APPELLATE ISSUES

Formulation of the Case for Appeal, Preservation of Error and Perfection of Appeal;

Ethical Obligations; Effective Assistance of Counsel

PRESENTED MAY 11 & 12, 2018

AT

THE 8TH ANNUAL DEFINITIVE AD LITEM SEMINAR IN DFPS CASES

HOUSTON, TEXAS

William M. ThurslandAttorney At Law440 Louisiana St., Ste. 1225Houston, TX 77002Email: wmthursland@hotmail.comTel: (713) 655-0200 x 105

I.

OVERVIEW

Every lawyer who tries CPS cases should be acquainted with the appellate

process. The purpose of this paper is not to provide an exhaustive review of the rules

regarding appellate procedure or the preservation of error. Rather it is to give a general

overview of the procedures necessary to preserve error for appellate review and to

ensure that when representing a parent or child in a parental termination or child

protection case, our clients do not inadvertently lose their right to appeal.

II.

ADVISING CLIENTS

Appellate Process:

Our clients’ expectations of the relief offered by the appellate process are often

grounded in what they have heard and not in reality. They believe an appeal affords

them an opportunity to retry the case in front of a different fact finder. At a minimum,

they think it will give them a chance to prove the decision in the lower court was unjust.

Therefore, we should explain the kinds of issues that may be appealed and that generally

the law favors finality of judgments and disfavor reversals. In fact this tendency is

embodied in TRAP 44.1(a), which states that no judgment in a civil case may be

reversed unless the error complained of (1) probably caused the rendition of an improper

judgment; or (2) probably prevented the appellant from properly presenting the case to

the court of appeals. Unless, the client fully appreciates the difficulty in meeting this

standard, he or she may be overly optimistic about the likelihood of relief.

Right to Appeal & How to Withdraw:

Trial counsel should consider the possibility of an appeal from the very beginning

of the case. Clients must be informed of their right to appeal well before trial and again

after an adverse verdict. If your client receives an adverse verdict, be sure to inform him

or her of their right to appeal. Specifically, every client should know that they are

presumed indigent until all appeals are exhausted.

Most of our CPS clients are indigent and therefore entitled to a free appeal. As

their court appointed attorneys we continue to serve in that capacity until all appeals are

dismissed or we are relieved of our duties or replaced by another attorney after the trial

court renders a finding of good cause on the record. §107.016 TFC and In re P.M., 520

S.W.3d 24 (Tex. 2016)(“Mere dissatisfaction of counsel or client with each other is not

good cause. Nor is counsel’s belief that the client has no grounds to seek further review

from the court of appeals’ decision.”)

As a practical matter, trial counsel can satisfy the “good cause” requirement by

merely stating they do not practice appellate law or their current workload prevents them

from undertaking an accelerated appeal. A sample motion to withdraw, appoint

appellate counsel and confirm indigence with a proposed order is attached as exhibit

“A.”

Of course, counsel must consult the client before requesting to withdraw. Also,

the motion should be filed as soon as possible after the court pronounces judgment. Try

to have the motion heard on the entry date. Remember the appellate timetable begins to

run from the date the judgment is signed and the notice of appeal must be filed within

twenty (20) days.

Anders Procedures :

In certain cases, after thoroughly reviewing the appellate record, counsel

determines that there are no non-frivolous issues to assert on appeal. This situation

creates a problem for appointed counsel for several reasons. First, while we are

obligated to advocate for our clients, we are also ethically prohibited from urging

frivolous issues on appeal. This problem was addressed in the criminal context in Anders

v. California, 386 U.S. 738 (1967) and Bledsoe v. State, 178 S.W.3d 824 (Tex. Crim.

App. 2005)

Secondly, as appointed counsel for parents in parental termination proceedings,

we face an additional hurdle. Under §107.016(2) TFC, we serve in that capacity until all

appeals are exhausted, we are replaced, or permitted to withdraw for good cause.

Therefore, even if we file an Anders brief in the court of appeals or determine that a

petition for review would be frivolous, we are still required to pursue the appeal. In this

regard, In re P.M. provides guidance on applying the Anders procedures in parental

termination cases. Thus, due to the explicit language of §107.016(2) TFC unlike

criminal cases, appointed counsel in parental termination cases, must file their motion to

withdraw in the Supreme Court and not in the court of appeals.

