Appealing from Some of Texas's Lowest Trial Courts- Justice Courts

The number of justices of the peace in the 254 counties of Texas varies greatly. 134-souled Loving County has only one. Justices of the Peace need not be attorneys. The largest county, Harris County, with county seat Houston, has eight justice of the peace precincts with two justices for each precinct. The Texas Constitution grants justice courts original jurisdiction of the trial of fine-only criminal offenses and exclusive jurisdiction of civil matters in which the amount in controversy is less than $200 and whatever other jurisdiction is additionally granted by law.

The highest elected official in any Texas county is the county judge. Early in Texas history, a county judge was a person of all work who presided over the work of a commissioners' court of four elected officials-- commissioners-- each of whom was responsible for a quarter of the county's land area. The judge and the commissioners managed the county's finances together, and additionally, a county judge presided over a county trial court ruling on misdemeanors, small civil matters, and probate matters. Now County Judges in large counties do not hold that latter court, but delegate that work to one or more county-courts-at-law created by the legislature. Additionally, large counties have dedicated probate courts, created by the legislature.   Whether or not a county judge holds a law court, such a judge, like a justice of the peace, need not be an attorney. County-court-at-law and probate judges do have to be attorneys as district court judges must.

"Bob, this is all fascinating, but what does it have to do with appellate law?" With a few exceptions-- always read the statute creating the court you are appearing in-- the rule about appealing judgments in these courts is that you have a right to a de novo trial in a court presided over by a lawyer judge. Usually, you go from a justice court to a county-court-at-law. You post a bond a day or less after the justice court proceeding and you get a de novo trial-- a trial "of newness"-- a do-over, the only disadvantage that the loser of the first trial bears is that the appeal bond will pay off the winner below if the bond filer loses. In civil matters, the judgment of the trial de novo can often be appealed to a court of appeals like any other civil case heard by the county-court-at-law. In a criminal matter, only federal or state constitutional matters may be taken up to a court of appeals.

Which Criminal Defendants Have the Right to Appointed Counsel at Trial and on Appeal?

The Sixth Amendment guarantees indigent defendants, in state and federal criminal proceedings, appointed counsel in any case in which a term of imprisonment is imposed.United States v. Bryant, 136 S. Ct. 1954, 1958, 195 L. Ed. 2d 317 (2016) The federal constitution imposes on the states no obligation to provide appellate review of criminal convictions. McKane v. Durston, 153 U.S. 684, 687 (1894). Where an indigent has only one appeal, that person has a right to counsel as to that appeal. Douglas v. Cal., 372 U.S. 353, 357 (1963). A state need not appoint counsel to aid a poor person in discretionary appeals to the State's highest court, or in petitioning for review in the Supreme Court of the United States. Cf. Ross v. Moffitt, 417 U.S. 600, 615 (U.S. 1974).

What Happens to Trial Exhibits on Appeal?

In Texas state practice, admitted trial exhibits are attached to the court reporter's record. Where an exhibit is very valuable (e.g. a bearer bond) or dangerous (a firearm) or very bulky (an image as large as a billboard), trial judges will often grant motions for images of exhibits to be substituted for the exhibits themselves.
At the court reporter's request, the trial court clerk must give all original exhibits to the reporter for use in preparing the reporter’s record. Unless ordered to include original exhibits in the reporter’s record, the court reporter must return the original exhibits to the clerk after copying them for inclusion in the reporter’s record. If someone other than the trial court clerk possesses an original exhibit, either the trial court or the appellate court may order that person to deliver the exhibit to the trial court clerk.
 If the trial court determines that original exhibits should be inspected by the appellate court or sent to that court in lieu of copies, the trial court must make an order for the safekeeping, transportation, and return of those exhibits. The order must list the exhibits and briefly describe them. To the extent practicable, all the exhibits must be arranged in their listed order and bound firmly together before being sent to the appellate clerk. On any party's motion or its own initiative, the appellate court may direct the trial court clerk to send it any original exhibit.

Effective September 1 The Texas Supreme Court Changes Juvenile Certification Appellate Practice

The Texas Supreme Court ordered that juvenile certification appeals be accellerated and that juvenile courts tell a respondent of that person's right to an immediate appeal, effective September 1.  A juvenile court certifying a juvenile to stand trial as an adult must must tell the juvenile and the juvenile's attorney orally on the record in open court and in writing of the right to immediately appeal the certification decision and the accelerated nature of the appeal. As far as reasonably possible, those appeals are to get to final disposition within 180 days.

