The district attorney’s three appellate division prosecutors and their legal assistant handle the appellate litigation that arises out of Montgomery County criminal cases. Most defendants convicted after a trial appeal their convictions, and the appellate prosecutors defend those convictions by filing briefs and presenting oral argument in the various Texas courts of appeals and the Texas Court of Criminal Appeals. Their affirmance rate (the percentage of cases in which the judgment of conviction is upheld by the appellate courts) approaches 100% every year—a tribute to the experience and expertise of the Montgomery County trial prosecutors and judges.

In addition, the appellate division prosecutors represent the State in the habeas corpus proceedings in which prison inmates seek to obtain new trials, sometimes many years after their convictions. They also assist the trial prosecutors when complex legal issues arise during trial court proceedings.




How long do criminal appeals take?


          It is hard to say.  A simple case can be resolved in six months, but a complex appeal can drag on for several years.  It all depends on the amount of time required to prepare the court reporter’s record, the attorneys’ briefs and the appellate court’s opinions.  It also depends on whether the Texas Court of Criminal Appeals agrees to review the decision of the local court of appeals, which significantly lengthens the appellate process.


Does the defendant have to stay in jail during the appeal?


          The trial court can release the defendant on an appeal bond, unless he was convicted of certain violent or sexual offenses, or his punishment was assessed at imprisonment for ten years or more.


Does the appellate court hear evidence, like a trial court judge? 


          No.  In a direct appeal from a criminal conviction for an offense other than a Class C misdemeanor, the appellate court reviews the record of the trial and the attorneys’ briefs, in which one side complains of possible errors by the trial court judge, and the other side defends the fairness of the proceedings.  The appellate court then issues a written opinion, either affirming or reversing the judgment of the trial court.  


Can I attend the appellate court proceedings?     


          Yes, but only if the appellate court hears oral argument by the attorneys.  The courts of appeals schedule oral argument in only a small fraction of their cases, depending on whether they believe a discussion of the legal issues would be helpful.  The arguments can be somewhat technical, and no new evidence is heard.  


What happens if the defendant wins his appeal?


          A successful appeal by a defendant usually results in a new trial, and the defendant is transferred back to Montgomery County to be retried on the original charge.  In rare instances, an appellate court can find the evidence was insufficient to support the conviction and acquit the defendant, in which case the defendant cannot be retried because of the Double Jeopardy Clause.


If the defendant loses his appeal, is there another way he can challenge his conviction or sentence?


          Yes, anyone who is confined by the government can file an application for a writ of habeas corpus in a state or federal court, contending that they are illegally being held in custody.  A habeas corpus proceeding is different from an appeal, because the applicant can offer new evidence, in the form of affidavits or testimony, showing that he did not get a fair trial.


Is there a limit on how many habeas corpus applications a defendant can file?


          No, but a defendant who files a subsequent writ application must show that he could not have raised an issue in a previous application or that he is actually innocent of the crime, or the appellate courts will refuse to consider the subsequent application.


People say they will appeal “all the way to the U. S. Supreme Court.”  Can they?


          They can try, but the Supreme Court of the United States only agrees to hear a tiny fraction of the petitions that are filed in that court every year.  The same goes for the top Texas appellate courts (the Texas Court of Criminal Appeals and the Texas Supreme Court), which usually agree to hear only a few significant cases with issues of importance to other litigants in other cases. 


Why do death penalty appeals take so long?


          Every death penalty case results in both an automatic appeal to the Texas Court of Criminal Appeals, and a habeas corpus proceeding in that court.  The defendant can, and often does, seek a review of the state court decisions (on both the writ and the appeal) by the Supreme Court of the United States.  


          Then the defendant can start the process all over in the federal courts, by filing an application for a writ of habeas corpus in a U. S. district court.  If the federal court denies relief, that decision can be appealed to the U. S. Court of Appeals for the Fifth Circuit and then the Supreme Court of the United States.


          In rare instances, a death row inmate can start yet another round of habeas corpus litigation, if he learns of some issue that could not have been raised before.  For example, when the Supreme Court changed the law and held that mentally retarded inmates could not be executed, many death row inmates filed new habeas corpus applications raising mental retardation issues that required substantial investigation and testing.


          State and federal statutes now limit inmates’ ability to file successive writ applications and impose time limits for filing such applications, so the process has been substantially shortened.  Some death row inmates now exhaust their appeals in five years or less.  












Bill Delmore
Legal Services Division Chief  

The chief of the district attorney’s legal services division is Bill Delmore, a career prosecutor with almost thirty years of experience. A graduate of the University of Texas and the University of Houston Law Center, Delmore clerked for the Texas Court of Criminal Appeals before joining the Harris County district attorney’s office as a misdemeanor trial prosecutor. Before retiring from Harris County in September of 2008, he served as general counsel to the district attorney, John B. Holmes, Jr.; as the chief of the appellate division; and as the chief of the Legal Services Bureau.

In January of 2009, Delmore ended his brief retirement to join the staff of his former Harris County intern, Brett Ligon. In addition to Delmore’s appellate duties, he serves as special counsel to the district attorney, handling petitions for expunction and non-disclosure, requests for information under the Public Information Act, and other miscellaneous duties assigned by the district attorney.

Delmore has authored more than 600 appellate briefs, and represented the State in numerous capital murder cases in which the death penalty was imposed. He has represented the State (and his fellow prosecutors) in several Texas courts of appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the United States Court of Appeals for the Fifth Circuit, and the United States Supreme Court.







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