Appeals & Expungement

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Appeals of Criminal Cases in State and Federal Court: Post-Conviction Remedies

Being arrested isn’t the end of a criminal case, and a conviction in a trial court doesn’t end a criminal case, either. Trial court decisions (both jury verdicts and rulings by a judge) are subject to review by higher courts: appeals courts in both the state and federal systems exist to double check trials and courtroom results to find injustice and correct errors.

Michael Lowe is an experienced criminal appeals lawyer, with years of experience representing clients in criminal appeals, requests for writs of habeas corpus, and motions for a new trial throughout the state and federal appellate courts. Mr. Lowe appeals convictions and seeking post-conviction relief in the following courts:

1. Criminal Federal Appeals Lawyer

From convictions in any federal district court in the State of Texas, and especially in convictions coming out of the Eastern District of Texas and the Northern District of Texas (those two districts closest to the Dallas-Fort Worth Metroplex), as well as state cases where federal rights are at issue (federal constitutional issues, civil rights matters, etc.) Michael Lowe acts as appellate counsel before the United States Court of Appeals for the Fifth Circuit and if necessary, the United States Supreme Court.

2. Criminal Appeals Lawyer – State of Texas Convictions

Convictions in state trial courts based upon Texas law advance through the Texas system of appellate courts. Here, Michael Lowe is an appeals lawyer representing appeals and requests for writ relief in the appellate courts of the State of Texas, particularly the Fifth Circuit Court of Appeals that serves the Dallas area, and then to the highest criminal court in the State of Texas, the Texas Court of Criminal Appeals.

Motions for New Trial in Federal or Texas Court

Motion for a New Trial in Federal Court. After a guilty verdict (or finding) has come down in a federal criminal courtroom, the defendant can start almost immediately with appellate review of his or her conviction. In federal procedure, one important post-verdict motion to consider at this juncture is the “Motion for New Trial” under Rule 33 of the Federal Rules of Criminal Procedure.

Most motions for a new trial must be filed within 14 days of the verdict (or finding). However, in federal court, a Motion for New Trial can be granted “in the interests of justice” when the defendant can support the request for another trial with new evidence that has been discovered within three (3) years of the guilty verdict.

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Texas courts also hear motions for new trials. In Texas, defendants who have been convicted in their criminal trial can also file a motion with the trial court judge to have another trial. However, the time deadline for filing a Motion for New Trial is short: in Texas, the MNT must be filed within FIVE (5) days of the rendition of judgment and sentence (sentencing hearing) in municipal court and THIRTY (30) days in all other state courts (county and district).

If you miss the deadline, the motion cannot be heard.

The relevant section is Texas Rule of Appellate Procedure 21.4 which states:

The defendant may file a motion for new trial before, but no later than 30 days after, the date when the trial court imposes or suspends sentence in open court.

Why the short time deadline? The Motion must be presented to the trial judge within a short period of time from the trial itself, with the motion’s requests in an open hearing, in order to clarify and adduce the facts necessary to properly preserve errors made during the trial for review by the appeals court.

For instance, to raise an issue concerning a violation of the Sixth Amendment to the US Constitution which provides each defendant the right to effective representation by their lawyer at the criminal trial, it is very important to make sure that the reviewing court (the appellate court) will have all of the facts related to the allegation for attorney incompetence available to them when they review the case. The only way that the appeals court can gain access to those facts is through the Trial Court’s Record. Defendants do not get a second trial at the appellate court: the appeals court reviews the testimony transcribed by the court reporter and the documents introduced as evidence during the trial – they serve to grade the papers of what happened at trial, not to re-do the trial itself.

Therefore, it is almost always necessary have a hearing on the motion for new trial when an ineffective assistance of counsel claim needs to be raised on appeal.

What kinds of things support the request for a new criminal trial in Texas? Injustice. If you can support that the criminal trial was not just because of errors, mistakes, or bad acts then your motion for new trial has a great likelihood of success before the convicting court judge. Examples of past successful Texas motions for new trial include: questioning of the jurors after they have been released from duty reveal that some of the jury didn’t understand the evidence, or that the jury made some kind of material mistake; destruction of potential trial evidence that would help the defense is discovered; prosecutors were in improper communication with witnesses (or even the judge).

Motions for Writ of Habeas Corpus in Federal Court

Appeals of federal convictions proceed from the federal district where the criminal conviction resulted (the Eastern District of Texas; the Northern District of Texas; etc.) to the United States Court of Appeals for the Fifth Circuit. The U.S. Constitution protects the rights of every citizen to file for a writ of habeas corpus, stating in Article 1, Section 9, clause 2 that:

“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

Writs of habeas corpus involve post-conviction requests for the reviewing court to issue a “writ” that frees the person from imprisonment because of material mistakes that have been made in his or her case. Petitions for writs of habeas corpus are filed very frequently; however, not many federal writs of habeas corpus that actually release a prisoner for legal mistake or factual errors happen. Habeas corpus federal fights are hard to win, though this can happen (as for example the work done by The Innocence Project in the DNA Exoneration cases).