Got a Texas State Trial Court Default Judgment? If It's Not Perfect, You Won't Get to Keep It.

Appellate courts don't like trial court default judgments, at least, not in Texas. And Texas state appellate courts have special procedures to reform them. Texas Rule of Appellate Procedure 30  provides that a party that-- basically-- doesn't participate in the trial litigation or timely objects under the usual appellate schedule (That is, Tex.R. App. Proc. 26.1.) has six months to file an appeal-- called a restricted appeal. If reversible error is clearly present on the face of the record, then the default judgment is undone. It doesn't take much error viz. Insurance Co. of the State of Penn. v. Lejeune, 297 S.W.3d 254 (Tex 2009) (per curiam) (clerk's endorsement of the return of citation lacked the time of service).
North American Marine, Inc. v. Charles Heard Law Firm. No. 09-15-00034-CV, (Tex. App.-- Beaumont, Apr. 9, 2015) (mem. op.) (no pet. h.)

So You Want to Appeal a Texas State Summary Judgment?

A trial is a determining of controverted facts and law. Usually both sides agree on the law, but don't generally agree on the facts. If the facts of a case are agreed, both sides can submit their view of the law to a judge, and the judge can issue a final judgment. (Why can't one of the sides get a jury?  Because a jury's job is to decide fact disputes. No fact disputes? Then no need for (and no right to) a jury.)
Let's say a lawsuit is filed Lawsuit A-- one side says that a factual dispute exists between the parties about one of the elements of a case  and the other side says that any factual disputes are not about any of the elements of the cause of action. That other side asks for the judge to rule that there are no factual disputes about any of the elements of the case, so that no factual determination is required, just a final decision on the law. If the judge grants the motion that there are no factual disputes in the case. The judge will enter a final judgment which one or the other parties may appeal. In Lawsuit B a judge may grant a summary judgment because a defense is proved as a matter of law such that no trial is needed. In Lawsuit C a state summary judgment that can be granted because-- after a reasonable time for discovery a side propounding a cause of a cause of action or a vital defense have not come up with more than a scintilla of evidence in favor of the element or defense..
There need not be oral hearings as to whether or not a summary judgment motion or similar motion should be granted.
As you recall, generally, judgments can not be appealed unless they are final.
Really good trial judges check the pleadings and interlocutory rulings and nonsuits of all parties and make sure not to close a trial file unless every issue for every party has been adjudged or dismissed. Judges often put in a judgment that they intend to be final and appealable "This is a final judgment," and "All relief not granted is denied." This last sentence is especially clever: any element of the litigation or any party in the litigation that might have been forgotten now has an appealable ruling!
You can imagine that frequently, the party that wanted the trial might want to object or a party to a law dispute may want to appeal the trial court's law ruling.
As in any non-interlocutory appeal, if the lower court's judgment is not final, the higher court lacks jurisdiction over the matter. If the higher court finds that it does not have jurisdiction over your matter then you case is on the fast track to Loserville.
Surprisingly, there is a line of authority that says that determining the finality of a judgment should not be a big deal. That, for example, if a lower court judgment is issued under circumstances that would make a reasonable outsider think that the judgment is supposed to be a final judgment-- that is, at the end of super-comprehensive, but not completely comprehensive, bench trial or jury trial, that even though it left out some early parties who dropped out of the case, though technically some of their causes of action were still pending, evidence of finality is close enough for government work. I know that I am not the only appellate lawyer to think that these cases make bad precedent. If it is not as clear as glass whether or not a court has jurisdiction, we lawyers cannot give reliable advice to our clients, and it opens appellate courts to the appearance of requiring absolute finality for disfavored parties and giving a pass to favored ones.
Practice tip one: if a proposed appeal comes to your desk less than 30 days after the judgment, do what the trial judge should have done in the first place: check the pleadings and interlocutory rulings and nonsuits of all parties and check whether every issue for every party has been adjudged or dismissed. If any have been left out, consider a motion for a trial on those issues or a motion to dismiss those issues, or even a motion for summary judgment. Consider this even if the judgment proposed to be appealed is old, even very old. Remember, generally, the appellate deadlines do not begin to run until there is a final judgment, and if a suitable judge or panel rule that the judgment is not final, the clock has not begun to run at all. 
 It is highly unlikely that any harmful error will be found nor any appellate relief granted unless the appellant made it clear in a timely written response to the motion for summary judgment what the error. If the motion for summary judgment is unclear, special exceptions must be filed to the motion. In response to the special exceptions for the motion, the judge may give the summary judgment movant a chance to replead.  Sometimes the movant repleads, and the respondent specially excepts to mistakes that were not fixed. A motion will generally be dismissed only if repeated efforts fail to produce understandable and reasonably complete motion points fail.

