Your trial lawyer picked the jury, cross-examined the witnesses, and argued to the court. You have been convicted and sentenced. Now you need a different set of skills.

An appellate court reads a paper record—thousands of pages, sometimes tens of thousands—and decides whether the law was correctly applied. That requires a lawyer who reads records the way your trial lawyer reads jurors: carefully, patiently, and with an eye for what everyone else missed.

That is what we do.

Board Certified in Criminal Law and Criminal Appellate Law

Mark Bennett is Board Certified in both Criminal Law and Criminal Appellate Law by the Texas Board of Legal Specialization. Very few Texas lawyers hold even one of those certifications. Almost none hold both.

Board certification requires years of practice, peer review, examination, and continuing specialization. It means the Texas Board of Legal Specialization has independently verified that this lawyer knows the field.

Geography does not limit appellate representation

Trial lawyers go to a courthouse. Appellate lawyers go to a record. Your case might be in El Paso, Texarkana, Corpus Christi, or Amarillo. The record is the record. The law is the law.

We regularly practice before intermediate courts of appeals across Texas, and the Court of Criminal Appeals.

Direct appeals

A direct appeal challenges the conviction or sentence based on errors in the trial court record. The trial lawyer preserves error; the appellate lawyer finds it and frames the argument. Sometimes error is obvious. More often it is buried in a ruling that seemed right at the time, or hidden in an instruction that nobody objected to, or embedded in the structure of the indictment itself.

We identify issues that other lawyers do not see. In seven recent cases before the Texas Court of Criminal Appeals, we won on seven different legal issues: range, not repetition.

Habeas corpus

When the direct appeal is over, or when the error could not have been raised on direct appeal, habeas corpus is the remedy. Habeas claims include ineffective assistance of counsel, newly discovered evidence, actual innocence, false testimony, and Brady violations.

Petitions for discretionary review

When a court of appeals gets it wrong, the Court of Criminal Appeals can grant discretionary review. The petition is the hardest document in Texas appellate practice—4,500 words to convince the highest criminal court in the state that your case is worth its time. We have a track record of getting the Court’s attention with interesting, important issues. Recently we have been arguing in the court more than any other defense team in Texas.

What makes appellate work different

Trial lawyers persuade twelve people in a room. Appellate lawyers persuade three or nine judges through the written word. Appellate work demands a distinct set of skills: the patience to read a ten-thousand-page record, the precision to frame a legal argument on paper, the judgment to know which issues will move a court, the imagination to find issues that everyone else misses.

What makes us different

We bring those skills, but we are also trial lawyers. We understand the record because we understand trials: we know what should have happened, because we have done it.

Writing an appeal is easy; lots of lawyers are doing it and losing. Writing a winning appeal requires finding the issues that other lawyers miss.

Selected appellate wins

• Ex parte Cook — Court of Criminal Appeals finding of actual innocence after 21 years of wrongful imprisonment for a 1977 murder.
• Ex parte Lo — Court of Criminal Appeals unanimously holding Texas Penal Code section 33.021(c) facially unconstitutional under the First Amendment.
• Ex parte Estevez — Court of Criminal Appeals holding that a DWI prosecution after contempt for the same conduct violated double jeopardy.
• Owens v. State — Court of Criminal Appeals holding section 42.07(a)(7) unconstitutional as applied to nonthreatening text messages.
• State v. Cuarenta — Court of Criminal Appeals holding the State could not appeal a grant of deferred disposition on a Class C misdemeanor.

Frequently Asked Questions

What is the deadline to file a criminal appeal in Texas?

The notice of appeal must be filed within 30 days of the day the trial court imposes or suspends sentence in open court. If a motion for new trial is filed within 30 days of sentencing, the deadline to file the notice of appeal extends to 90 days. These deadlines are jurisdictional; miss them and the right to appeal is gone. If you have just been convicted, call a lawyer before you do anything else.

Can I appeal if I pleaded guilty?

Yes, but the scope is limited. If you pleaded guilty with a plea bargain and the court followed the agreement, you can generally appeal only issues raised by written pretrial motion (such as a motion to suppress) with the trial court’s permission, or issues related to jurisdiction or the voluntariness of the plea. If you pleaded guilty without a plea bargain, or if the court exceeded the agreed sentence, you can appeal more broadly.

What is a petition for discretionary review?

When a court of appeals rules against you, the case is not automatically over. You can ask the Court of Criminal Appeals to take the case by filing a petition for discretionary review (PDR). The Court is not required to accept; it chooses cases that involve important or unsettled legal questions. The PDR is limited to 4,500 words and must convince the Court that the issue matters beyond your case. Most PDRs are denied. Ours are not most PDRs.

How long does a criminal appeal take in Texas?

A direct appeal typically takes 12 to 24 months from notice of appeal to opinion, depending on the length of the record, the court of appeals, and whether briefing extensions are requested. A PDR to the Court of Criminal Appeals adds another 6 to 18 months. Habeas proceedings have no fixed timeline and can take longer. None of this includes the time to prepare the record, which in a complex trial can take months on its own.

What is the difference between an appeal and a habeas corpus?

A direct appeal challenges errors that appear in the trial court record: things the judge did wrong, things the prosecutor did wrong, things your trial lawyer objected to. A habeas corpus application raises claims that do not appear in the record, or could not have been raised on direct appeal: ineffective assistance of counsel, newly discovered evidence, actual innocence, suppressed evidence. Different vehicles, different rules, different courts, different standards. Sometimes both are necessary.

If you have been convicted

Deadlines in Texas criminal appeals are short and unforgiving. A notice of appeal must be filed within 30 days of sentencing. A motion for new trial—which can extend that deadline—must be filed within 30 days as well. If your trial lawyer has not already filed these, time may already be running. Read more about what to do in the first 30 days after a conviction.

If you or someone you care about has been convicted, email us at info@bennettandbennett.com and tell us about the case.