May-June 2010

An appellate dictionary for non-appellate attorneys

A primer on what trial attorneys should know about appellate jargon, documents, and deadlines

Melinda Fletcher

Appellate Attorney for the Special Prosecution Unit in Amarillo

Pop quiz:  You, a trial attorney, return from lunch and see a mandate from the local court of appeals sitting on your desk. It looks very official. You:
    (a)    shuffle it under a large pile of papers, hoping it will magically go away;
    (b)    break out into a cold sweat and start to hyperventilate; or
    (c)    do the happy dance.

The answer is probably “c.” If you thought “c” had to be the only wrong answer, then this article is for you.

    Many offices have appellate attorneys that take over a case once prosecutors are finished with a trial or sometimes even a plea. Though you may never see the case again, there is often a lot of work going on for the next several months or even years. This article is not legal advice: it is just a Wikipedia-style dictionary for those who aren’t sure what appellate jargon means. It discusses criminal appeals only and primarily discusses appeals by the defendant. I hope it will help you know when to celebrate, when to sit back and wait, and when you need to start working  to save your case.

    Motions for New Trial are usually filed by the defense after a trial.1 They are generally very brief and say something like, “The verdict is against the great weight and preponderance of the evidence.” If this is the case, you are probably safe to ignore it: The defense attorney is just buying some time before the appeal starts. If the motion has more meat to it, you probably need to review it and be ready to tell your judge in a hearing why the motion should not be granted. If your judge ignores the motion also, it will be overruled by operation of law in 75 days.

    Notices of Appeal are the documents necessary to perfect an appeal.2 You do not need to respond to them in any way, except maybe to give it to the office’s appellate attorney. Fear not! Many more documents are coming your way.

    Docketing Statements are required by the courts of appeals and must be prepared by the party who gave the notice of appeal.3 If the defense filed this statement, you can nearly always file it and ignore it. If it is a slow day, you might read it over and possibly learn something. Spotting and correcting a problem now may save you or your appellate attorney more work later.

    A flurry of correspondence will follow in the next few months. Letters may come from the defense attorney, clerk, court reporter, and appellate court. Read these, but most likely you will not need to respond to any of them. However, if the court of appeals directs you to respond, do it! Ask for help if necessary, but do not ignore an order or request from the appellate court.

    The Brief for Appellant will eventually land on your desk.4 Now it is your time to work. The Brief for the State is probably due within 30 days. You will soon receive a letter or postcard from the appellate court telling you exactly when the brief is due.

    Either side may file a Motion for Extension of Time to file its brief.5 It is proper to call opposing counsel and ask whether he agrees to or opposes the motion. My personal practice is to always agree. For one reason, the defendants in my cases are nearly always incarcerated pending appeal so I do not care how long it takes. For another reason, I sometimes find myself needing more time, and it is much easier to ask for a returned favor from defense counsel down the road. If there is some reason that you do oppose the defense taking more time, say so, but be aware that those remarks may end up quoted and filed with the appellate court.

    Each appellate court has its own customs regarding motions for extensions of time. Some grant them all, and some grant very few. Most fall in between somewhere. Do your homework and know what to expect in the court where your appeal has been filed.

    After the State’s brief is filed, start playing the waiting game. You may occasionally receive a Reply Brief. This is the appellate equivalent to rebuttal arguments. Read over it, just in case the defense points out that you really did screw up and you need to fix it to save credibility with the court of appeals. If it is just a difference of opinion or a repetition of the original argument, you can file this away and continue waiting.

    Sometime down the road, you will receive an Opinion from the court of appeals. Definitely read it. Not only will it tell you whether the case was affirmed, but you may also learn something to help with another case in the future. If your case was affirmed, continue waiting, only now a little more joyously.6

    The party who considers the opinion a loss may file a Motion for Rehearing.7 It is an opportunity to convince the appellate court that it was wrong and should change its mind. It is nearly always futile. Appellate justices, like the rest of us, are rarely convinced that they made a mistake. However, like the motion for new trial, it is a way to buy some time even when you know you have precious little chance of success on that particular motion.

