Win a texas criminal appeal – a top appeals lawyer explains

Winning a criminal appeal in Texas is a lifechanging event. Read more to learn tips from how Spolin Law P.C. fights criminal appeals.


  1. How to Win an Appeal
  2. Texas Criminal Appeals Explained
  3. Appellate Deadlines
  4. Arguments that Can Overturn Convictions
  5. Choosing Your Appeals Lawyer
Los Angeles Criminal Defense Attorney Aaron Spolin

Former prosecutor Aaron Spolin leads Spolin Law P.C., which handles Texas state and federal cases. Mr. Spolin has been on the winning side of hundreds of criminal cases.

How to Win an Appeal

Winning a Texas criminal appeal takes skill. It usually depends on the facts of the case and how errors are presented to the appellate court. Spolin Law P.C. has had success on post-conviction cases by using the following strategies:

  1. Find Errors in the Record:
    Most successful appeals are based on finding things that went wrong in the court before the conviction or during the sentencing. An error by the judge, misconduct by the prosecutor, or even the ineffectiveness of a defense lawyer can all result in rights violations. If a criminal defendant’s rights are violated that can form the basis for overturning a conviction or modifying a sentence.
  2. Show the Client’s Innocence:
    While some appeals are won by showing “technical” issues or problems, appeals generally have a higher chance of success if they show the appellate judges how the client is actually innocent. Obviously only some cases allow for this strategy, but Spolin Law P.C. has had great success in explaining why a judge should actually care about helping the client. The goal is to show the judge that (1) not only was there a violation of rights but also (2) helping the client win is the moral thing to do.
  3. Refute the Prosecutor’s Arguments:
    Prosecutors almost always argue against a criminal defendant on appeal. After the defense lawyer submits his or her arguments, the prosecution frequently files a Respondent’s Brief. At Spolin Law P.C., we never like to give the government the last word. That is why we focus a great deal of energy on our reply to the government’s brief. The goal is to argue against the government’s positions and explain why they either do not apply or are irrelevant to the issues on appeal.

Obviously, prior success does not guarantee a similar outcome on a future case. Nonetheless, the same strategies that have been used to win past appeals can be used again when the facts allow it. To learn more about the arguments that may apply to your case, call Spolin Law P.C. for a free consultation. (866) 716-2805.


  1. How to Win an Appeal
  2. Texas Criminal Appeals Explained
  3. Appellate Deadlines
  4. Arguments that Can Overturn Convictions
  5. Choosing Your Appeals Lawyer

What is an Appeal?

A person who is convicted of a crime has a right to have a second court review the conviction. The second court will be presented with a record of what occurred at trial, and the conviction individual may present the second court with an appellate brief. The appellate brief contains arguments for why a conviction was improper. The State is also entitled to file an appellate brief.

An appeal is generally limited to what happened at trial and/or in court. Issues not raised at trial usually cannot be included in an appeal. At Spolin Law P.C. we closely examine the record to identify issues raised (and issues not raised) at trial, so that we can identify the legal issues that are present and submit a persuasive and compelling appellate brief on your behalf. If an issue is not raised at trial, it may possibly be raised in a writ of habeas corpus, which is another type of appeal.

The Texas Court System

Most felony criminal cases are heard in one of the 477 District Courts that are found throughout Texas (as of October 1, 2019). A large number of courts are located in the major metropolitan areas of Dallas, Fort Worth, Houston, San Antonio, and Austin, while the majority of courts are in other outlying metropolitan and non-metro areas.

If someone is convicted in the District Court, he or she may appeal the conviction to one of the 14 Courts of Appeals. If the conviction is affirmed on appeal, there is no automatic right to appeal to the highest court for criminal appeals, which is called the Court of Criminal Appeals. Instead, a convicted individual may request that the Court of Criminal Appeals review the conviction. A death penalty case is appealed from the District Court directly to the Court of Criminal Appeals.

Since the Court of Criminal Appeals does not automatically review every single conviction in the State of Texas, a convicted individual who seeks review in the Court of Criminal Appeals may file a Petition for Discretionary Review (see below for more information). This Petition is a request to the Court of Criminal Appeals to accept a case for review. After submitting a Petition for Discretionary Review, the Court of Criminal Appeals will decide whether to review a conviction. Under rare circumstances, the Court of Criminal Appeals will accept a case for review without the submission of a Petition for Discretionary Review.

As Spolin Law P.C., we can handle both appeals to the various Courts of Appeals, and Petitions for Discretionary Review to the Court of Criminal Appeals (if required in your case).

Courts of Appeals for Dallas-Fort Worth, Houston, Austin, and San Antonio.

The specific appellate court for your case matters because it determines which judges will handle your appeal. Some judges are friendlier to criminal defendants while others have a more “law-and-order” approach. There are 14 courts of appeals in the state. Criminal appeals in some of the largest cities in Texas are heard in the following appellate courts:

  • 1st Court of Appeals (Houston metro area) – Austin County (not to be confused with the city of Austin), Brazoria County, Chambers County, Colorado County, Fort Bend County, Galveston County, Grimes County, Harris County, Waller County, and Washington County.
  • 2nd Court of Appeals (Dallas-Fort Worth metro area) – Archer County, Clay County, Cooke County, Denton County, Hood County, Jack County, Montague County, Parker County, Tarrant County, Wichita County, Wise County, and Young County.
  • 3rd Court of Appeals (Austin-Round Rock-San Marcos metro area) – Includes over 20 counties, including Travis County, the location of Austin, Texas.
  • 4th Court of Appeals (San Antonio metro area) – Includes over 25 counties, including Bexar County, the location of San Antonio, Texas.

