As I shift from a complete focus on the topic of wrongful convictions from the first semester into a more applicable and wider ranging area of focus in criminal law and more specifically criminal appellate law as this relates closely with my work in wrongful convictions and is something that is on the surface very interesting to me, the first thing I needed to do was begin to set the foundation for my understanding of the field.  The book Nuts and Bolts of Appellate Practice produced by the Texas State Bar and updated periodically provides a way for lawyers or prospective lawyers to build an understanding of specific fields and topics with tips presented for how lawyers should approach appeals and ways they can improve for their clients.  This book pairs very well with the introductory approach I am taking to my learning of the topic in this first part of the semester.  

 

In this book, one of the first sections is focused on preserving error which

according to the book is one of the most important parts of setting up an appeal for success or to even have it be heard in the first place.  In trial court there are almost always going to be errors in the proceedings that could potentially be grounds for appeal if a case is lost in trial.  These potential errors that have the potential of adjusting the result of the case must be preserved by lawyers in order for it to even be considered as error in appellate proceedings.  This responsibility to identify and preserve errors in trial court is very difficult even for experienced lawyers to preserve all possible errors that could be brought forth during appeal.  Under Texas state law a lawyer must show that they made their complaint to the trial court via request, motion, or objection, it was timely asserted, you stated with sufficient specificity the grounds of your complaint unless the specific grounds were apparent from the context, and the trial court ruled upon the request.  This stands for the majority of possible errors with only a few exceptions that are highlighted and discussed in this chapter.  As can be seen, preserving error can be a tedious and difficult process because of the strict guidelines that govern how it must be done.  There are also additional specificity requirements that force for an objection or other motion to be made by the lawyer in order to completely, unquestionably, and objectively lay out the grounds for their complaint and what error they feel has been made.  If this is not completed correctly then the error is considered waived or accepted without the disapproval of either side.  Understanding preservation of error and how lawyers, both trial and appellate, go about preserving it is crucial to understanding criminal appellate law as a whole.  Without preservation of error, you simply do not have a case that is defendable or arguable.  

 

In preservation of error, there are many different situations or scenarios that all require different levels of objection or timely action in order to have error be considered preserved by the appellate court.  These different situations are derived from precedent set in previous court cases and so they are largely backed, time tested, and stable.  It is crucial for lawyers to understand what steps must be taken in each different situation.  For example, there are certain situations where error can be brought up for the first time during appeal.  One instance where this comes into play is if there is fundamental error in the court.  The state highlights subject-matter jurisdiction as one example of how this can happen.  With subject-matter jurisdiction, if the court does not have jurisdiction to rule on a specific case, not including personal jurisdiction which will be considered waived if not addressed in trial court, then the court's ruling is void and appeal can be reviewed and accepted. 

 

In each stage of a trial case there is opportunity for error to occur and different ways this should be addressed by lawyers.  While error in subject-matter jurisdiction and other types of legally outlined jurisdiction can not be waived, personal jurisdiction easily can be and any complaints or issues must be identified and brought to the attention of the court before proceedings even begin.  Pleadings, or the written components that make an official claim or argument present in trial, can also be sources for error.  Because these pleadings are submitted before trial sessions begin, the level of scrutiny placed on preservation of any errors which can be seen in the form of omissions of information, defect, or falsehood in a plea document must be highlighted and brought to the attention of the court before trial begins.  This increases the need for careful scrutinization of pleading documents by both sides during a trial.  

 

Discovery refers to the process where evidence and material that will be presented and used in court is exchanged between sides so there are no major surprises once court rolls around.  Discovery can take place in three main ways: through deposition which is the verbal conversation between one side and the other to get information about a witness or other key players in the case, there is written discovery, and there is material discovery where one side may request documents or other pieces of evidence that are relevant to the trial.  In this process, the common difficulty in preservation of error is a failure to request a hearing or bring attention to objections or motions to protect information that was requested.  This means that if you request information and the other side objects, you must push the issue to a hearing or to a resolution or else the requested discovery is deemed waived.  

 

Experts are often brought into trial to provide insight and major pieces of information that are important to the case.  Experts can often be considered one of the most important and heavily weighted pieces of evidence in a case and many cases are built off of the testimony of these experts.  For errors that may arise during expert testimony, this book splits the procedures into two different sections.  Firstly, the reliability of the expert must be challenged during trial court and will be considered waived on appeal if not brought up in a timely manner.  However, for the actual statements and claims of the expert, if they are possibly conclusory, meaning they have no backing, or speculative, meaning there is not a certainty behind the claims made by the expert, these concerns may be brought up for the first time during appeal.  Additionally, during civil trials, there are errors that can be brought to attention with a summary judgment.  Because I am focusing on the criminal side this is not something I am going into.  

 

Understanding the basic procedures that are needed to preserve error, thus having an appellate case to make in the first place, is crucial to establishing a baseline understanding of the field.  With an interview coming up this week with a criminal lawyer here in Frisco with appellate experience, this book and specifically this chapter is going to be helpful to my research and to my path forward in the class.  This also creates a segway for future research.  I need to go into procedural standards and the rules and guidelines that govern both a trial setting and appellate setting.  I also need to explore cases that I can study and strategies that can be used by criminal and criminal appellate lawyers. 

 

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