In Texas, the statute-based motion for new trial is the most efficient way to raise two types of error immediately after a conviction or guilty plea:
- Ineffective Assistance of Counsel and
- Newly-Discovered Evidence Favorable to the Defense
To be clear, there is no explicit list of what can and can’t be raised in a motion for new trial. I’ve used a motion for new trial (let’s call it the MNT) to effectively raise issues related to sentence length and prosecutorial misconduct. But for the most part, we use MNT’s to preserve issues related to defense attorney mistakes and introduce new material facts for the trial and appellate courts to consider.
After a Guilty Plea
Another important point: the MNT isn’t just for contested cases — they can be used to undue guilty pleas when the client had a mistaken belief about the consequences of his plea or the lawyers had an incomplete knowledge of relevant facts.
Example: a person pleads guilty to a DWI only a few days after arrest because he lives out of town and doesn’t want to come back for a second court date. He doesn’t know his blood alcohol level at the time of arrest. He doesn’t know the immigration/travel consequences of having a DWI conviction (and FYI they are significant, especially if your work takes you into the Middle East or Asia). This person wants to bust his plea and fight the case when he finds out his BAC is slightly below the legal limit. Can he?
An MNT that alleges involuntary plea based on ineffective assistance of counsel and new evidence — the BAC number — might do the trick. Drafting is critical here because the State will have good counter arguments that the defendant knew what he was doing — getting a quick plea to resolve the case without full discovery of the evidence — and the travel consequences were just “collateral.” When criminal lawyers use the word “collateral” they usually just mean unimportant. Eg — whether or not this hypothetical person can travel for work is unimportant. That’s how prosecutors think and talk. That a person could lose their livelihood means nothing to the State.
An effective MNT will articulate the human cost of the plea and make the consequences personal. Judges have broad discretion here, so a good attorney will anticipate the State’s objections and frame the motion as both a legally proper remedy and a personally fair way of correcting a mistake. I can win MNT’s because I humanize the client.
After a Trial
The classic MNT gets filed after a trial. Most defense attorneys just file a “boilerplate” motion that doesn’t allege any specific facts and is not supported by sworn statements. The motions are filed simply as “place holders” to extend appellate filing deadlines.
These motions always lose. And the defense attorney doesn’t care because it’s not his case anymore.
If you have a real issue to raise, make sure your lawyer gathers the necessary facts, gets sworn statements, and, most importantly, gets either a certified or uncertified copy of the relevant portions of the reporter’s record.
Time is Not on Your Side
You only have 30 days after verdict to file your MNT.
But the court reporters aren’t in a hurry. They’ve got lots of records to prepare and they will put your record at the end of the line. What’s the chance of you getting a nice certified copy of the entire trial record in time for your appellate attorney to review it? Slim to NONE. So how can this lawyer draft an effective motion for new trial?
Criminal appellate attorneys should (1) be in a hurry and (2) think creatively about getting their facts in a MNT. They have to do whatever it takes to figure out what happened during trial and what allegations they can make and support in their MNT. If the record isn’t ready, then ask the court reporter to at least give you an uncertified copy. Who cares if there are type-0’s? Also: talk to the trial attorney immediately. Get feedback from her. Are you Monday-quarterbacking her work? Yes, but they know the drill. Convictions are a big deal and lawyers know their work has to be checked. That’s how the system works. An ethical trial attorney will be candid about what went right or wrong during trial. I always get their feedback and use it in crafting the MNT.
So, once the appellate attorney has used his outside-the-box thinking to draft and support his MNT, what happens?
The MNT has to be presented to the trial court. The court can then do one of three things: deny the motion, grant the motion, or ignore the motion. After 75 days of ignoring the motion (dated from the day of sentencing), the MNT expires and is denied by inaction.
Do you get a hearing? That’s up to the judge. Courts have discretion to hold a hearing and can grant or deny a motion solely on the basis of the sworn statements attached to the motion. In my experience, you only get a hearing if you have alleged specific, actionable acts of ineffective assistance or new evidence of recent impropriety by a juror or key witness. Even then, there are no guarantees. Judges love to protect jury verdicts.
Can you appeal the stuff alleged in the MNT? Yes. It’s part of the record now and can go up to the appellate court. This gives you another “bite at the apple” if you have good facts developed in your supporting documents and hopefully in a hearing. In other words, the appellate court can say yes even if the trial court has said no.
We win! Now what?
If your MNT is granted you get what you literally asked for: another trial. That means you do everything again — pick a jury, put on evidence, get a verdict, and maybe get sentenced if you’re again convicted.
That doesn’t sound fun, does it? But maybe your lawyer can use the granted MNT as leverage to get you a favorable plea deal or a dismissal. But that, my friends, is a fact-specific situation that you must discuss with your counsel of choice.
Go find the best appellate attorney you can afford and have him or her get to work!