While some attorneys may believe that filing an Anders brief requires less effort

than one in which points of error are raised, this is not true. We are not only required to

thoroughly examine the appellate record but also to act as an advocate for the client by

addressing every potential issue that could possibly be asserted.

The court of appeals conducts its own independent examination of the record. If

it concludes there is a non-frivolous issue to assert then it will instruct the trial court to

appoint another appellate attorney. For that reason, an Anders brief should only be filed

after carefully perusing the record and researching the applicable law. If there is any

“arguable” issue it must be raised and an Anders brief is not appropriate. Remember the

threshold is extremely low: the argument merely has to be non-frivolous.

III.

PROCEDURES TO PERFECT THE APPEAL

Filing the Notice of Appeal:

To invoke the jurisdiction of the court of appeals a timely notice of appeal must be

filed with the trial court clerk. TRAP 25.1(a) Appeals involving child protective cases

or those where a governmental entity seeks managing conservatorship are accelerated.

TRAP 28.4 This means the notice must be filed within 20 days of the final order being

signed. TRAP 26.1(b)

If you miss this deadline, the court of appeals may grant a 15-day extension upon

a showing of good cause. However, you should always remember that the consequences

for failing to file a timely notice of appeal are draconian; i.e. the appeal will be

dismissed for lack of jurisdiction. In re K.A.F., 160 S.W. 3d 923, 927 (Tex. 2005)(“ in an

accelerated appeal, absent a rule 26.3 motion, the deadline for filing a notice of appeal is

strictly set at 20 days after the judgment is signed, with no exceptions.”

Contents:

The contents of the notice are found in TRAP 25.1(d). In addition, to including

the information required in civil appeals generally, the notice must state whether it is a

parental termination case or a child protection case, as defined by TRAP 28.4; if the

appellant is presumed indigent and may proceed without advance payment of costs as

provided by TRAP 20.1(a)(3). A sample notice of appeal is attached as exhibit “B.”

2011 Changes:

In 2011 the rules pertaining to CPS appeals were dramatically changed. To briefly

recap for those who were practicing before that date, if the trial court appointed you to

represent an indigent parent that he or she was already found to be indigent. Therefore,

they are presumed to be indigent on appeal and executing a second indigence affidavit is

no longer required.

Mercifully the archaic rules set forth in former section 263.405 are gone. There is

no longer a fifteen-day requirement to file a “statement of points” on appeal, obtain

“frivolous findings” or file a motion for new trial.

As in any civil case you have 30 days to file a motion for new trial even though in

CPS cases you have only 20 days to file the notice of appeal. So it makes sense to file

your motion for new trial and obtain a hearing date as soon as possible. If you do not

want to do the appeal, file the motion for new trial at the same time you file the motion

to withdraw and appoint appellate counsel. A sample motion for new trial with a

proposed order is attached as exhibit “C.”

Obtaining the Record:

Within a few days of filing the notice of appeal you will receive notices from the

clerks of both the district and appellate courts. The notice from the district clerk will

instruct you to “immediately” file a designation of items on appeal. The one from the

appellate court will explain what actions you are required to comply with the appellate

rules.

There is some urgency here because both the clerk and reporter’s records must be

filed within 10 days of the date the notice of appeal is filed. TRAP 34 The trial and

appellate courts are jointly responsible for ensuring that the appellate record is timely

filed. Each extension must not exceed 10 days in an accelerated appeal. TRAP 35.3(c)

The extensions of time may not exceed 30 days cumulatively, absent extraordinary

circumstances. TRAP 28.4(b)(2)

Due to the accelerated deadline, it makes sense to review the clerk’s record and

speak with the court reporter before filing the notice of appeal. That way, counsel can

file the designation of items and the request for the reporter’s record contemporaneously

with filing the notice of appeal.

IV.

THE BRIEF

When to File & Contents:

Twenty days after the appellate record is filed appellant’s brief is due. Typically,

courts will grant one 20-day extension. Any further extensions will only be granted for a

“really” good cause. The appellee’s brief must be filed twenty days after the date the

appellant’s brief is filed. A reply brief, if any, must be filed twenty days after the date

the appellee’s brief is filed.

The requisites of briefs as well as the applicable timetables are found in TRAP 38.

It is a good idea to review this rule before you start to write the brief.

