A direct appeal is when you ask the Court of Appeals to overturn your sentence because of a legal error that your judge made during your trial.
For example, if the trial judge excluded certain evidence that might have benefited you, or admitted certain evidence that harmed you, that ruling may be the basis for overturning your conviction.
Say that you are prosecuted for assault. You wish to offer a witness that will testify that you are a peaceful person. The judge refuses to let your witness testify. Or, say the state calls a witness that testifies that you are a violent person. Both examples might form the basis for an appeal that can overturn your conviction.
Or, say that the judge allowed a state’s witness to relate hearsay on the witness stand. Or, during jury selection, the judge seated a person onto the jury that your lawyer objected to. Those objections might constitute legal error and could be the basis for overturning your conviction.
The most important type of error is constitutional error. For example, the Fourth Amendment of the United States Constitution says that (with exceptions) the police cannot seize evidence from you without a warrant. The police seize drugs from you without a warrant (and one of the exceptions to the warrant rule does not apply). You are convicted for possession of a controlled substance. A basis for your appeal would be the violation of the Fourth Amendment.
Recently, a good source of error has been the jury charge—the document that the judge prepares for the jury instructing them how to decide your guilt or innocence and your sentence. For example, if the judge refuses your request to include a lesser included offense in the jury charge, that could be the basis for an appeal.
To appeal an error made during trial, the error must be “preserved.” Preserving error during trial basically means that your trial lawyer objected to the judge’s decision in a timely manner. The objection must also be recorded by the court reporter. A direct appeal usually only consists of objections found in the trial record.
One way to expand the record for the appeal is to file a motion for new trial. For example, say that you are convicted of aggravated assault. You believe that your lawyer represented you poorly by not finding witnesses that could have testified that you acted in self-defense. Since you have a constitutional right to effective assistance of counsel, you may ask the judge for a new trial based on your lawyer’s deficient performance. Since that information would not be in the trial record, you would need a hearing so that you can show your lawyer failed to call those witnesses.
Or, say that two weeks after trial, you find out the prosecutor withheld evidence that shows you were innocent. Withholding evidence that shows a defendant is innocent is a constitutional violation. You will need a hearing to show that the prosecutor withheld the evidence.
If the judge denies the motion for new trial, the transcript made during that hearing then becomes part of the record that the Court of Appeals can consider.
There are fourteen courts of appeals in Texas. An appeal from a trial court will go to one of them depending on your region. Because of its large size, Houston has two courts of appeals.
If you lose at the Court of Appeals, you may appeal to the highest court in the state—the Court of Criminal Appeals. Such an appeal is known as a petition for discretionary review.
Finally, if you lose at the Court of Criminal Appeals and your case contains a federal question, you may appeal the United States Supreme Court.
There are strict deadlines for the direct appeal. You must give formal notice to the trial court of your intent to appeal within thirty days of receiving your sentence. A motion for new trial expands the deadline to ninety days. A motion for new trial must be filed within thirty days of the sentence.
While your appeal is pending, you are eligible for an appeal bond if your sentence was less than ten years and not for an aggravated felony.