Every defendant convicted of a crime is entitled to one appeal of right – called the direct appeal – to one of the fourteen court of appeals spread across Texas, including two in downtown Houston. The appeal can usually be decided only by matters that appear in the trial record, that is, issues that were objected to by the defense. The defendant cannot introduce new evidence or issues at this stage of the appeal.

If the defendant loses this appeal, he or she can appeal this decision to the Court of Criminal Appeals in Austin, the State’s highest criminal court by filing a petition for discretionary review. But the court does not have to hear the appeal because it is discretionary in nature (four of the nine judges must vote to hear the case). By the same token, if the State has lost in the court of appeals, it may also seek discretionary review. While the defendant may appeal to the United States Supreme Court, the high court hears less than 1% of all cases that come before it.

The United States Constitution guarantees a defendant the right to a fair trial, not a perfect trial. As a result, the odds of winning a new trial on appeal are relatively slim – less than 5% of all felony convictions are reversed and the number is only slightly higher for misdemeanors.

Because the system requires defendants to point out any possible legal errors to the trial judge so they can be corrected before the trial is over, and because every trial has at some minor errors that do not effect its fundamental fairness, appellate courts will not reverse a conviction or order a new punishment hearing unless the defense can show three things: (1) a legal mistake (2) timely and specifically objected to by the defense (3) that was substantially prejudicial to the defendant.

Most criminal appeals are lost because there were no legal mistakes impacting the fundamental fairness of the trial at the guilt-innocence or punishment stages. However, many appeals are also lost because the defense lawyer was unable or unwilling to make the correct legal objection at the appropriate time.

Whether evidence was admitted that should have been excluded because it was improperly obtained by the police or because the prosecution did not state the correct legal grounds for its admission. Whether evidence was excluded that should have been admitted. Whether there were mistakes in the selection or composition of the jury.

Whether the trial judge made comments or the prosecutor made arguments that were improper and prejudicial. Whether the judge incorrectly instructed the jury on the law applicable to the case in his or her written instructions. Every trial and every appeal is unique in terms of the issues that could result in a new trial or new punishment hearing.