In your brief, you must inform the court if you are requesting oral argument. If

you have raised some novel issues then by all means request it. Although courts do not

generally grant oral arguments, when they do it means an issue has piqued their

attention. In that case, oral arguments provide the last opportunity to persuade the court

to rule in your favor.

Formatting and Word Counts:

Texas appellate courts now have unified rules regarding formatting and word

counts. TRAP 9.4 specifies the following:

(e) Typeface: A document produced on a computer must be printed in a

conventional typeface no smaller than 14-point except for footnotes, which must be no

smaller than 12-point.

(i) Length: (1) In calculating the length count every word except the following:

caption, identity of parties and counsel, statement regarding oral argument, table of

contents, index of authorities, statement of the case, statement of issues presented,

statement of jurisdiction, statement of procedural history, signature, proof of service,

certification, certificate of compliance, and appendix.

(2)(B) A brief and response in an appellate court in an original

proceeding: 15,000 words. In civil cases in court of appeals, the aggregate of all briefs

filed by a party must not exceed 27,000 words.

(2)(C) A reply brief 7,500 words.

(2)(D) 4,500 words in the Supreme Court for a petition and response in

original proceedings as well as for a petition for review and response. Same limit for a

motion for rehearing and response in an appellate court.

(2)(E) 2,400 words for a reply to a response to a petition for review in the

Supreme Court and a reply to a response to a petition for review in an original

proceeding in the Supreme Court.

(3) Certificate of Compliance: A computer generated document that is

subject to the word limit under this rule must include a certificate by counsel or an

unrepresented party stating the number of words in the document. The person certifying

may rely on the word count of the computer program used to prepare the document.

After Issuance of the Opinion:

The court of appeals can only reverse the trial court’s judgment in a civil case if it

finds not only that an error of law was committed but also that the error either caused the

rendition of an improper judgment or probably presented the appellant from properly

presenting the case in the court of appeals. TRAP 44 So establishing that the trial court

committed an error is not enough.

Once the court of appeals issues its judgment a party has 15 days to file either a

motion for rehearing and/or reconsideration en banc. Whether to file this motion

depends on the result and the issues presented in the case. For example, if there is a

dissent and the judgment is adverse to your client it may be advisable to file such a

motion.

If the court of appeals does not want an opinion to a set a precedent it is

designated as a “memorandum opinion.” Usually, this is done because the decision

merely applies well-settled law to the facts of the case. In recent years, slightly less than

half of opinions received this designation.

Supreme Court:

Either party has the right to file a petition for review with the Texas Supreme

Court. Last term the court granted slightly over 10% of the petitions it received.

Clearly, to have any hope of success the petition must present a meritorious issue.

Unless the court orders an earlier filing deadline, the petition must be filed within

45 days of the date the court of appeals rendered its judgment or the date the court of

appeals last ruling on a all timely filed motions for rehearing or en banc reconsideration.

V.

PRESERVATION OF ERROR IN DEFENDING A DFPS CASE

Introduction:

The rules regarding preservation of error can be very technical although at first

glance they appear straightforward. The Supreme Court noted that at times the

requirements of preserving error make “compliance a labyrinth daunting to the most

experienced trial lawyer.” State Dept. of Highways & Public Transp. v. Payne, 838 S.W.

2d 235, 240 (Tex. 1992)

It is well beyond the scope of this paper to address all of the myriad circumstances

whereby trial error can be preserved or waived. Counsel representing indigent parents in

CPS cases should be familiar with such topics as how to use responses to discovery

requests, particularly the TRCP 194 disclosure request, to exclude evidence; how to

challenge evidence which is predicated on a business record affidavit and how to

challenge the admissibility of public documents based on relevance. Those topics will

not be covered here. Rather it will cover the general requirements for preserving a

complaint for appellate review.

General Requirements:

Compliance with TRAP 33.1 is a prerequisite to presenting a complaint for

appellate review. The record must show that:

(1) the complaint was made to the trial court by a timely request, objection, or motion that:

(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and,

(B) complied with the requirements of Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and,

(2) the trial court:

(A) ruled on the request, objection, or motion, either expressly or implicitly; or

(B) refused to rule on the request, objection, or motion and the complaining party objected to the refusal.

