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Texas Criminal Appeals: strategic thinking on error preservation

 Posted on November 08,2019 in Appeals

One of the first questions clients ask me about appealing their criminal conviction is what issues can be raised.

My usual answer: it depends on what your trial attorney objected to. The points of error I raise are almost always limited by what the defense attorney did or didn’t do during trial. Below is a description of why objections matter, how they are made, and how a good appellate attorney can act strategically when dealing with poorly-made objections.

Why Objections Matter

With very few exceptions, appellate attorneys operate under two primary constraints:

  1. They can only raise issues that were “preserved” during trial (in other words things that the trial attorney stood up and said “objection” to in front of the court).
  2. They can only raise issues that appear in the record (the actual transcript of the trial).

(See my previous blog post on motions for new trial where I discuss methods and strategies for developing a record for incidents that occurred during the trial but were not recorded by the court reporter.)

How Attorneys Normally Preserve Error

Proper error preservation usually requires three steps:

  1. An objection from the trial attorney that
  2. specifically mentions what the legal problem is, and
  3. A ruling from the trial court on that specific objection.

But error preservation get can complicated. For example, objecting during jury selection requires making sure that your objection notes the legal problem, relates the legal problem to specific potential jurors, notes which of those potential jurors actually made it to the actual jury, and clarifies ____.

Additionally, there are different requirements for objections that try to keep evidence out verses objections to a trial court’s decision to not let something in. To keep something out you follow the steps highlighted above. To object to the trial court’s refusal to let some piece of evidence in — whether testimony, physical evidence, reports, etc. — you have to make a bill of exception. That means you ask the court to take the jury out of the courtroom so you can then present to the court reporter what you would have introduced as evidence if the trial court had ruled in your favor. That way the appellate court will know what you had intended to introduce. If no bill of exception is made, it’s nearly impossible to show prejudice!

Strategic Reasons to Raise Issues on Direct Appeal that May Have Not Been Properly Preserved

All that being said, what if the trial attorney doesn’t do a good job preserving error?

A recent oral argument taught me that it may be wise to raise the point of error even if might not have been not properly preserved. Why?

In order to be successful as a post conviction attorney where the odds are always stacked against you and the courts are committed to protecting convictions, you never take legal action or make legal arguments in isolation. You have to be strategic and think months or years down the road. This is especially true when it comes to arguing error preservation.

If you raise a point of error in your direct appeal that may have not been properly preserved, the appellate court can do one of three things. First, they can reject your argument as not properly preserved and not address the merits of the claim. Second, they can agree with you that error was preserved, even if the trial attorney did not do everything right. And third, the appellate court can say error was not preserved, and even if it was, the complained-of error wasn’t really erroneous (or subject to trial court discretion) or harmless.

Under the first scenario, even though you “lose” on direct appeal, you now have a higher court ruling that trial counsel was deficient in preserving a potentially serious error. This can be of great benefit down the road if your client decides to file a writ of habeas corpus.

Under the second scenario you get the merits of your claim addressed by the court and establish precedent for a more lenient standard of error preservation for future litigants and defendants.

Under the third scenario you just lose.

So, of the three potential outcomes, two are beneficial for both your client and for future defendants. Two beneficial outcomes out of three ain’t bad, especially in the post-conviction legal arena.

So, if trial counsel screws up error preservation, I say think strategically and argue it on direct appeal anyway. Sometimes you’ll lose, but when you prevail you benefit your client and potentially make it easier for future litigants to preserve error.

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