Can I Be Punished Worse if I Appeal My Case?

December 20, 2016

By Texas Criminal Defense Lawyer Jeremy Rosenthal

http://www.rosenthalwadas.com

(972) 369-0577

That isn’t supposed to happen.  It can only happen where there is evidence of misconduct AFTER the case has been appealed.

Public Policy

Think about it.  We want people to appeal cases.  Appealing trials and other rulings (in theory) promotes uniformity of proceedings, sharpens sometimes fuzzy rules, and corrects injustices.  Punishing people for appealing is contrary to betterment of the legal system so it is rightly shunned.

Won’t the Judge or Prosecutor Get Mad?

Possibly.  Everyone in America gets their paper graded.  Appellate Judges grade the trial Judge’s paper and correct them when they’re wrong.  No one likes being told they are wrong and Judges are certainly no exception.  Prosecutors might not like an appeal either because it means more work and in many instances they are being blamed for a trial not being fair.  But you can’t be afraid to hurt feelings and/or making people do their job when your livelihood is at stake.

Can the Judge or Prosecutor Retaliate Against Me for Appealing?

They can try.  When you appeal a case, however, the case goes to a different set of higher judges.  The case is out of the trial judge’s hands.  There is very little the trial judge can do unless the case is reversed and sent back… in which event you won.

If the case is reversed then there is clear guidance from the U.S. Supreme Court and the Texas Appeals Courts that the Judge cannot vindictively retaliate against someone because they were reversed on appeal.  See North Carolina v. Pearce, 395 U.S. 711 (1969) and Johnson v. State, 900 S.W.2d 475 (Tex.App. — Beaumont, 1995).

I’ve heard a prosecutor or two tauntingly invite an appeal so they can get an even higher punishment than was originally assessed over the years.  This just tells me they have never cracked a book to look at the rule.

Some judges will try to strong-arm a defendant out of an appeal through an aggressive appellate bond which has either a high dollar amount or onerous conditions.  This is a bond which suspends the imposition of a sentence while an appeal is pending… the bond DOES NOT have to be paid to appeal the case, however.  The bond only needs to be paid if the Defendant is seeking a delay in the imposition of the sentence.

Appealing a case is an important decision.  Don’t factor stiffer punishment or angering anyone in making your decision, however.

*Jeremy Rosenthal is Board Certified in Criminal Law in the State of Texas and is licensed to practice in the State of Texas.  Nothing in this article should be considered legal advice.  For advice about any situation you should contact an attorney directly.

 


Texas Criminal Appeal Deadlines Chart

June 3, 2016

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Here are some basic deadlines for filing criminal appeals in Texas.  As always, please refer to the Texas Rules of Appellate Procedure to resolve any questions.

Basic Appeal of a Final Judgement:

Without Motion for new trial, motion to modify, motion to reinstate, or request for findings of fact and conclusions of law filed:

Notice of appeal:  30 days (filed with the trial court)

Designation of clerk’s record:  30 days (filed with the trial court)

Designation of reporter’s record:  30 days (filed with the trial court with copy to reporter)

With Motion for new trial, motion to modify, motion to reinstate, or request for findings of fact and conclusions of law filed:

Post Judgment Motions: Due 30 days from Judgment (filed with Trial Court)

Request for Findings of Fact and Conclusions of Law:  Due 20 days (filed with Trial Court)

Notice of Appeal:  90 days (filed with Trial Court)

Designation of Clerk’s Record:  90 days (filed with trial court)

Designation of Reporter’s Record: 90 days (filed with Trial Court with Copy to Court Reporter)

All Basic Criminal Appeals Regardless of Motions Filed:

Appellant Brief (Defendant):  Due 30 days from the completion of the record

Appellee Brief (State):  Due 30 days after the Appellant’s brief submitted

Appellant reply Brief:  Due 20 days after Appellee brief submitted

Motion for rehearing:  Due 15 days after disposition

Petition for Discretionary Review:  Last ruling of Court of Appeals +30 days (filed with Court of Criminal Appeals).

 

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  He is Board Certified in Criminal Law.  Nothing in this article is considered to be legal advice.  For legal advice about any situation contact a lawyer directly.

 


Handling Appeals Statewide

June 3, 2016

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Our office is in McKinney, Texas, but with the advent of efiling throughout the State of Texas, any lawyer can handle an appeal in any part of the State.

Efiling is a system where legal documents, pleadings and briefs of both the prosecutor and the defense can be submitted online.  Efiling is now available in all 254 counties in the State of Texas. Additionally we can review the record of any trial or legal proceeding because those transcripts can be emailed to us.