Other major metro areas in Texas include El Paso (8th Court of Appeals), McAllen–Edinburg–Mission (13th Court of Appeals), and Corpus Christi (also 13th Court of Appeals). In total there are 14 different courts of appeals throughout Texas’s 254 counties.

Getting Released on Bail During the Appeal

Bail is not available when a defendant is convicted of a felony and sentenced to a prison term of 10 years or more. Bail is also not available for convictions of certain drug offenses.

The court will deny bail if the judge believes that a defendant will not turn himself or herself in if the conviction is later affirmed on appeal. As well, if the court believes that the releasing the defendant will be result in the defendant committing another crime, the court will deny bail. A denial of bail may be appealed.

Some factors that the court considers in setting bail are: length of sentence; past history of compliance with bail and making appearances that were required by the court; and ties to the community, such as family, friends, employment, etc.

Discretionary Review by the Court of Criminal Appeals

As noted above, the Court of Criminal Appeals decides which criminal cases to review. While the Court of Criminal Appeals may theoretically review a case without a motion, if someone seeks to appeal to the Court of Criminal Appeals, a Petition for Discretionary Review should be filed with the Court of Criminal Appeals.

Tex. R. App. P. 66.3 lists some of the reasons that the Court of Criminal Appeals may grant review. This includes but is not limited to:

  1. Whether there is an important question that should be decided by the Court of Criminal Appeals;
  2. If there is a conflict between different courts of appeals;
  3. Whether a statute is unconstitutional;
  4. Whether the Court of Appeals did not address an issue on appeal;
  5. Whether there is a significant issue that warrants the attention of the Court of Criminal Appeals.
  6. Whether there is a disagreement in the court of appeals in the case- a strong dissent may be a reason for the Court of Criminal Appeals to review the case.

A Petition for Discretionary Review should explain why the Court of Criminal Appeals should accept the case for review. Due to the large number of Petitions that it receives, and the limited number of cases that it accepts, many Petitions for Discretionary Review are denied. A Petition for Discretionary Review must be filed within 30 days from when the court of appeals issues its judgment.

The Petition: the Petition should include, among other things, a short statement of facts, procedural history, the grounds for review, and why the court should grant review.

If the court accepts the petition, the court will generally review whether the court of appeals erred (and not necessarily whether the trial court erred).


  1. How to Win an Appeal
  2. Texas Criminal Appeals Explained
  3. Appellate Deadlines
  4. Arguments that Can Overturn Convictions
  5. Choosing Your Appeals Lawyer

Is there a Deadline to File your Appeal?

There are two primary types of appeals in Texas, and each have very different deadlines. The first type of appeal is a “direct appeal” after a conviction. This has a very short deadline, described below. A second type of appeal (called a Writ of Habeas Corpus) can often be filed much later, potentially even many years after a conviction. To read about Writs of Habeas Corpus, view the Writ of Habeas Corpus page.

With a direct appeal, there is a short deadline to file a “Notice of Appeal.” Without a Notice of Appeal, Courts of Appeals do not have authority to consider your appeal and will likely dismiss the appeal. Thus, if someone is convicted, it is imperative to quickly file a Notice of Appeal. The standard deadline to file a Notice of Appeal is 30 days from sentencing. If a motion for new trial is filed, the deadline to file a Notice of Appeal is 90 days from sentencing. A notice of appeal that is filed after conviction, and prior to sentencing, is known as a “premature notice of appeal,” and is usually accepted by the court.

A Notice of Appeal must be in writing, must be served on the State, and must be filed with the clerk of the trial court. There is no specific language that is required. All that is required is that the Notice of Appeal demonstrate that a convicted defendant wishes to appeal his or her conviction.

Late Notice of Appeal: If a defendant misses the 30-day deadline to file a Notice of Appeal, the Defendant may file a late Notice of Appeal with the clerk of the trial court, and simultaneously file a motion for an extension of time with the Courts of Appeals. Both of these filings must be done within 15 days of the deadline to file a Notice of Appeal. However, the court may not accept the late filing.

A person seeking to appeal must do his or her best to timely file a Notice of Appeal.

The Record

At trial, there is a court reporter who makes a record of the trial. A successful appeal must show, based on the record, that an error occurred; that the error was preserved for review; and that the defendant was harmed by the error. The record consists of two parts:

  • the “clerk’s record” contains the documents that were filed in the case, and
  • the “reporter’s record” contains a report of what happened at trial and pre-trial.

If there is something that happened at trial, yet does not appear in the Record, a defendant may file a Formal Bill of Exception. The procedure for his is set forth in Tex. R. App. P. 33.2.

