Appeals & Post-Conviction Relief

Appeals & Post-Conviction Relief

Being investigated for or charged with a crime is frightening enough. But it does not come close to the experience of having been convicted and facing incarceration or other life-altering consequences. You have pleaded guilty or a jury has returned an unfavorable verdict. Now what?

Many people who have found themselves in this position have turned to Brent Mayr to assist them in this troubling time. Brent Mayr is a Board Certified Criminal Defense Attorney with extensive experience in handling criminal appeals and other avenues of obtaining post-conviction relief in both state and federal court. 


One of the most valuable rights a person charged with a crime has is a right to a trial. But what happens when errors are made in the trial that affect the outcome? Just as valuable is the right to trial is the right to appeal. Every person who is convicted of a crime in Texas has the right to appeal their conviction. For a majority of those people, that right is waived when they enter their plea pursuant to plea bargain agreement. However, where there is a trial, there is often an appeal. Appeals are also seen when there is a contested matter that requires the trial court to rule in favor of one party. Whether it is an objection overruled at trial, a motion to suppress evidence that is denied, or other adverse ruling, appeals are generally focused more on what the judge presiding over the case has done and less so on what the jury does. 

Another way of looking at an appeal is looking at legal versus factual issues. Facts are typically decided by a jury and are rarely overturned on appeal. Instead, an appeal focuses more on what the trial judge did or did not do in terms of legal decisions and whether it affected the outcome of the case. While a trial lawyer is focused primarily on the facts in the case, the appellate lawyer is focused on the law. For this reason, it is important that a lawyer handling an appeal has a firm grasp of the law and exceptional legal skills. A good appellate lawyer must be able to identify the legal issues, know and be familiar with the law, and then be able to identify other cases and opinions with similar issues to make a compelling argument. 

Unlike a trial where the “action” takes place in the courtroom, the appellate process takes place almost entirely on paper. When a person appeals their case, the first thing that typically happens is that a record of the trial proceedings (or other proceedings in the trial court) is prepared. That is because the appeal is based solely on what is in that record; appellate courts will not typically consider “new evidence” not presented to the trial court. From that record, issues must be identified and then researched to determine the merit and potential level of success. The final step is then preparing the appellate brief, a lengthy document that sets out in writing the reasons for why a conviction should be set aside. Even though there is little time spent in an actual courtroom, an appeal can sometimes involve, on average, 50 to 100 hours spent doing research and writing. 

Once the brief is filed, the opposing side (the State or Federal government) is given an opportunity to respond by filing their own respective brief. After briefs are filed, the appeals court then takes the case under consideration. The court may sometimes allow the appellate attorneys to make oral argument before taking the case under consideration as a final opportunity to supplement their written brief or answer questions. 

Appellate Courts

The court that a case is appealed to differs in state court and federal court. 

In Texas state courts, from a trial court — whether county court for a misdemeanor or district court for a felony — an appeal goes to one of 14 Courts of Appeals that are located throughout the state. These courts generally have geographical jurisdiction meaning a case tried, for instance, in Harris County will be appealed to one of the two Courts of Appeals located in Houston. Those courts (Houston is the only Texas city with two Courts of Appeals; the Dallas-Fort Worth metroplex has one in Dallas and one in Fort Worth) will also hear cases on appeal from surrounding counties like Fort Bend, Brazoria, and Galveston counties. Each of these 14 Courts of Appeals have varying numbers of justices. When a case is appealed to these courts, three justices are randomly assigned to hear the case. When a case is submitted for review, those justices will vote and, if all three are unanimous, one of the justices will write an opinion that addresses the points of errors or reasons for overturning the judgment below. If the judgment is affirmed, that means that they have decided to not overturn the judgment. If the case is reversed, then that means that they have overturned the judgment of the court below and the case is usually sent back for either a new trial or new proceedings. If the three justices are not in agreement, one of the justices who is with the majority of two will author the majority opinion, while the dissenting justice will author a separate opinion explaining why he or she disagrees with the majority.

After an opinion is issued by one of these Courts of Appeals, the losing party may opt to take their case up to the next level, or the highest level court in the state of Texas for criminal appeals, the Texas Court of Criminal Appeals. The Texas Court of Criminal Appeals is the supreme court of Texas for criminal cases; the Texas Supreme Court is the supreme court of Texas for civil cases (Texas is one of two states in the country that has two high courts, Oklahoma being the other one). Whereas a defendant (or the State in certain instances) has an automatic right to appeal their case to one of the Courts of Appeals, no such right exists with the Court of Criminal Appeals. The Court of Criminal Appeals is a court of discretionary review, meaning that one must first petition the court to consider the case before it will then take it upon themselves to decide whether to overturn the Court of Appeals decision below. Generally speaking, the Court of Criminal Appeals will only review cases that have significant statewide impact or where there is a conflict between the decisions of the Courts of Appeals below. Stated differently, while thousands of defendants petition the court to review their case each year, only 100 or so or taken in for consideration.