We can handle an appeal in any area of the state regardless of the cases length or complexity.  This allows us to help for cases where you might not be able to find an attorney willing to help you depending on where in Texas a  criminal trial was held.

Do We Need to Come To Where the Trial Was?

We may need to make a trip or two to the county where the trial was.  This could be to investigate certain facts of the case which may have been over-looked, or for brief hearings or to meet with essential parties.  We will need to come to the Court of Appeals in your district if the case is granted Oral Argument before the appeals court.

Why Rosenthal & Wadas for a Criminal Appeal?

We are a large Criminal Defense firm and there aren’t many firms like us around.  We have the resources to use a collaborative effort to have multiple lawyers assist on an appeal and we have more Board Certified Lawyers than any other Criminal Defense firm in Collin County.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas and is Board Certified in Criminal Law.  Nothing in this article is intended to be legal advice.  For advice about any case you should contact an attorney directly.

 


Shock Probation — Converting a Prison Sentence to Probation

October 15, 2015

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

“Shock Probation” allows a trial judge to convert a prison sentence into probation.  This can be after a plea bargain, a bench trial, or a jury trial where the Defendant is sentenced to prison.

Texas Code of Criminal Procedure Section 42.12(6)(a) allows the trial court to retain jurisdiction “for 180 days from the date the execution of the sentence actually begins” and the judge can place the defendant on probation if the defendant is otherwise eligible.  These do not apply to State Jail Felonies, however, other probation programs apply to those charges.

In other words, the defendant must still (1) be sentenced to less than 10 years of prison and (2) not have been convicted of a felony in this state or any other State.  The Judge cannot grant shock probation where the Judge couldn’t otherwise — meaning “3(g) offenses” such as murder, aggravated robbery, aggravated assault, aggravated sexual assault of a child, indecency with a child, or injury to a child to name just a few.

So here is how it works… after someone is sentenced (for example after a jury trial), the lawyer files a motion for shock probation under 42.12(6)(a).  The judge can deny the motion without a hearing but cannot grant the motion without a hearing.  The Judge must grant the request within 180 days of the date the execution of the sentence actually beings or it would be over-ruled as a matter of law.

Shock probation and an appeal are not mutually exclusive and both can be done.

A motion for shock probation is a great “second bite at the apple” and should be considered where a trial or plea bargain went wrong.

*Jeremy Rosenthal is an attorney licensed in the State of Texas.  He is board certified in Criminal Law.  Nothing in this article should be considered legal advice.  For legal advice about any situation you should contact an attorney directly.


Your Right to a Speedy Trial

June 20, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Being accused of a crime sucks.

The framer’s of the constitution knew this which is why the U.S. Constitution guarantees our right to a speedy trial in the Sixth Amendment. Texas also guarantees the right to a speedy trial in Texas Code of Criminal Procedure section 1.05.

If the State violates your right to a speedy trial — the Judge can dismiss the case. Your right to a speedy trial exists on any case whether it be DWI, drugs, marijuana possession, assault, theft or other serious felonies.

Speedy trial law can be extremely complicated believe it or not. I’ll avoid they hyper-technical legalese for the sake of easy reading but you should understand in this area there are no real bright-line rules that will get a case dismissed. Rather, a denial of a right to speedy trial is viewed by the judge and the Court of Appeals on a sliding scale which give the trial judge mountains of discretion.

The seminal U.S. Supreme Court case which still serves as the corner-stone for speedy trial law is Barker v. Wingo, 407 U.S. 514 (1971). In that case, the Supreme Court laid out four general factors as part of the court’s analysis of whether denial of the right to a speedy trial was violated. Those factors include (but aren’t limited to), (1) the length of the delay; (2) the reason for the delay; (3) defendant’s assertion of their right to a speedy trial; and (4) the prejudice to the defendant.

Speedy trial issues usually arise in cases where the judge or the prosecution have continually put a case off for whatever reason — usually either witness problems or a jammed docket. Sometimes they arise where the police made an arrest and the case simply doesn’t get prosecuted over a long period of time for whatever reason (maybe the police lost the police report or some prosecutor dropped the ball).

A speedy trial issue is usually not the first-line of defense in a criminal case. In cases where there the case just never seems ready to go to trial, a good criminal defense lawyer will know how to build a steady record showing the defendant has continually been prepared to try the case and that they have been active in asserting their demand for speedy trial. This will help maximize your chance for a dismissal based on speedy trial violations.

