Friday, May 13, 2016

Meaningful Appellate Review?

I have used the Texas Office of Court Administration's (OCA) statistics several times in my blog. I used their statistics to break down the misdemeanor filings in my home, Brazos County for 2014 and 2015, concluding we are way above the state average in filing misdemeanor Possession of Marijuana and Driving While License Invalid cases.

 I have recently looked at a bigger canvas: The statewide number of criminal cases on which appeal was taken to a Texas court of appeal (COA) and later resulted in a reversal with judgment rendered or reversal with a remand for further proceedings in the trial court appealed from.

A few notes on the statistics, before getting to the results. The OCA does not break down the appeals based on who is appealing. In other words the statistics are blind as to whether the appellant (appealing party) was the State of Texas or a criminal defendant. There are some limited situations the State can appeal - for example, after losing a pre-trial suppression motion at the trial court level. There are others - extraordinary relief such as writs of mandamus. Nevertheless, these probably make up a small percentage of appeals. The vast majority of appeals are criminal defendants appealing convictions and/or punishments in Texas criminal trial courts.

For purposes of the results I have counted appellate cases either reversed and rendered or reversed and remanded back to the trial court for any reason. Thus although a case may have been affirmed in part, reversed in part, yet but not remanded, I did not count it toward the totals shown below. For comparison I used the OCA's statistics for fiscal years 2010 and 2015.

2015:  Total Criminal Cases Disposed:                                                                        5581
           Total Criminal Cases Reversed and Rendered:                                                    39
           Total Criminal Cases Reversed and Remanded:                                                171
           Total Criminal Cases Affirmed in Part, Reversed in Part and Remanded:            23
           Total Criminal Cases Affirmed in Part, Reversed in Part and Rendered:               3

2010:  Total Criminal Cases Disposed:                                                                          6179
           Total Criminal Cases Reversed and Remanded:                                                  149
           Total Criminal Cases Reversed and Rendered:                                                      25
           Total Criminal Cases Affirmed in Part, Reversed in Part and Remanded:              23
           Total Criminal Cases Affirmed in Part, Reversed in Part and Rendered:                 3

Translated, this means in FY 2015 COA's in this state reversed trial courts 4.2% of the time in criminal cases. This, however, is an improvement over the 3.2% reversal rate in FY 2010.

Crunching this data means that in only about 4 in 100 cases are courts of appeal in Texas finding error in the trial court sufficient to turn the case around. More generally it means that if lawyers in the Texas criminal trial court trenches are pressed on a trial strategy decision which may risk waiving trial court error, they may want to take the risk. This would be the conclusion given the bleakness of COA appeal reversal rates. This would be even more true in non-constitutional error situations.

I realize these statistics confirm what other, more sophisticated writers have long been saying. When a meager 4.2% of appealable criminal trial court decisions are reversed and rendered or remanded by Texas Courts of Appeal, there is real danger to the concept of meaningful appellate review.

No comments:

Post a Comment