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.

Appellate representation all across Texas

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 comes to your appellate lawyer. Your appellate lawyer examines the record and finds the points of error.

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

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 in the record 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, and 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 hidden 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(b) 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.
  • Hernandez v. State—Court of Criminal Appeals reversal and acquittal in evading-arrest case; the State failed to prove the stop was lawful.
  • Alkayyali v. State—Court of Criminal Appeals affirming reversal of a murder conviction where the jury charge omitted the “causes the death of” element.
  • Ex parte Eric Todd Williams—Court of Criminal Appeals habeas relief setting aside an online-solicitation conviction under Ex parte Lo.
  • Ex parte McGee—Court of Criminal Appeals vacating dismissal and requiring the court of appeals to address whether the trial court had jurisdiction to dismiss its own contempt judgment.
  • Ex parte Eugene—Companion to McGee; Court of Criminal Appeals confirming a right to appeal habeas denial after writ issuance and requiring the jurisdictional question to be addressed.

Frequently Asked Questions

What is a criminal appeal?

An appeal is a review by a higher court of legal decisions made in the trial court. It is not a new trial. No witnesses testify. No new evidence comes in. The court of appeals reads the record of what happened below and decides whether the trial court made a legal error serious enough to matter.

Most appeals lose. That is the honest answer. The courts give trial courts wide latitude, the standard of review on most issues favors the verdict, and most appellate lawyers are mediocre on their best day. But some appeals win, and the ones that win usually do so because a good lawyer spotted the right issue and pressed it correctly.

The result of winning an appeal can sometimes be an acquittal, but it is usually a new trial.

How long do I have to file an appeal?

In most Texas criminal cases, the deadline to file a notice of appeal is thirty days from the date of sentencing, or thirty days from the date the trial court denies a motion for new trial, if one is filed. Miss that deadline and the right of appeal is gone.

Thirty days sounds like a long time. It is not. Get a lawyer immediately after sentencing if you intend to appeal.

Can my trial lawyer handle my appeal?

Trial lawyers and appellate lawyers do different things. A trial lawyer’s job is to win at trial. An appellate lawyer’s job is to find what went wrong and argue it persuasively in writing to judges who were not there.

The skills overlap less than people think. Many trial lawyers are candid about this and refer their clients to appellate counsel after a conviction. If yours does not, ask.

Some lawyers are excellent at both trials and appeals. Even so, there is also a more direct reason to hire a different lawyer: your trial lawyer is sitting too close to the screen, and can’t necessarily see the big picture. Your case may benefit from a new pair of eyes.

What happens if I win my appeal?

Depends on what the court of appeals finds. A reversal on sufficiency grounds means the evidence was legally insufficient to support the conviction: you are acquitted, the case is over, and the prosecution cannot retry it. A reversal on other grounds usually means a new trial. The State can retry the case, plea-bargain it, or dismiss it.

Winning the appeal is not necessarily winning the case. But it is a second chance.

Can I get out of jail while my appeal is pending?

Sometimes. A defendant convicted of most offenses and sentenced to less than ten years in prison is entitled to bond on appeal. Often the bond on appeal is more than the bond was before trial.

What is a PDR?

A PDR—Petition for Discretionary Review—is a request to the Texas Court of Criminal Appeals to review a decision by one of the fourteen intermediate courts of appeals. The CCA is the highest court in Texas for criminal cases. It does not have to take any case. It grants PDRs to resolve conflicts between courts of appeals, correct significant errors, or develop the law.

Winning—or losing—at the court of appeals is not the end of the road. The State can file a PDR if the defendant won. So can the defendant if the State won. The CCA gets the last word.

The lawyer’s goal in a PDR is to show the Court of Criminal Appeals that there are interesting and important issues that need its attention.

What does “preserving error” mean, and why does it matter?

To complain about something on appeal, you generally have to have complained to the judge about it at trial, specifically, on the right legal ground, at the right time—when the judge can do something about it. That is preservation.

If your lawyer did not object, or objected on the wrong ground, the error is forfeited. The court of appeals will not consider it, with narrow exceptions for errors so fundamental that no objection was required.

Preservation is where most appeals die. An error that was not preserved below is, in most cases, not an appellate issue at all.

Can new evidence be introduced on appeal?

No. The court of appeals decides the case on the record made at trial.

In some cases new evidence can be added to the record before the direct appeal in a motion for new trial hearing. But if a witness recants, if new forensic evidence surfaces, if the prosecution withheld something: those claims generally belong in a writ of habeas corpus, not a direct appeal.

The direct appeal and the writ are different vehicles. Each has its own rules, its own deadlines, and its own courts.

How long does an appeal take?

In Texas, a direct criminal appeal typically takes six months to two years from the notice of appeal to a decision by the court of appeals. If the case goes to the CCA on a PDR, add another year or more.

Habeas proceedings vary widely. A straightforward application may be resolved in under a year. A contested evidentiary hearing can take considerably longer.