 

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas and is Board Certified in Criminal Law. Nothing in this article is intended to be legal advice. For legal advice about your own specific case you should consult an attorney.

 


When You’re Entitled to a New Trial in Texas

June 12, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Regardless of whether you were convicted of DWI, marijuana or cocaine possession, assault, or any other offense in Texas, you may be able to get a new trial.

There are two main ways to get a new trail in Texas criminal cases. One is through a formal appeal to the courts of appeal (which takes lots of time and patience) and the other way is that the trial judge can grant you a new trial — but only of you act quickly after the conviction!

Texas Rule of Appellate Procedure 21 governs new trials through the trial court. This means the same judge that tried the original case will be the judge that decides whether you get a new trial under this rule. Under TRAP 21.4, you only have 30 days to file a “Motion for New Trial”.  If you file it within the 30 days, you have another 45 days to have the judge give you a hearing to decide whether you actually get another full-blown trial.

Under TRAP 21.3, the judge must grant a new trial where; he has mis-instructed the law to the jury in a way that materially impacts the defendants rights, where the defendant was tried in absentia (other than a class c misdemeanor), or where the verdict is “contrary to the law and the evidence.”

Many of the grounds for new trial involve jury misconduct for TRAP 21.3 as well. The mis-conduct can include; where jurors reached a verdict by lot (or some other unfair means), jurors dis-obeying the courts instructions not to talk about the case with outside people or conducting outside research, or if a juror has been bribed. As a side note, proving juror misconduct is extremely difficult because generally jurors can’t be called to testify about their deliberations in Texas.

TRAP 21.3 also has various other reasons for new trials that are obvious… Where evidence was lost or destroyed… Or where a material defense witness was threatened or intimidated from testifying.

Basically, you must file a motion and have a hearing proving to the judge one of these grounds. the judge can order a whole new trial on guilt or innocence, or just on punishment if appropriate. Obviously the prosecution has the right to oppose your motion.

Sometimes you need to file a motion for new trial with the trial judge for no other reason than to perfect your record for the court of appeals… So even if you think the judge won’t grant your motion, you may still have to file it to do what appeal lawyers call, “preserving error.”

If you’re thinking of appealing a conviction and you still have time — you should consider asking the judge for a new trial with the assistance of an experienced attorney.

*Jeremy Rosenthal is an attorney licensed to practice law in the State of Texas.  He is Certified in Criminal Law by the Texas Board of Legal Specialization.  Nothing in this article should be considered legal advice.  For legal advice about any specific situation you should contact a lawyer directly.

 


Texas Criminal Appeals 101

June 6, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Appealing a conviction in Texas can be difficult, but it’s not impossible.

Criminal trials are extremely complex and if the judge, prosecutor, or even your own lawyer have made mistakes — a conviction can potentially be over-turned by the Texas appeals courts.  While an appeal can often represent a great hope — you should know that statistically the odds are long at having a case overturned.  That being said — convictions are over-turned all the time.

The most important thing to remember with an appeal is time is critical.  Some issues can be appealed months and even years after a conviction — but the vast majority of appeals MUST BE FILED WITHIN 30 DAYS of the judgment under the Texas Rules of Appellate procedure.  Also, sometimes a motion for new trial can be granted and the trial judge can allow a re-trial of the case under some circumstances if you act quickly enough.  Unlike a fine bottle of aged wine — appeals get worse as they get older.

When a conviction is being appealed — what is typically getting called into question are the balls and strikes a judge called at trial.  Sometimes, but rarely, a prosecutor’s conduct or the conduct of your own trial lawyer may be addressed.  Practically never is something the jury did subject of a successful appeal.  The reason is that the judge decides “questions of law” and the jury decides “questions of fact.”

Common grounds for appeals are:

Did the judge allow someone to serve on the jury that shouldn’t have been there?

Did the judge allow the prosecutor to go too far in arguing to the jury?

Did the judge improperly admit evidence the jury should’t have been allowed to see?

Did he not let the accused admit evidence he should have let in?

Did he give the right instructions to the jury?

There are dozens of areas which can be grounds for appeals.  Doing an appeal without a lawyer is extremely difficult.  There are tons of legal tripwires designed to toss out appeals before they even get to be seen by an appeals judge.  Get a lawyer if you’re considering an appeal.

*Jeremy F. Rosenthal is an attorney licensed in the State of Texas.  Nothing in this article should be considered as legal advice nor does it create an attorney-client relationship.  For legal advice about a specific situation, you should consult an attorney directly.