TRAP 33.1(a) only sets forth the minimum requirements to preserve a complaint

for appellate review. In addition, trial counsel must comply with the Texas Rules of

Evidence and Procedure. For example, if you are trying to impeach a witness with a

prior inconsistent statement under TRE 613 you must first ask the witness if he made the

contradictory statement at a certain time and place and to a certain person. If this

predicate is not laid then error is not preserved for appellate review.

The Complaint Must Appear In the Record, Be Specific and Timely:

The appellate court cannot consider any complaints that do not appear in the

record. Nelson v. Neal, 787 S.W.2d 343, 346 (Tex. 1990) As noted above, the record

consists of the clerk and reporter’s records. The clerk's record includes the written

materials contained in the trial court's file such as pleadings, the final judgment, docket

sheet and notice of appeal. The reporter's record contains the transcription of the oral

proceedings occurring in the trial court.

Therefore, your specific complaint must be raised in a written request, objection

or motion contained in the clerk's record or if oral it must be transcribed by the court

reporter. Certain motions must always be in writing such as motions for continuance or

to transfer venue. TRCP 251 & 257 It follows that if your specific complaint is not

found in the appellate record it is waived.

TRAP 33.1 also requires that the request, objection or motion be timely and stated

“with sufficient specificity to make the trial court aware of the complaint.” Complying

with this section of the rule is not always easy particularly in the heat of trial. The

timeliness requirement entails using common sense. Similarly, the specificity

requirement is not subject to a precise definition. Nevertheless, it is clear that if you

object to a question posed by opposing counsel without stating the grounds or you state

the incorrect ground; i.e. based on relevance and the proper ground is hearsay, you have

not preserved error.

The Court Must Rule On the Record.

Making a valid objection is not enough. In order to preserve error, you must

obtain a ruling from the trial judge on your objection. The ruling does not have to be in

a “signed separate order” and it may even be ruled upon “implicitly.” TRAP 33.1(a)(2)

(a). If there is no signed order, the court's ruling may be found on the docket sheet or in

the reporter's record. Appellate courts have been grappling one a case-by-case basis

with the issue of whether a ruling is implicit. To avoid this problem always endeavor to

have the court make an express ruling on the record.

Unfortunately, if the trial court refuses to rule on your request, objection, or

motion, you must object on the record to the refusal in order to preserve error. TRAP

33.1(2)(B)

Preserving Error for Erroneously Excluded Evidence:

What happens when you are trying to admit evidence and the court rules that it is

inadmissible? TRE 103(a)(2) provides that a ruling excluding evidence is not reversible

error in the absence of an offer of proof. The offering party must make the “substance

of the evidence . . . known to the court by offer” unless it was apparent from the context

in which the questions were asked. The offer of proof need not be made at the time the

evidence is exclude but it must be made “before the court's charge is read to the jury.”

TRE 103(b).

The safest way to preserve error for the exclusion of evidence is to comply with

each of the following steps: (1) attempt during the evidentiary portion of the trial to

introduce evidence; (2) if an objection is lodged, specify the reason the evidence is

admissible; (3) obtain a ruling from the court; and, (4) if the judge rules the evidence

inadmissible, make a record, through a formal or informal bill of exception of the

precise evidence the party desires admitted. Richards v. Comm'n for Lawyer Discipline,

35 S.W.3d 243, 252 (Tex. App. - Houston [14th Dist.] 2000, n.p.h)

Practical Considerations:

Be specific and concise: If you state on the record, “Objection. Assumes facts not

in evidence” and the Judge responds “Overruled.” You have just preserved error. On the

other hand, if you merely state “Objection,” without stating the specific ground for your

objection, it is waived. Similarly, if you state the incorrect ground; i.e., your objection

is hearsay when it should have been relevance, you have also waived error.

Never argue with the Judge: This seems so obvious but it happens all too

frequently. After the Judge says “denied, granted, sustained or overruled” just keep

quiet. It's an argument you can’t win; it doesn’t help your client and does absolutely

nothing to preserve error on appeal.

To Object or Not to Object: There may be tactical reasons for not objecting to

inadmissible hearsay. For instance, a document being offered into evidence from the

DFPS caseworker's file may contain inadmissible hearsay that is beneficial to your

client. In that context, a hearsay objection is clearly unwarranted. In other situations,

you may decide to refrain from objecting to the offered inadmissible evidence because it

is simply immaterial in that it neither supports DFPS' case against your client nor

supports your client's defenses. In short, use objections judiciously.

