review might be triggered by a motion from either of the parties, or the Court can decide to review the case on its own motion. This review is not a matter-of-right; just because you ask the Court to review your case does not mean it will.


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Post Conviction DNA Testing

Some defendants believe that DNA testing may exonerate them, but they were unable to obtain DNA testing in their original case. This is usually because DNA testing was not available, or was available but not reliable, at the time when they were convicted. In some cases, the court will order DNA testing even after a person has been convicted and incarcerated. The rules for filing a motion for DNA testing are found in The Texas Code of Criminal Procedure article 64.

A court is required to order DNA testing if it finds all of the following:

  • The evidence in existence permits DNA testing (for example, blood or hair samples)
  • The evidence was not subjected to DNA testing before, or was DNA tested, but the techniques used have been superseded by more accurate techniques
  • The evidence is in a condition that makes DNA testing possible
  • It can be established that the evidence has not been tampered with or substituted
  • Identity was an underlying issue in the case
  • The convicted person has established that he would not have been convicted if DNA testing had occurred
  • The convicted person is not requesting the DNA testing just to delay the administration of justice.

If you or a loved one have been convicted of a crime and believe that DNA testing would have prevented the conviction, you should contact an attorney immediately to discuss your options.


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Resources for Criminal Appeals

The Court of Criminal Appeals

P.O. Box 12308
Austin, TX 78711
(512) 463- 1551

First Court of Appeals

1307 San Jacinto St #1000
Houston, TX 77002
(713) 655-2700

Fourteenth Court of Appeals

1307 San Jacinto St. #1100
Houston, TX 77002
(713) 655-2800

Innocence Project - A national organization dedicated to exonerating the innocent through DNA testing


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Matt Horak, Attorney at Law - Houston Criminal Appeals Process Lawyer

If you have been convicted of a crime that you did not commit, you should know you are not alone. The Law Offices of Matt Horak represent defendants in Harris and Montgomery Counties, including Houston Texas and the surrounding areas. If you have been convicted of a crime and have questions about appealing your conviction, contact Matt Horak today (713) 225-8000 or toll-free at (800) 225-8009. Mr. Horak will listen to your side of the story, review the record, and help you understand your options for having your conviction overturned.

Texas Criminal Defense Attorney
Principal Office
Harris County Texas
Matt Horak, Attorney at Law, PLLC
4119 Montrose Blvd. Suite 200
Houston, TX 77006
Secondary Office
Montgomery County Texas
Matt Horak, Attorney at Law, PLLC 1790 Hughes Landing Blvd #400
The Woodlands, TX 77380
(office visits by appointment only)
Matt Horak Attorney At Law, PLLC - Houston Criminal Defense
Houston: 713-225-8000
The Woodlands: 281-907-4990
Fax: 713-521-1845

This website is sponsored by Matt Horak. Principal office located at 4119 Montrose Blvd. Suite 200, Houston, Texas 77006. Information provided on this website is for general purposes only and should not be interpreted as legal advice for any situation. Legal advice can only be given after an official attorney-client relationship has been formally agreed upon with the defense lawyer.

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