What does it mean to appeal?

Asked 6 months ago - Nazareth, TX

My husband recently was found by a jury guilty to recklessness injury to a child or just injury to a child. The jury made the decision to sentence him 2 yrs TDCJ. The attorney he had at the time did an appeal but then the attorney back out and no longer is m husbands attorney.He was given another attorney and this one is still doing the appeal.What does this mean and will it make a difference in my husbands sentence.I don't understand what a appeal is and if this is a good or bad things.I would like to know exactly why this is being done and how it works.Thank you for your time and advice is greatly appreciated

Attorney answers (3)

  1. M Elizabeth Gunn

    Contributor Level 18

    4

    Lawyers agree

    Answered . The changing out of the attorneys is standard. That's done partly just in case his trial counsel screwed something (obviously, another attorney is both more likely to realize there was a mistake made and also more likely to be able to take an unbiased look at the situation when considering whether to call attention to any noted mistakes), and Because most criminal defense attorneys don't handle appeals. It's been awhile since I had to fill out the paperwork for all that, but I, for example, am on my county's appointment list to do felony appeals, and I think I only qualified for that because I handled felony appeals as a prosecutor for many years before I went into private practice. Someone without that appellate experience wouldn't qualify for appointment to a felony appeal, so the good news is that whoever the judge picked presumably does have that experience.

    As far as whether the appeal will make a difference in his sentence, the answer is no. That's not how appeals work--the appellate court can't do that.

    I can't tell from what you've put here exactly what kind of injury to a child case this was. That's a complicated statute with a lot of possibilities. He either actually got the minimum sentence legally possible for the offense (if it involved serious bodily injury and was charged as a second degree felony, subject to 2-20 years TDCJ). or he got the maximum (if it was just bodily injury, charged as a state jail felony, subject to 180 days-2 years in a TDCJ state jail). Regardless, the appellate court doesn't have the legal option to change his sentence (they'd have to overturn the conviction and the case would be retried).

    In your husband's case, if he's got a second degree felony case, he should know that he actually runs the risk of getting a GREATER sentence if his case is overturned on appeal and gets retried. That possibility is something he definitely needs to discuss with his appellate attorney, because unless the case were to be overturned on very specific (and statistically very unlikely) grounds, he would be subject to another trial if he were to win his appeal, and while it's possible he might be acquitted next time, it's also possible he could get a greater sentence (if this is a second degree felony), and that would probably not make him too happy. Good luck.

  2. Timothy A. Provis

    Pro

    Contributor Level 15

    4

    Lawyers agree

    Answered . Dear ?,

    An appeal is a review, usually by 3 judges, of the basic fairness of the trial proceedings. The defendant's lawyer writes a brief in which he/she identifies legal errors in the trial proceedings and argues they so prejudiced the case against the defendant that he didn't get a fair trial. The State's ;lawyer answers that brief arguing there were no errors and if there were they did not make the trial unfair. The defendant's lawyer may answer the state's brief and rebut its arguments.
    After the briefing is concluded, there may be an oral argument before the 3 judges on the legal issues defendant's lawyer has raised. More often than not there is no oral argument scheduled and the appeal judges make their decision solely based on the briefs. The judges write a decision called an opinion in which they discuss the legal issues and decide whether they made the trial unfair or not. If they agree with defendant's lawyer then they reverse the judgment and send the case back for a new trial. If they don't agree, then they affirm the judgment and defendant then has the opportunity to ask a higher court to review the opinion.
    Now, if there was a legal error in sentencing, this can be raised as an issue on appeal, but it is relatively rare for there to be such an error. If the appeal judges find there was a sentencing error which prejudiced the defendant, then they can remand (send back) for resentencing or, depending on the error, correct it themselves.
    An appeal is universally regarded as a good thing, especially for criminal defendants, since it corrects errors in trial proceedings and makes courts fair.

    Yours sincerely,
    Tim Provis
    Appellate Counsel
    Member: U.S. Supreme Court Bar

  3. John Douglas Lloyd

    Pro

    Contributor Level 15

    1

    Lawyer agrees

    Answered . An appeal is a good thing -- it's an opportunity for your husband to challenge the legality of his conviction or sentence.

    Good luck to your husband.

    Disclaimer: No attorney client privilege is established by receiving an answer to your question on Avvo. This... more

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