  • Docketing Statement: A docketing statement is a document that must be filed with the court. It contains certain information about the case, such as the name of the attorney, the date that the Notice of Appeal was filed, the criminal charges, and other information that is listed in Tex. R. App. P. 32.2.
  • Abatement: The appellate court may order an “abatement” of the appeal, which means that the case will be sent back to the lower court, to determine a specific issue. For example, if the Court of Appeals decides that the lower court should have held a hearing about a defendant’s competency to stand trial, the case may be sent back to the lower court, for a hearing.

  1. How to Win an Appeal
  2. Texas Criminal Appeals Explained
  3. Appellate Deadlines
  4. Arguments that Can Overturn Convictions
  5. Choosing Your Appeals Lawyer
spolin-law-logo

Winning a criminal appeal requires effective argument. Contact a lawyer at Spolin Law P.C to see which arguments might apply to your case. We can be reached at (866) 716-2805.

Arguments that Can Overturn Convictions

Each case is unique, and each case must be examined for potential arguments that may be made on appeal. Below is a sampling of some common arguments that may overturn a Texas criminal conviction:

Insufficient Evidence

the State’s evidence is insufficient to support a conviction. Each crime has elements the State must show that the defendant violated all elements of a crime. On appeal, the elements of a crime must be examined, in order to determine whether the State’s evidence shows that the elements of a crime were violated. Similarly, the Court may have erred in deciding that a defendant did not prove an affirmative defense.

Ineffective Assistance of Counsel

this occurs when an attorney made significant mistakes at trial, and those mistakes prejudiced the defendant. This is typically argued in a writ of habeas corpus, though there are times when this argument may be included in an appellate brief.

Improper Admission of Confession

under Miranda, a defendant must be told that he or she has the right to remain silent, among other rights (“You have the right to remain silent…”). A confession given in a custodial interrogation without a Miranda warning is usually not admissible.

Admission of Improper Evidence

Evidence obtained in violation of the Fourth Amendment’s guarantee against unreasonable search and seizures.

Fruit of the Poisonous Tree

Evidence obtained by improper means may not be admissible.

Double Jeopardy

The Constitution guarantees that a person may not be tried a second time after an acquittal.

Denial of a Right to a Speedy Trial

there is a constitutional right to a speedy trial. Some factors that the Texas appellate courts look to are the length of the delay, the reason for the delay, whether the Defendant sought a speedy trial, and whether there was prejudice to the Defendant.

Denial of a Right to a Speedy Trial

there is a constitutional right to a speedy trial. Some factors that the Texas appellate courts look to are the length of the delay, the reason for the delay, whether the Defendant sought a speedy trial, and whether there was prejudice to the Defendant.

Statute of Limitations

each crime has a deadline by which the prosecution must file charges, though there may be some exceptions to this rule.

Failure to Disclose Exculpatory Information

the prosecution is obligated to disclose evidence that supports the Defendant. A failure to do is may result in a reversal of a conviction.

Prosecutorial Misconduct

In addition to not providing exculpatory evidence, the prosecution may make improper appeals to emotion, or other arguments that are not allowed.

Constitutional Errors

constitutional errors are subject to the “harmless error” rule. This means that a conviction will not be overturned if an error is “harmless.” When using the “harmless error” rule, “the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.” Tex. R. App. P. 44.2(a).

Other Errors

If an error does not affect “substantial rights,” the error will be disregarded. Tex. R. App. P. 44.2(b). The court will determine what effect the error had on the jury- did the error have a major effect on the outcome of the trial.

Errors in Jury Instructions

the instructions given by the judge to the jury may have been erroneous. If the jury instructions contained an error, the Courts of Appeals will determine whether a defendant received a fair and impartial trial, despite the error.

Errors in Jury Selection

Whether the court improperly denied a peremptory challenge to a juror.

Other Issues

There are literally hundreds—if not thousands—of arguments that can be raised in a criminal appeal. By speaking with a criminal appeals lawyer you can see what common or unique arguments may apply to a specific case.

To learn about whether these or other arguments apply to your case, call Spolin Law P.C. at (866) 716-2805 to speak with an attorney.


  1. How to Win an Appeal
  2. Texas Criminal Appeals Explained
  3. Appellate Deadlines
  4. Arguments that Can Overturn Convictions
  5. Choosing Your Appeals Lawyer
spolin-law-logo

Spolin Law’s success is based on the award-winning attorneys at the firm. Read more at the firm’s Awards & Media page.

Choosing Your Appeals Lawyer

The quality of your appeals lawyer can have a large impact on the likelihood of winning. This is because it can be difficult to find errors in the court record and then explain these errors in a way that persuades a judge.

Spolin Law’s success is largely based on:

  • Diligent Research – The firm’s attorneys pour through the transcripts and other case documents to find every possible argument for appeal.
  • Forceful Advocacy – Our clients know that we have their back; we will do what it takes to show the righteousness of each case.
  • Experience Winning Cases – The firm has won awards and media coverage for our prior cases. While prior success doesn’t guarantee future success, we have experience knowing what it takes to win.

To learn about ways to fight your own case and speak with one of the firm’s award-winning attorneys, call us at call us at (866) 716-2805.