The Judge Does Not Rule: This is as much of a diplomatic problem as a legal

one. Of course, you must first request as respectfully as possible for the court to make a

ruling. If the court still refuses you must then object to the refusal on the record.

Fortunately, our juvenile district court judges will make a ruling when requested.

EXHIBITS

NO. 2012-00000J

IN THE INTEREST OF § IN THE DISTRICT COURTJOHN DOE § OF HARRIS COUNTY, TEXASCHILD § 31_TH JUDICIAL DISTRICT

MOTION TO WITHDRAW, APPOINT APPELLATE COUNSELAND CONFIRM INDIGENCE

TO THE HONORABLE JUDGE OF SAID COURT:

JANE DOE, respondent, moves the court to permit her court appointed trial counsel to

withdraw, appoint appellate counsel and confirm she is indigent for the purpose of appeal and in

support thereof shows:

1. Respondent’s appointed attorney ad litem, John Lawyer, does not practice in the area of

appellate law and she requests that the Court appoint counsel to represent her on appeal. As additional

grounds, trial counsel’s current workload does not permit him to undertake an accelerated appeal at this

time.

2. The Court previously found respondent indigent. Her financial circumstances have not

changed since that finding was made and she is, therefore, presumed to be indigent for the purpose of

appeal pursuant to TRAP 20.1(a)(3).

WHEREFORE, JANE DOE, respondent, prays that this motion be in all things granted.

Respectfully submitted,

______________________John LawyerTBN: 00000001300 Texas St., Ste. 0Houston, TX 77002Email: lawyer@gmail.comTel: (713) 000-0000; Fax: (713) 000-0001

CERTIFICATE OF SERVICE

NO. 2012-00000J

IN THE INTEREST OF § IN THE DISTRICT COURT§

JOHN DOE § OF HARRIS COUNTY, TEXAS§

CHILD § 314TH JUDICIAL DISTRICT

ORDER APPOINTING APPELLATE COUNSELAND CONFIRMING THAT RESPONDENT IS INDIGENT

On this day the Court considered the motion to withdraw and appoint appellate counsel brought

by JANE DOE, respondent as well as to confirm the Court’s prior finding that respondent is indigent.

The Court after considering the evidence and arguments of counsel finds that good cause exists to

permit, John Lawyer, to withdraw as respondent’s attorney of record and appoint appellate counsel.

The Court further finds that respondent is indigent for the purposes of appeal; accordingly, it is

ORDERED that:

1. JOHN LAWYER be permitted to withdraw as respondent’s attorney of record and JANE

ATTORNEY is hereby appointed as her appellate counsel.

2. The Harris County District Clerk and the court reporter of this court shall, upon request of

respondent’s counsel and at no cost to respondent or her counsel, prepare and file with the Court of

Appeals the clerk and reporter’s records; and,

3. There shall be no charge to respondent or his counsel for any court costs and/or filing fees

assessed in the trial court or in any appellate court.

SIGNED: _____________.

______________________Judge Presiding

EXHIBIT “A”

NO. 2012-00000J

IN THE INTEREST OF § IN THE DISTRICT COURT §

JOHN DOE § OF HARRIS COUNTY, TEXAS §

CHILD § 31_TH JUDICIAL DISTRICT

NOTICE OF APPEAL

TO THE HONORABLE JUDGE OF SAID COURT:

JOHN DOE, SR., a respondent in the above entitled and numbered cause, files his notice of

appeal and in support thereof shows:

1. The trial court, cause number and style of this case are shown in the above caption.

2. The order being appealed is entitled Decree of Termination dated March 1, 2012.

3. The party desiring to appeal is John Doe, Sr..

4. This appeal is taken to the First or Fourteenth Court of Appeals at Houston, Texas.

5. A motion for new trial was timely filed in the trial court.

6. This appeal involves the termination of the parent-child relationship as defined by TRAP 24.4 that entitles respondent to an accelerated appeal.

7. Appellant is presumed indigent and may proceed without advance payment of costs as provided by TRAP 20.1(a)(3).

Respectfully submitted,

______________________John LawyerTBN: 00000001300 Texas St., Ste. 0Houston, TX 77002Email: lawyer@gmail.comTel: (713) 000-0000; Fax: (713) 000-0001

CERTIFICATE OF SERVICE

EXHIBIT “B”