“While There Is A Soul In Prison, I Am Not Free.

Rarer and Weirder than a Platypus: Texas Court of Criminal Appeals

No other state has one.  This court has final jurisdiction “in all criminal cases of whatever grade….”  All cases where the client got the death penalty are appealed directly to the Court of Criminal Appeals, but other cases pass through the Courts of Appeals first.   The Court of Criminal Appeals can issue direct writs including habeas corpus and mandamus.

Differently put, the Texas Supreme Court does not hear criminal cases.  The Court of Criminal Appeals does.  Is this good?  Well, I’m used to it, so it seems normal.  One advantage I see is that this escapes the problem that most courts with civil and criminal jurisdiction turn the criminal cases into a neglected and sometimes abused stepchild.  (One interesting inquiry is how much the justices are tempted by campaign contributions:  Texas Supreme Court, a lot.  Texas Court of Criminal Appeals, almost not at all.)

When I began practicing law, most criminal cases were appealed directly to the Court of Criminal Appeals.  So, if you had even a small case, the next stop was Austin.  That was exciting.  Courts of Appeals did not receive jurisdiction over Criminal Cases until 1981.  This has not worked out so well.  The criminal decisions in the Courts of Appeals have become a morass of conflicts between jurisdictions, unpublished cases, and disregard of precedent.  I once had a retired 13th Court of Appeals Justice who was sitting as a trial judge in a felony case, that he did not consider decisions from other Texas Courts of Appeals except his own, because those other courts rarely got it right.  I understood his point.

One example that signals the failure to give a meaningful appeal in the courts of appeals is the large number of cases listed Do Not Publish.  This practice is prohibited by the rules in civil cases.  Another example is how few oral arguments are heard in criminal cases.  Again, civil cases are treated as more important.  Another example is the hair-splitting rulings on whether the right law was stated in the objection.  Another is the insistence on declaring almost every mistake “harmless.”  It is no wonder many prosecutors and judges do not learn the law.  No matter what they may do wrong, there are no consequences.

But if the intermediate court gets it wrong, won’t the Court of Criminal Appeals fix it?  Usually not.  Because the Court of Criminal Appeals only accepts 12% of Petitions for Discretionary Review, many (most?) Defendants are denied a right to any meaningful review as to whether they got a fair trial.

What is to be done?  Neither the United States nor the Texas Constitution expressly grant the right to appeal.    I know this is hard to believe, but look at the 2022, Court of Criminal Appeals Decision, Ex Parte Castillo.  Texas does give us a limited right to appeal Texas Code of Criminal Procedure Article 44.02, and then only in certain situations with the permission of the trial judge.  Right now, any help we may hope to get in Texas rests with Article 44.02.