If the Texas Court of Criminal Appeals agrees to take a case into consideration, the case then goes through a similar process as in the Courts of Appeals, that is, briefs are submitted by both sides and then taken under submission or consideration by the entire court consisting of 9 judges. 

From the Texas Court of Criminal Appeals, a losing party has one last step: the United States Supreme Court. Like the Texas Court of Criminal Appeals, the United States Supreme Court is also a court of discretionary review. However, unlike the Texas Court of Criminal Appeals where thousands of people petition the court each year to hear their case, the United States Supreme Court is petitioned exponentially more and only exceptional cases involving federal constitutional issues are considered for review. 

On the federal side, the appellate court system is slightly different. After a defendant is convicted in a United States District Court, the right to appeal is to one of eleven circuit federal Courts of Appeals. These are also geographic; the Fifth Circuit, for instance, hears appeals from federal district courts in Texas, Louisiana, and Mississippi. From there, the only court above those Courts of Appeals is the United States Supreme Court and, as discussed above, it is a court of discretionary review. 

Writs of Habeas Corpus

Writs of habeas corpus are another form of relief that a person can seek after conviction, although it generally can only be sought after all appeals are exhausted. A writ of habeas corpus is a separate legal proceeding where a criminal defendant can challenge his or her confinement on the basis that it is in violation of some constitutional right. Writs of habeas corpus can rarely be used to challenge a violation of an evidentiary rule or statute; there must be some showing of a violation of constitutional rights.

One of the most common arguments raised in a writ of habeas corpus is ineffective assistance of counsel. They are also some of the most difficult cases to handle in the criminal arena. Not only do you have to worry about fighting the State who is doing everything they can to keep your conviction in place, but you are in all likelihood having to fight your previous attorney who is fighting to protect their reputation. The work involved is extensive as well. An attorney working on a writ has to essentially “reinvent the wheel,” going back to investigate the case and building a defense as it should have been done the first time to see what the previous attorney missed in terms of factual or legal investigation. Investigations alone may take several months or up to a year in many cases. Then, after investigation, comes the hard part: preparing the application and presenting that to a court in an effort to get it to recommend vacating the plea or conviction. 

Motions for New Trial

Another mechanism for challenging a conviction is the motion for new trial. It can be described as a “pre-appeal,” one last shot to convince the trial court to overturn a plea or conviction but also an opportunity to present evidence into the record for the Court of Appeals to review. 

What makes the motion for new trial so difficult is the limited amount of time in which they must be filed. In state court, a motion for new trial must be filed within 30 days from when the court imposes sentence. In federal court, the time is even shorter: 14 days (unless the motion is based upon newly discovered evidence in which case you have 3 years). Within that limited period of time, the attorney must investigate, research, and prepare the motion alleging all possible grounds for overturning the conviction or plea. Once filed, there may be a hearing where witnesses and additional evidence may be presented. If the motion is granted, the case returns to the point before the conviction. If denied, it may be appealed to the court of appeals. 

Brent Mayr is an Experienced Criminal Appeals Attorney with an Exceptional Level of Success

Brent Mayr is Board Certified in Criminal Law by the Texas Board of Legal Specialization, a distinction held by only 10% of Texas attorneys. It requires both an established level of experience and knowledge of criminal law and procedure in state and federal court. 

In law school, he won a national championship in appellate advocacy while, at the same time, clerking with one of Houston’s top criminal defense firms working on state and federal appeals. After law school, he accepted the prestigious honor of working for a judge on the Texas Court of Criminal Appeals as a briefing attorney. 

As a defense attorney, Brent Mayr has represented numerous individuals on appeal and filed several applications for writs of habeas corpus and motions for new trial, obtaining favorable rulings, overturning convictions, and obtaining new trials for several clients. Among some of his high profile successes:

  • Brent Mayr convinced a judge to grant a writ of habeas corpus vacating the plea and sentence of a police officer in East Texas who pleaded guilty to tampering with a government document. The case was appealed by the State, overturned by the Texas Court of Criminal Appeals, and sent back to the trial court to consider the remainder of the issues. In this second round, Brent Mayr managed to convince the judge to grant relief again but on separate grounds. After the plea was vacated, the State dismissed all charges against the former officer. 
  • Brent Mayr convinced a judge in El Paso to grant a motion for new trial where the client, represented by other attorneys, pleaded guilty to intoxication manslaughter and was sentenced to 15 years in prison.
  • Brent Mayr successfully obtained four writs of habeas corpus for four separate clients setting aside their guilty pleas and sentences on the basis that their attorneys failed to properly advise them regarding the immigration consequences of their pleas. In every case, the State subsequently dismissed the charges against the clients. 

If you or a loved one has been wrongly convicted or inadequately represented by a previous attorney, Brent Mayr can help with the difficult task of correcting a miscarriage of justice on appeal or through other forms of post-conviction relief. Contact Brent Mayr today to schedule a consultation to discuss your case and examine your options. 

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