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John T. Floyd

Criminal Appeal Lawyer


Federal Criminal Appeal Lawyer


The John T. Floyd Law Firm represents individuals seeking relief from unjust convictions and unfair sentences by appeal and writ of habeas corpus in state courts throughout Texas and in federal courts nationwide.


Criminal Appeals in State and Federal Court


An appeal is normally the first avenue of relief in seeking to overturn a conviction or unnecessarily harsh sentence.


Writ of Habeas Corpus for Ineffective Assistance


If you are seeking relief due to ineffective assistance of counsel, the best course of action may be to file a writ of habeas corpus.


Board Certified Criminal Law Expert


John T. Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization and has argued appeals before the highest court in the State of Texas, the Texas Court of Criminal Appeals, and before the federal Fifth Circuit Court of Appeals.


If you have been convicted of a state or federal crime and hope to challenge the conviction or sentence, it is important to understand that there are strict deadlines within which appeals and writs must be filed to be considered timely.  Failure to file on time could result in waiver or “giving up” your rights to appeal.


Time Limits for Filing an Appeal


Under Texas law, you only have 30 days to file a notice of appeal for a conviction in state court. The time period to file a federal appeal is even shorter—only 14 days after entry of the judgment. Appellate Courts adhere strictly to these deadlines, so it is important to get in touch with an criminal appeal attorney as soon as possible.







Article III of the U.S. Constitution vests federal judicial power “in one supreme court, and in such inferior Courts as the Congress may from time to time ordain and establish.”


The Judiciary Act of 1789 created two tiers of courts: U.S. district courts, exclusive trial courts with limited jurisdiction; and Circuit Courts which had jurisdiction over serious criminal offenses, diversity suits involving the government, and limited appellate review over certain decisions by the U.S. district courts.


The Circuit Courts today are the Circuit Courts of Appeals. Through the Circuit Court of Appeals Act of 1891, Congress created a court of appeals for each circuit consisting of two circuit judges, or one circuit judge and one district court judge. Judges have since been added to the courts consistent with caseload and population growth.


Federal Appeal Not a Constitutional Right


Most people think a federal appeal is a constitutional right. It is not. In 1894, a unanimous U.S. Supreme Court in McKane v. Durston held that, regardless of the gravity of the offense, there is no constitutional right to appeal in a criminal conviction. This position was reinforced in 1983 in Jones v. Barnes in which the court held that a defendant could appeal a ruling on a pretrial motion because it met certain statutory prerequisites, but could not appeal as a matter of constitutional right.


Notice of Appeal Prerequisite


Rule 4(b) of the Federal Rules of Appellate Procedure recognizes the right to appeal a criminal judgment if certain statutory requisites are met, and Rule 3 of the Federal Rules of Appellate Procedure permits an appeal to be taken in a criminal case only if a notice of appeal is filed within the time constraints set forth in Rule 4.


Final Decisions, Conviction and Sentence


28 U.S.C. § 1291 generally limits federal appellate review to only final decisions of the district courts. In 1989, the U.S. Supreme Court interpreted this to mean that no appeal is allowed in a criminal case “until after conviction and imposition of sentence.”




The district court generally loses jurisdiction over the issues raised in an appeal once a Rule 4(b) (1) (i) notice of appeal has been filed within the allotted 14 days after the entry of either the judgment or the order being appealed.


Appeal Allowed at Order on Five Pre-Trial Motions


Under what is known as the “collateral order doctrine, the Supreme Court has recognized five types of pretrial motions from which an appeal can be taken if an order of denial is entered:


  1. Motions to dismiss the indictment based on double jeopardy grounds;
  2. Motions to reduce excessive bail;
  3. Motions to dismiss indictment based on the Speech and Debate Clause;
  4. Motions by public officials for summary judgment based on qualified immunity grounds; and
  5. Motions to enjoin involuntary medication orders.


The Supreme Court and the courts of appeals have disallowed pretrial appeals involving denials of at least seven motions, such as motion to attempt enforcement of plea bargain with government, or motions to disqualify either a judge or a prosecutor.


Notice of Appeal


Because the right to appeal is statutorily based, there must be a strict adherence to the statutes and rules governing the appellate process.


Notice of Appeal Must be Filed within 14 Days


The first strict rule is Rule 4(b)’s requirement that the notice of appeal be filed within 14 days of the judgment or order.


Inasmuch as Rule 4(b) is non-jurisdictional, courts have the discretion to waive this 14-day deadline in criminal cases. The Supreme Court has said that only those rules grounded in statute are jurisdictional.


Extension for Excusable Neglect


Thus, while Rule 4(b) is rigid, it malleable to extension if the party making the request can demonstrate “excusable neglect” under Rule 4(b) (4). The district court should consider the following four factors in determining when an attorney’s negligence constitutes excusable neglect:


  1. Prejudice to the government;
  2. The length of delay and its impact on the judicial proceedings;
  3. The reason for the delay; and
  4. Whether the defendant acted in good faith.


Courts have recognized excusable neglect when an attorney accidentally entered incorrect year into new calendar or when an attorney failed to read an applicable rule.


Courts, however, have refused to recognized excusable neglect when an attorney relies on a remark by another party’s counsel rather than consulting calendar or when the attorney misinterprets a filing deadline.


