A defendant's right of appeal in a case in which the death penalty has been assessed is statutory, and is automatic, directly to the Court of Criminal Appeals in Austin.

No. The Court will render its decisions based solely on the evidence set forth in the appellate record, and the legal arguments presented by the parties in their briefs and oral arguments.

The court reporter will prepare the Statement of Facts of the testimony given at trial. The trial court clerk will assemble the transcript of the various documents filed during the course of the trial. When the transcript and statement of facts are filed with the Court of Criminal Appeals they will comprise the appellate record. The attorney representing the defendant will then file a written brief with the Court asserting points of error that he believes occurred during the trial. This office will respond to the defendant's brief by preparing and filing a written brief, attempting to demonstrate to the Court why there was no error in the trial court proceedings. The Court will then decide the disposition to be made of the appeal based upon the appellate record, the briefs filed by the parties, and oral argument that may be presented by either or both sides to the appeal. The Court of Criminal Appeals shall automatically review a judgment of conviction and sentence of death not later than the 60th day after the certification by the sentencing court of the entire record, unless the Court of Criminal Appeals extends the time for an additional period not to exceed 30 days for good cause shown. The Court of Criminal Appeals is to give priority to all death penalty cases.

It has been the policy of the Harris County District Attorney's Office to present oral argument to the Court of Criminal Appeals in all death penalty cases. The Court, following submission of the case after argument, will issue a written opinion either affirming (upholding) the conviction or reversing (overturning) the conviction, that is the finding of guilt and the death penalty assessed as punishment. The Court may also reverse only the death sentence and uphold the finding of guilt.

Oral argument is presented in the Texas Supreme Court Building located in Austin, Texas. The oral arguments are open to the public and anyone may attend.

Yes. The defendant can ask the Court of Criminal Appeals to reconsider its decision by filing a motion for rehearing. The defendant, essentially contemporaneously with his direct appeal to the Court, also has the right to file an application for habeas corpus relief with the Court of Criminal Appeals (see discussion, post conviction division). If unsuccessful, the defendant may seek relief in the United States Supreme Court by filing a petition for writ of certiorari or in the federal district courts by filing a petition for writ of habeas corpus.

Although the State's rights are extremely limited, it may seek a motion for rehearing in the Court of Criminal Appeals, or if the reversal is based upon the Court of Criminal Appeals' construction of United States Constitution, it may file a petition for writ of certiorari in the United States Supreme Court.

Yes. The defendant may seek relief in the United States Supreme Court by filing a petition for writ of certiorari or in the federal district courts by filing a petition for writ of habeas corpus. In addition the convicted defendant may file for habeas corpus relief in the Court of Criminal Appeals (see discussion of post conviction division).

Although there are no readily available statistics compiled to answer this question, it is fair to say that in excess of 90% of those convicted in contested trials will appeal their convictions, even if the sentence of the defendant was probated with community supervision being the only punishment assessed.

As with non death penalty appeals, the only thing that this office can do to expedite an appeal is to file its reply brief as promptly as possible. Each appeal is different, and there are many potential roadblocks, procedural as well as practical, to the expeditious disposition of an appeal.

In Harris County the affirmance rate, that is the rate of death sentences being upheld on initial review is in excess of 80%. When those cases that are reversed are later retried, that becomes nearly a 90% success rate.

In Harris County the affirmance rate, that is the rate of convictions being upheld, over the last five years has been in excess of 95%. Stated somewhat differently that means less than 5% of the defendants appealing their convictions are successful. In those statistically few instances where the conviction is set aside, a new conviction is generally sought and obtained except if the reversal was due to insufficient evidence being presented at trial. In these rare instances, we are unable to retry the cases due to the constitutional prohibition of double jeopardy.

No. A defendant sentenced to death is ineligible for bail during appeal of the death sentence

If the case has been reversed due to insufficient evidence having been offered by the state of the defendant's guilt at the first trial, constitutional principles of double jeopardy prevent the state from putting the defendant to trial again. If the reversal is based upon an error in the guilt or innocence stage of trial or on the basis of errors in both the guilt and innocence stage and the punishment stage of the trial the case is restored to its position before the former trial, that is, in effect, as if the former trial had never occurred. If the case is reversed on the basis of errors made only in the punishment stage of trial, however, the trial court shall commence the new trial as if a finding of guilt had been returned and proceed directly to the punishment stage of trial.