11.07 Writ for Habeas Corpus – Texas Habeas Relief

The Texas Code of Criminal Procedure (TCCP) provides a number of methods to gain review and relief after a conviction in a Texas criminal case. In Texas Code of Criminal Procedure’s Article 11, in non-death penalty cases, felony convictions that were the result of a plea bargain (waiver of appeal) or felony convictions that have exhausted their rights to appeal can seek review under a Motion for Writ of Habeas Corpus based upon Article 11.07 of the TCCP.

Pursuant to Article 11.07(c) of the Texas Code of Criminal Procedure, after the state has had time to respond to the convicted defendant’s request, the court that convicted the person (the criminal trial court judge) must decide “…whether there are controverted, previously unresolved facts material to the legality of the applicant’s confinement.”

If the trial court decides there are no unresolved material facts, then the case moves to the Texas Court of Criminal Appeals. The CCA gets a copy of the application, any answers filed by the prosecution, and a certification of the date of the lower court’s finding/decision.

If the trial court, however, reviews the habeas request and finds that there are “controverted, previously unresolved facts which are material to the legality of the applicant’s confinement,” then the law requires that the criminal trial court judge move forward with these issues of fact to be resolved. In doing so, the trial court judge can order more forensic testing, for example; orders can be issued for witnesses to come and testify in hearings or via depositions; and more.

The findings of fact that result from this review at the convicting court level are then forwarded to the reviewing court, the Texas Court of Criminal Appeals, along with all supporting documentation.

The form to be used in an Article 11.07 Motion for Writ of Habeas Corpus has been established by the Texas Court of Criminal Appeals (review it here) and all Article 11.07 filings before the Court of Criminal Appeals (the highest criminal court in the State of Texas) must conform to this official format as provided by the Court itself.

Criminal Appeals Attorneys and Article 11.07 Motions for Writ of Habeas Corpus

While convicted inmates can – and do – take advantage of their opportunity to file requests for habeas corpus relief on their own (pro se) using the official form with its explanatory instructions, many successful Article 11.07 requests for habeas relief have been the result of criminal defense appellate lawyers working hard to provide detailed, meticulous support under both the facts of the case and the current laws to argue for the Court of Criminal Appeal to agree to undertake a review of the case in the first place, and to thereafter grant the requested Writ of Habeas Corpus in favor of the convicted inmate.

Expungement / Expunctions

Expunction of Texas Criminal Records

Chapter 55 of the Texas Code of Criminal Procedure provides for the “expunction” of arrest records, court records and criminal history record information. In some situations, someone who has been convicted of a crime in the State of Texas can successfully have that blot on his record removed from public scrutiny, and protect his future.

After a successful expunction in Texas, you can deny the episode ever happened, because that is what is reflected in the criminal record after the expunction: all the information regarding that event has been removed.

Common expunctions include: (1) arrests for which the person was never charged with a crime; (2) criminal charges that were dismissed; and (3) juvenile alcohol offenses.

Expunctions are not available for everyone. For example, sex offender convictions can never be expunged from a criminal record and instances of domestic assault / family violence likewise cannot be expunged.

For more information on Expungement in Texas, check out RecordHelp.com.

For more detail on protecting your future from the impact of past Texas Criminal Records, check out the article written by Michael Lowe that provides more information, “ Texas Expunction of Criminal Records.”

Orders of Nondisclosure

All is not lost in protecting your future against a bad mark on a criminal record if expunction isn’t available to you: there is also the possibility of obtaining an Order of Nondisclosure. Here, while the information remains on your record, there is a court order which limits who can obtain it or know of its existence. The court order of nondisclosure limits access to the protected information and it cannot be released or reviewed by private parties (like future employers) without a judge’s okay.

For example, Section 411.081 of the Texas Government Code provides that an Order of Nondisclosure can be entered by a Texas judge in cases where a person on probation has successfully completed deferred adjudication community supervision. The offense that formed the basis of the deferred adjudication will be confidential.

As a former prosecutor turned criminal defense lawyer with over 150 jury trials defending clients against charges brought by district attorneys and U.S. federal prosecutors in Dallas County, Tarrant County, and elsewhere in the State of Texas, Board Certified Criminal Lawyer Michael Lowe not only brings his years of experience to each case, he also dedicates 100% of his law practice to the defense of those being accused of a crime under Texas or federal law.

With a streamlined law firm that coordinates its efforts to give each client the personal attention that they need and deserve when fighting against the government and the possibility of jail time, fines, permanent marks on public records, prison incarceration, loss of licensure, loss of jobs, absence from family events and everyday living, Michael Lowe maintains an efficient and excellent criminal trial practice that is ready to help you or your loved ones in your defense against criminal charges from pre-arrest investigation to post-trial appeals.

To discuss your case in a free and completely confidential consultation, please contact Dallas Board Certified Criminal Lawyer Michael Lowe today.

 

**For those individuals seeking an expunction or nondisclosure of their criminal records, Michael Lowe does not give free legal advice by phone.  You must schedule an appointment in the office and pay a small consultation fee.