Texas Civil Appeals

Below are published opinions for cases where we were retained on appeal.

  • Alexander v. Kent, 480 S.W.3d 676 (Tex. App.—Fort Worth 2015, no pet.). We were retained to appeal a judgment over a contract for the construction of a car lot. We were able to persuade the court of appeals to vacate the awards of attorney's fees and special damages which comprised the majority of all damages awarded.
  • Smith v. Pena, 321 S.W.3d 755 (Tex. App.—Fort Worth 2010, no pet.). We were retained to appeal the judgment of the trial court which had entered a judgment after a summary proceeding in the context of a mediation. We persuaded the court of appeals to vacate the judgment. 

Texas Criminal Appeals

Below are published opinions for cases where we were retained on appeal.

  • Thomas v. State, 461 S.W.3d 305 (Tex. App.—Fort Worth 2015, no pet.). In this appeal, we sought to reverse our client's conviction based upon a witness's invocation of his Fifth Amendment privileges on cross-examination. The court of appeals ultimately held that our client's defense lawyer was ultimately able to cross-examine the witness on a tax-cheating scheme, any error was harmless. 

A criminal defendant does not enjoy a constitutional right to an appeal of his conviction. Article 44.02 of the Texas Code of Criminal Procedure, however, does authorize a general right to an appeal. Except in death penalty cases, a defendant in a criminal case must file his direct appeal to the appropriate Texas court of appeals. If direct appeal is denied in the court of appeals, the defendant may petition for discretionary review to the Texas Court of Criminal Appeals which has “final appellate and review jurisdiction in criminal cases.” Appeals in capital cases must be taken directly to the Court of Criminal Appeals.

It is critical that a criminal defendant timely preserve issues for appeal in the trial court and properly present them to the appeals court in order to have these issues reviewed at the appellate level. Failure to do so will result in automatic denial of relief on those issues under the rules of appellate procedure.

Following conviction, the first procedural step a defendant should take is to file a motion for a new trial under the guidelines set forth in Rule 30 of the Texas Rules of Appellate Procedure. The motion must be filed prior to or within 30 days after imposition or suspension of sentence, and it must be presented to the court within ten days after its filing. If the court fails to rule on the motion within seventy-five days, it is considered denied as a matter of law.

Rule 30(b) lists nine grounds upon which a motion for new trial may be based:

(1) Except in a misdemeanor case when maximum punishment may be by fine only, where the accused is an individual who has been tried in his absence, unless otherwise authorized by law, or has been denied counsel; (2) Where the court has misdirected the jury as to the law or has committed some other material error calculated to injure the rights of the accused; (3) Where the verdict has been decided by lot or in any other manner than by a fair expression of opinion by the jurors; (4) Where a juror has received a bribe to convict or has been guilty of any other corrupt conduct; (5) Where any material witness of the defendant has by force, threats or fraud been prevented from attending the court, or where any evidence tending to establish the innocence of the accused has been intentionally destroyed or withheld preventing its production at trial; (6) Where new evidence favorable to the accused has been discovered since trial; (7) Where after retiring to deliberate the jury has received other evidence; or where a juror has conversed with any other person in regard to the case; or where a juror became so intoxicated as to render it probable that his verdict was influenced thereby; (8) Where the court finds the jury has engaged in such misconduct that the accused has not received a fair and impartial trial; and (9) Where the verdict is contrary to the law and evidence.

In addition to these nine statutory grounds, the trial court may grant the motion based on either ineffective assistance of counsel or in the “interests of justice.”

An out of time motion for a new trial may also be heard at the appellate level. The rules of appellate procedure allow a court of appeals or the criminal court of appeals to suspend, on motion or sua sponte, any of the rules of appellate procedure. This is a rarely used procedure and will be done by an appeals court only “in the interests of justice” and “judicial economy.”

The third way a defendant may be returned to his pre-sentence status is through a motion in arrest of judgment. This motion will be granted only if the defendant can clearly demonstrate that his conviction was obtained in violation of an applicable law. For example, a defendant must show that the verdict was substantially defective because of an improper indictment or information

If a criminal defendant does not file a motion for new trial or motion in arrest of judgment, he must file a notice of appeal within thirty days after imposition or suspension of sentence (or the date the trial signed an appealable order) in order to invoke the jurisdiction of the court of appeals under Rule 40.2 of the Rules of Appellate Procedure.

If the defendant, however, timely files a motion for new trial, the defendant must file his notice of appeal within ninety days from the imposition or suspension of sentence.