The Intake Division is generally responsible for the coordination and review of all felony cases and Class A & B misdemeanors filed with our office by the various law enforcement agencies in Montgomery County. The Montgomery County District Attorney's Office (MCDAO) handles the prosecution of offenders arrested by police agencies or suspected of committing crimes by the police. The MCDAO generally does not conduct criminal investigations, as that is the responsibility of law enforcement. Any citizen wishing to report a past crime should contact the police agency that has jurisdiction. All emergencies should be reported to 911 immediately. Police officers who have arrested an individual in Montgomery County prepare an arrest record at the jail. This document is then used by prosecutors to generate a legal document called a complaint and information.
In addition, police officers prepare offense reports which are also forwarded to the Intake Division for consideration of charges. Police and citizens do not file charges or press charges. That is within the exclusive purview of prosecutors. In some occasions, prosecutors may request additional information from police and witnesses before accepting a case. Misdemeanor cases are filed with the County Clerk so that charges can proceed in one of the County Courts at Law. Once the paperwork is filed with the County Clerk, the court records are generally considered public records and are available for review. Police Reports are not considered public records. The procedure for felony cases is substantially similar to those in misdemeanor, except the records are filed with the District Clerk. Some felony cases may be presented to the Grand Jury for consideration of charges rather than have a complaint and information filed.
The Grand Jury’s task is to determine whether there is probable cause to believe that a person has committed a criminal offense. It is not the Grand Jury’s job to determine whether the legally admissible evidence will be sufficient to prove guilt beyond a reasonable doubt, that task will later be performed by the district court and possibly a jury chosen for that purpose. The Grand Jury is impaneled by random selection like a typical trial jury. If at least nine members concur in finding probable cause, then the foreman signs an indictment and delivers it to the judge or the clerk of the court and charges then proceed in one of the District Courts. If nine members do not concur in voting for an indictment, then there is no indictment returned.
The Intake Division is also involved in screening and participating in Montgomery County’s two diversion programs for drugs and alcohol. Lastly, the Intake attorneys assist law enforcement agencies with questions they may have prior to filing a case with our office and in preparing search and/or arrest warrants. The Intake Division is responsible for the vast majority of cases.
Bill Delmore, a career prosecutor with more than thirty years of experience, serves as chief of the Legal Services Bureau. A graduate of the University of Texas and the University of Houston Law Center, Delmore clerked for the Texas Court of Criminal Appeals and then joined 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 chief of the Appellate Division; and as 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. Delmore has authored more than 600 appellate briefs, and he has handled numerous capital murder cases in which the death penalty has been imposed. He has represented the State of Texas in several Texas courts of appeals, the Texas Court of Criminal Appeals, the Supreme Court of Texas, the United States Court of Appeals for the Fifth Circuit, and the Supreme Court of the United States. Delmore serves as chief of the Appellate Division, and he also serves as special counsel to the district attorney, handling petitions for expunction and nondisclosure, Public Information Act requests, civil discovery, fugitive extradition and other miscellaneous duties assigned by the district attorney.
The district attorney’s Appellate Division prosecutors and paralegal 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.
Appellate Division FAQ’S
How long do criminal appeals take?
It’s 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 Supreme Court of Texas), 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 seek 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 inmates with mental retardation could not be executed, many death row inmates filed new habeas corpus applications raising mental retardation issues that required substantial investigation and testing.
The Legal Services Bureau of the District Attorney’s Office consists of personnel assigned to the Intake Division and the Appellate Division. These bookend divisions play critical roles at the start and the conclusion of criminal cases.
Legal Services Bureau Helpful Documents & Links: