Post-Trial Proceedings

• Author: Robert Gill/Mark G. Daniel
• Pages: 443-474

21-1

CHAPTER 21

POST-TRIAL PROCEEDINGS

I. Motions for New Trial

§21:01 Statutory Law

§21:02 General Points

§21:03 Affidavit Requirements

II. Motions in Arrest of Judgment

§21:10 Statutory Law

§21:11 General Points

III. Notice of Appeal

§21:20 Statutory Law

§21:21 General Points

§21:22 Timeliness

§21:23 Sufficiency of Notice of Appeal

§21:24 Issues on Appeal

§21:25 Amendments

§21:26 Certification of Defendant’s Right to Appeal

§21:27 State’s Appeals

§21:27.1 Statutory Law

§21:27.2 Case Law

IV. Nunc Pro Tunc

§21:30 Statutory Law

§21:31 General Points; Definition and Purpose

§21:32 Requirements

§21:33 Denial of Motion

TEXAS CRIMINAL FORMS 21-2

V. Post-Trial DNA Testing

§21:40 Statutory Law

§21:41 General Points

§21:42 Requirements

§21:43 Bond for Certain Applicants

VI. Post-Trial Habeas Corpus

§21:50 Form Provided by the Court

§21:51 General Rules

§21:52 Time Credits

§21:53 Writs Based on Scientific Evidence

§21:53.1 Statutory Law

§21:53.2 Case Law

VII. Forms

Form 21-1 Motion for New Trial

Form 21-2 Defendant’s Brief in Support of Motion for New Trial

Form 21-3 State’s Controverting Affidavit

Form 21-4 Motion in Arrest of Judgment

Form 21-5 Trial Court’s Certification of Defendant’s Right of Appeal

Form 21-6.1 General Notice of Appeal

Form 21-6.2 Notice of Appeal From Plea-Bargained Case

Form 21-6.3 State’s Notice of Appeal

Form 21-7.1 State or Defendant’s Designation of Record on Appeal

Form 21-7.2 State or Defendant’s Request for A Statement of Facts for Appeal

Form 21-8 Trial Court’s Order and Appointment of Appellate Counsel

Form 21-9 Waiver of Appeal

Form 21-10 Withdrawal of Notice of Appeal

Form 21-11 Defendant’s Motion for Nunc Pro Tunc of Judgment

Form 21-12.1 Motion for Post-Trial DNA Testing

Form 21-12.2 Motion for Database Comparison

Form 21-13 Defendant’s Brief in Support of Motion for Post-Trial DNA Testing

Form 21-14 Trial Court’s Findings and Conclusions on Post-Trial DNA Testing

Form 21-15 Motion for Writ Bond After DNA Testing

21-3 POST-TRIAL PROCEEDINGS §21:01

I. MOTIONS FOR NEW TRIAL

§21:01 Statutory Law

Tex. Code Crim. Pro. Art. 40.001. New Trial on

Material Evidence

A new trial shall be granted an accused

where material evidence favorable to the

accused has been discovered since trial.

Tex.R.App.Pro. 21.1. Definitions

(a) New trial means the rehearing of a

criminal action after the trial court

has, on the defendant’s motion, set

aside a finding or verdict of guilt.

(b) New trial on punishment means a

new hearing of the punishment stage

of a criminal action after the trial

court has, on the defendant’s motion,

set aside an assessment of punish-

ment without setting aside a finding

or verdict of guilt.

Tex.R.App.Pro. 21.2. When Motion for New Trial

Required

A motion for new trial is a prerequisite to pre-

senting a point of error on appeal only when

necessary to adduce facts not in the record.

Tex.R.App.Pro. 21.3. Grounds

The defendant must be granted a new trial,

or a new trial on punishment, for any of the

following reasons:

(a) except in a misdemeanor case in

which the maximum possible punish-

ment is a fine, when the defendant

has been unlawfully tried in absentia

or has been denied counsel;

(b) when the court has misdirected the

jury about the law or has committed

some other material error likely to

injure the defendant’s rights;

(c) when the verdict has been decided by

lot or in any manner other than a fair

expression of the jurors’ opinion;

(d) when a juror has been bribed to con-

vict or has been guilty of any other

corrupt conduct;

(e) when a material defense witness

has been kept from court by force,

threats, or fraud, or when evidence

tending to establish the defendant’s

innocence has been intentionally

destroyed or withheld, thus prevent-

ing its production at trial;

(f) when, after retiring to deliberate, the

jury has received other evidence;

when a juror has talked with anyone

about the case; or when a juror became

so intoxicated that his or her vote was

probably influenced as a result;

(g) when the jury has engaged in such

misconduct that the defendant did not

receive a fair and impartial trial; or

(h) when the verdict is contrary to the

law and the evidence.

Tex.R.App.Pro. 21.4. Time to File and Amend Motion

(a) To File. The defendant may file a

motion for new trial before, but no

later than 30 days after, the date

when the trial court imposes or sus-

pends sentence in open court.

(b) To Amend. Within 30 days after the

date when the trial court imposes or

suspends sentence in open court but

before the court overrules any pre-

ceding motion for new trial, a defen-

dant may, without leave of court, file

one or more amended motions for

new trial.

Tex.R.App.Pro. 21.5. State May Controvert; Effect

The State may oppose in writing any rea-

son the defendant sets forth in the motion

for new trial. The State’s having opposed a

motion for new trial does not affect a defen-

dant’s responsibilities under 21.6.

Tex.R.App.Pro. 21.6. Time to Present

The defendant must present the motion

for new trial to the trial court within 10

days of filing it, unless the trial court in its

discretion permits it to be presented and

heard within 75 days from the date when

the court imposes or suspends sentence in

open court.