Appealing Texas State Straight Probation and Deferred Adjudication

How could it happen that a Texas state defendant could end up guilty of a felony or a class A or B felony, not go to prison or jail, and yet be able to appeal the case?
A capital felony conviction results in either death, life without parole, or, if the offense were committed when the defendant was less than 18 years old, life with the possibility of parole. Violation of city or county ordinances or class C misdemeanors are fine-only offenses.
There  are three ways to be guilty of imprisonment, state jail or county jail offenses and not end up in prison, state jail or jail: straight probation, deferred adjudication and deferred prosecution.
In straight probation, the defendant pleads either no contest (also known as nolo contendere) or guilty, and the judge finds the defendant guilty, but gives a sentence for a fixed period probated for a particular time. In a case like this the defendant has a conviction on record, but if probation is not violated for the time set by the court, the defendant will never go to prison. (Related to this, but a little different is shock probation-- the defendant is imprisoned for a time-- often 180 days-- and then released on probation so as to show the defendant what the alternative to being a good probationer is.)
Deferred adjudication is when the defendant pleads as above, but instead of the judge finding the person guilty at that time, the judge accepts the plea, putting off deciding (adjudicating) the case until some date in the future (usually a much longer time than a defendant would get in straight probation). If the defendant does not violate the probation until that date in the future, then the court will dismiss the case at that date. The great advantage of deferred adjudication is that, if successful, the defendant can truthfully claim to never have been convicted of a crime, at least as far as the State of Texas is concerned. This is not true for the United States Immigration and Naturalization Service. It counts deferreds, even successful ones, as convictions for their purposes. Now if you've read carefully, you've seen that deferred adjudication does not give a sentence for a fixed period probated for a particular time. Deferred puts the defendant on probation for a particular time, but does not fix a sentence. It offers the defendant a blessing and a curse. If the defendant makes it through the probation, the blessing is that there is no State conviction. But if the defendant does not make it, then the court can give the full range of punishment from the minimum to the maximum. Deferred is intended to minister to good people who-- out of character--commit a criminal act. But for the habitual or professional criminal it is a trap-- expecting that they will change and will not reoffend-- they sign up only to end up with the maximum when substance abuse or mental illness or just being a smart-ass gets them back in jail or in prison.
Deferred prosecution is even better. If the defendant can get the State to agree, it will enter into a contract with the guilty-nolo pleading defendant for a fixed period and will not even file charges. Get through the period and that the State withdraws the charging instrument. A successful defendant can truthfully say that the charges were dismissed without further proceedings. Doesn't help with INS though, they count not whether a person is convicted or charged but whether they pleaded, so it's still a conviction with them. If the defendant fails, the contract is deemed to be violated, and they go on with the process from the beginning only it's a fair bet that the prosecutor's office likes the defendant a lot less. They feel that a failed deferred prosecution makes them look bad.
These paragraphs are a big introduction to a small subject. What can the defendant appeal?, On a straight probation, a defendant cannot appeal the finding of guilt. The defendant agreed to it. If any relief would be available on the guilt finding it would have to be on an application for a writ of habeas corpus. The finding of violation of probation could be appealed, but remember:

1. All of the violation findings have to be overruled; if one is left, that violation is still true, and the court is within its rights to violate the defendant.
2. Probation violations just have to be proved by a preponderance of the evidence not beyond a reasonable doubt-- a much lower standard that the usual criminal law standard.
3. The standard for review is the abuse of discretion standard-- the lowest one in appellate law.

The statute says that there is no right to a jury in a finding of probation violation.

In deferred adjudication, one cannot appeal the finding of guilt-- it was agreed. Beating that requires a hard-to-win writ application. It used to be that the finding of violation was unappealable, but the statute was changed six years ago. You have all the problems I enumerated above as to beating probation violations, but if there is a problem with the sentencing, that can be appealed in the same way as a punishment problem can be appealed in a trial.
What about appealing a judicial finding in a deferred prosecution that the defendant breached the agreement? It would not appear to be a final judgment-- the trial would be proceeding. If the bogusness of the breach is as clear as glass, a writ application might be appropriate. Not habeas corpus, appeal after final judgment is probably a sufficient remedy. I'm not sure that they would feel that way about mandamus or prohibition if the defendant was favored (e.g. a state official).