    A Petition for Discretionary Review (PDR) is the document that asks the Court of Criminal Appeals to review a case.8 The Court of Criminal Appeals is the highest court in Texas to hear criminal cases; for civil cases, the Supreme Court is its counterpart. Both courts hear only the cases they choose to hear, and they choose not to hear most cases. In rare instances, you may choose to respond to the PDR and let the court know up front why they should not grant it, but many appellate attorneys feel that filing a response highlights your fears and makes the court pay a little more attention to the PDR. Most often, unless and until you get a letter that PDR has been granted, there is nothing for you to do but, you guessed it, wait some more.

    If the opinion was against the State and you wish to file a PDR, pay particular attention to the guidelines, requirements, and deadlines. The State’s Appellate Manual, available from TDCAA, is full of great tips and reminders; I recommend reviewing it each time you receive an opinion that you don’t like. If you do not use the manual, seek advice, do some research, and do some soul searching—there are many traps for the unwary.

    The court will send a letter to counsel for both sides informing you whether PDR is granted. If it is, the cycle described above for the initial appeal repeats: The movant files a brief, opposing counsel files a brief, there may be a reply brief filed, the court contemplates your case, and it eventually renders an opinion. The unhappy party may now file another Motion for Rehearing, which stands about as much a chance of success as the earlier one.

    Eventually, all of the courts and parties will have their say and the avenues are exhausted. At this point, the original court of appeals will render a Mandate. This document makes your judgment final. (Hence, the happy dance!) The court will also send a copy directly to the district clerk to put in the original case file. You may do with the mandate whatever you wish: file it, frame it, or burn it. Your copy is just another piece of paper.

    Perhaps the most important thing for a trial attorney to know about mandates is that they are the document that makes an appealed judgment final. If you are trying a case and need a prior conviction to prove up either a punishment enhancement or an element of the original charge, you may get caught short if you do not have a mandate. If you present a judgment or pen pack as evidence, all the defendant has to do is say that the case was appealed and the ball is back in your court to prove that the judgment is final. Do so with a mandate. If you prepare ahead, a certified copy of a mandate is easy to get from the district clerk. You may also be able to get a certified copy from either the appellate clerk or TDCJ, but you probably will not get one if you do not ask. Depending on where these documents are filed, it can take a few minutes or a few weeks—plan ahead!

    If your case was anything but “affirmed,” carefully review Rule 51.2 of the Rules of Appellate Procedure and make sure you know what needs to happen next. It may be necessary to retry your case or even just follow up with county or district officials and make sure they have done their jobs.

    Now that you know all that you need to know about appeals (unless you are responsible for one), let us take up one more subject: the State’s Right to Appeal. The State has a very limited right to appeal, and appellate courts are divided over just how we are supposed to appeal. Article 44.01 of the Code of Criminal Procedure sets out the circumstances under which the State may initiate an appeal. If you feel frustrated, cheated, or abused or are just flat angry, review the code. I also suggest you cool off for a day or two, then discuss it with other attorneys. The timelines and requirements for a State’s appeal are different than those for an appeal by the defense, so be sure to thoroughly read and comply with the code.

    My last bit of advice? Talk to your appellate attorney. If you do not have an appellate attorney, find one in another office and make friends with him. (You can also e-mail TDCAA’s senior appellate attorney, John Stride, at stride Ask dumb questions. Ask them again if necessary. If possible, ask them early. We are all striving for the same goal, and the easier we can make the journey for one another, the happier we will all be.


1 Motions for New Trial are codified in Rule 21 of the Rules of Appellate Procedure.
2 Rule 25.2 of the Rules of Appellate Procedure explain how to perfect an appeal of a criminal case.
3 Rule 32.3 of the Rules of Appellate Procedure explain docketing statements for criminal cases.
4 Rule 38 of the Rules of Appellate Procedure explain the requisites of briefs.
5 Rule 10.5 of the Rules of Appellate Procedure outlines the procedures for requesting additional time.
6 The great majority of cases are affirmed on appeal. For this fact and others that might interest you, see the Annual Reports for the Judiciary available online at AR2009/toc.htm#appellate.
7 See Rule 49.1 of the Rules of Appellate Procedure.
8 Rule 68 of the Rules of Appellate Procedure outlines the procedure for PDR.