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Brian Wice Law
Criminal Defense Lawyer
Criminal Defense Lawyer
My Philosophy
Over the course of four decades as a criminal defense lawyer, I have handled more than 300 different appeals and post-conviction matters involving almost every legal issue imaginable. I have represented professional athletes, politicians, judges, lawyers, doctors, accountants, and most importantly, people just like you or your loved ones.
From the simplest driving while intoxicated cases to capital murders where the death penalty has been assessed, whenever I undertake the awesome and sometimes life-altering task of representing any client, I am reminded that, as the legendary Chinese military tactician Sun Tzu wrote, “Every battle is won or lost before it is ever fought.”
Because litigation is a zero-sum game, there is no substitute for hard work and preparation and there are no style points for finishing second. My philosophy and my promise to every client who reposes their trust in me is simple: no one will work harder to put you or your loved one in a position where the ultimate victory is attainable. You have my word.
FAQs
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How Does The Appellate Process Differ From A Trial?
It is often said that criminal trials are a search for truth and that appeals are a search for legal mistakes. The issue in a trial before a jury or to a judge is whether the defendant is guilty or not guilty and if guilty, what punishment is appropriate. Only trial judges and juries can determine what witnesses are credible and are telling the truth. Appellate courts cannot and do not re-determine if a witness was lying or mistaken and are only concerned with whether the trial process was fundamentally fair and whether the prosecution proved the defendant’s guilt beyond a reasonable doubt.
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What Is The Appellate Process In Texas?
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.
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What Are The Chances Of Winning An Appeal?
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.
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What Kinds Of Mistakes Does An Appellate Court Look For?
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.
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How Long Will It Take To Decide My Appeal?
The United States Constitution guarantees a defendant the right to a speedy trial but not to a speedy appeal. From the time a defendant is convicted until the time his or her appeal is decided by the court of appeals is generally one year. Once again, there is no hard and fast rule because every appellate court has its own timetable for disposing of a criminal appeal.
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What Happens If I Win My Appeal?
If the defendant is in custody, he or she is entitled to release on bond while the State determines if it wants to seek rehearing in the court of appeals or seek review in the Court of Criminal Appeals. If the defendant is not in custody and he or she has chosen to begin their probation, they are no longer required to report to their probation officers.
If the State does not appeal further, the matter is returned to the same trial judge who presided over the first trial. It is as if the defendant is returning to court for the first time.
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What Is A Writ Of Habeas Corpus?
A writ of habeas corpus (Latin for “produce the prisoner”) is the final attempt by a defendant to overturn his or her conviction or obtain a new punishment hearing after the initial appeal(s) have been lost. It is a proceeding focusing on three possible areas of relief: (1) evidence of newly discoverable or available evidence of the defendant’s innocence; (2) evidence the prosecution hid evidence of the defendant’s innocence; or (3) evidence the defense attorney failed to adequately represent the defendant (“ineffective assistance of counsel”) by making one or more unprofessional errors that prejudiced the defendant.
Unlike the direct appeal, the defense can investigate and present evidence of issues that did not appear in the trial record or were the subject of objections at trial. This process plays out initially before the same judge who presided over the trial (if he or she is still on the bench) who then makes a recommendation as to whether the defendant should get a new trial or punishment hearing. Unlike some states and the federal system where the trial judge has the power to order a new trial, Texas trial judges can only make a recommendation in any felony case where the defendant did not receive probation. The trial judge’s recommendation is then forwarded to the Court of Criminal Appeals, the body that will either accept or reject the recommendation made by the trial judge.
Depending on how long it took the defendant to file his writ of habeas corpus in state court, he or she may be able to renew their claims in federal court. While the chances of success in federal court, however, are slim, federal courts occasionally overturn a state court conviction
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Brian Wice Law
Criminal Defense Lawyer
Criminal Defense Lawyer
My Philosophy
Over the course of four decades as a criminal defense lawyer, I have handled more than 300 different appeals and post-conviction matters involving almost every legal issue imaginable. I have represented professional athletes, politicians, judges, lawyers, doctors, accountants, and most importantly, people just like you or your loved ones.
From the simplest driving while intoxicated cases to capital murders where the death penalty has been assessed, whenever I undertake the awesome and sometimes life-altering task of representing any client, I am reminded that, as the legendary Chinese military tactician Sun Tzu wrote, “Every battle is won or lost before it is ever fought.”
Because litigation is a zero-sum game, there is no substitute for hard work and preparation and there are no style points for finishing second. My philosophy and my promise to every client who reposes their trust in me is simple: no one will work harder to put you or your loved one in a position where the ultimate victory is attainable. You have my word.