Appeals are slow. Arriving at the right legal decision takes time. But it is genuinely hard on clients and families.

What is legal sufficiency, and can it win an appeal?

A legal-sufficiency challenge argues that even viewing all the evidence in the light most favorable to the verdict, no rational jury could have found every element of the offense beyond a reasonable doubt. It is a constitutional floor, not a factual second-guess.

Courts sustain these challenges less often than defendants hope. The standard is deferential to the jury. But it succeeds in cases where the State simply failed to prove an isolable element: sometimes because of a charging instrument problem, sometimes because a key fact was never actually established.

A sufficiency win is a complete win. If the court of appeals finds the evidence legally insufficient, the prosecution may file a petition for discretionary review (PDR), but if that fails, the prosecution cannot retry the case.

Can the prosecution appeal?

Yes, but only in limited circumstances. The State can appeal certain pretrial rulings: a granted motion to suppress, a dismissed indictment, a ruling on the defendant’s motion to exclude evidence.

The State can also appeal trial-court errors if the defendant appeals. The State cannot appeal an acquittal. Double jeopardy bars retrial after a jury returns a not-guilty verdict.

If the State loses at the court of appeals, it can petition the CCA for discretionary review, just as a defendant can.

What is the difference between a direct appeal and a collateral attack?

A direct appeal follows the conviction as a matter of right. You file it, the court of appeals reviews the trial record, and the court decides whether the trial court made reversible error. It is the first round.

A collateral attack—typically a habeas corpus application—comes later. It raises claims that either could not have been raised on direct appeal (because they depend on facts outside the record) or were not raised but should have been. Collateral attacks face additional procedural hurdles: claims that were available on direct appeal and not raised are generally forfeited.

Issues that belong on direct appeal cannot usually be saved for habeas. Issues that belong in habeas cannot usually be raised for the first time on direct appeal.

What happens if I plead guilty? Can I still appeal?

Sometimes. A guilty plea waives most complaints about what happened before the plea, including most suppression issues, unless the trial court granted permission to appeal and the parties followed the right procedures. A guilty plea does not waive challenges to the voluntariness of the plea itself, jurisdiction, or the legality of the sentence.

An open plea to the court—where the judge sets punishment—preserves more issues than a negotiated plea with an agreed sentence. The details matter enormously, and they need to be worked out before the plea is entered.

If you pleaded guilty and think something went wrong, get an appellate lawyer to look at the record before assuming you have no options.

What is a motion for new trial, and should I file one?

A motion for new trial is a request, made in the trial court within thirty days of sentencing, to set aside the verdict. It is the vehicle for raising claims that require developing facts outside the trial record: ineffective assistance, juror misconduct, newly discovered evidence.

Whether to file one depends on what claims are available. Failing to file a motion for new trial when the facts require it can forfeit those claims permanently. Filing one also extends the deadline to file the notice of appeal.

In serious cases, an appellate lawyer should evaluate whether a motion for new trial is warranted before the deadline passes, which means getting involved quickly after sentencing.

What does the Court of Criminal Appeals actually do?

The Texas Court of Criminal Appeals is the court of last resort for criminal cases in Texas. It sits in Austin with nine judges elected statewide. It has discretionary jurisdiction over most cases, meaning it chooses which PDRs to grant. It has mandatory jurisdiction over death penalty cases, which go directly from the trial court to the CCA.

When the CCA takes a case, its decision is final, short of a federal constitutional claim that can be taken to the United States Supreme Court.

Most cases never reach the CCA. Most lawyers never argue there. It is a specialized court, and appearing before it well requires knowing how it thinks.

What are my realistic chances on appeal?

Lower than most people expect. Reversal rates on direct appeal in Texas run in the single digits to low teens depending on the court and the offense. Most convictions are affirmed.

That does not mean you should not appeal. It means you should appeal with the right issue, argued the right way, by a lawyer who knows the court.

If we’re being candid, most appellate lawyers are mediocre, and unable to find the right issue and make the right argument. A long-shot issue argued poorly is a loss. A strong issue argued well has a real chance.

The honest answer varies enormously by case. There is no general answer worth much. What matters is whether this record, these facts, and this ruling give an appellate court something to work with.

When should I call an appellate lawyer?

Before the verdict comes in, ideally. Appellate lawyers who are involved during trial can spot preservation problems in real time, advise trial counsel on the record, and be ready to move immediately after sentencing. A good trial lawyer will often bring an appellate lawyer in on the team even before the trial.

If that did not happen, call as soon as sentencing is over. The thirty-day deadline for the notice of appeal and the thirty-day deadline for a motion for new trial run simultaneously. Missing either one can close off significant options.

If you are already past the direct-appeal stage, it is not too late to ask. Post-conviction relief has its own deadlines and its own procedures, and some avenues remain open long after the direct appeal is over.

We handle serious appeals. If the outcome matters, call us: 713-224-1747.

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 [email protected] and tell us about the case.

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