Preservation of Rights for Review


A timely objection must be made to preserve an issue for appellate review. The objection must be specific and must be made before trial or sentencing. This is known as the “contemporaneous objection” rule.


Contemporaneous Objection


It should be noted here that failure to comply with a state’s contemporaneous objection rule may foreclose federal habeas corpus review of a challenged issue following exhaustion of the state appeal process.


If a proper objection is not made, the defendant can request, and the court may conduct, what’s called a “plain error” review of a challenged issue.


Trial Objections Critical to Preserve Error


Thus, objections are critical. Rule 103(b) of the Federal Rules of Evidence demand that certain objections be made in pretrial motions, such as:


  • Defects in the institution of the prosecution;
  • Defects in the indictment;
  • Outrageous government conduct;
  • Suppression of evidence;
  • Discovery requests; and
  • Severance requests.


The American Bar Association recognizes 36 objections that can be made during a trial. These objections fall into the following seven categories:


  1. The form of question;
  2. Subject matter of question;
  3. Substance of evidence sought;
  4. Incompetence of witness to answer or exhibit to be removed;
  5. Failure to lay proper foundation;
  6. Failure to lay proper foundation for intro of exhibit; and
  7. Impropriety of circumstances.


The contemporaneous objection rule also applies to such issues as prosecutorial misconduct, judicial misconduct, or sentencing errors.


Ineffective Assistance of Counsel on Direct Appeal


To be heard on direct appeal, an issue of ineffective assistance of counsel must also be made at trial “absent special circumstances.” Appeals courts are loathed to entertain this issue on appeal because, more often than not, the issue can only be resolved without a fact-finding hearing, something an appeals court cannot conduct.  Therefore, it is the best practice to file writ of habeas corpus in the district court to allege ineffective assistance of counsel, where a fact finding hearing can be had.


Renewing Objections


Some pretrial objections must be re-asserted throughout the trial to preserve the issue for appeal.  For example, failure to renew motion for severance at close of evidence or failure to renew objection after denial of a pretrial suppression motion waives appellate review.


Motions in Limine Do Not Preserve Issues for Appeal


Some attorneys mistakenly believe that a motion in limine will preserve an issue for appellate review. It does not. For example, the Fifth Circuit has held that a motion in limine to admit a third party’s entire plea agreement insufficient to preserve the issue for appeal.


Waiver of Right to Appeal


Most plea agreements contain either an express waiver or a limitation on a defendant’s right to appeal.


However, under Federal Rule of Evidence 11(a) (2), a defendant may enter a conditional plea preserving his right to appeal a specific pretrial motion ruling and to withdraw his guilty if the appeal proves successful.


Plain Error Review


An issue not raised in the district court may be heard on appeal by the circuit courts of appeal under what’s known as the “plain error doctrine” set forth in Rule 52(b) of the Federal Rules of Criminal Procedure.


Sharply defined, a plain error is a highly prejudicial error that affects substantial rights of the defendant.


Three Prongs Plus


In order to have an issue heard on appeal as a plain error, the defendant bears the burden of showing the court of appeals (1) there was an error (2) that is clear and obvious, and (3) affected the defendant’s substantial rights.


In the Fifth Circuit, a determination of whether a plain error affected a defendant’s substantial rights is made by the appeals court in considering the entire record. An example of a plain error in the Fifth Circuit is when a sentence imposed exceeds the Sentencing Guidelines range by 12 months.


The above three-prong criterion is difficult to establish, and even if a defendant manages to do so, he is still not over the goal line. The appeals court must then determine whether the established error “seriously affect[ed] the fairness, integrity, or public reputation of the judicial proceedings” as required by U.S. Supreme Court mandate.


For example, the Fifth Circuit has held this criterion is satisfied when a judge automatically imposes a lifetime sentence of supervised release without considering the circumstances of the case and the range of punishment provided by statute.


Waiver Bars Plain Error


Plain error review is barred when a defendant waives his rights but such a review can be had when a defendant’s rights are merely forfeited.


A wavier occurs when there is a relinquishment of a known right. For example, the failure to move to suppress a search warrant precludes that issue from being heard on appeal.


A forfeiture of a right occurs when there is a failure to make a timely assertion of the right. For example, plain error review can be had when a defendant fails to object to conditions of supervised release at trial.


The following is a non-inclusive list of when plain error may be found:


  • The error affected a defendant’s constitutional rights;
  • Incorrect jury instructions;
  • Improper admission of evidence;
  • Errors in sentencing;
  • A change in law between trial and appeal; or
  • Prosecutorial misconduct.


The following is a non-inclusive list of when plain error is unlikely to be found:


  • Defense counsel contributes to the error;
  • The error concerns a fact admitted to by the defendant;
  • Defendant failed to request a curative instruction at trial;
  • Curative instructions are given to correct error; and
  • The evidence of guilt is overwhelming.


Harmless Error


An error in the trial proceedings in considered “harmless” when it does not affect a defendant’s substantial rights.


The harmless error doctrine was established by the U.S. Supreme Court in 1967 in Chapman v. California. The court said the doctrine was necessary to avoid “setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial.”


Put simply, a defendant is entitled to a fair but not a perfect trial.


There are two kinds of errors in criminal proceedings: non-constitutional and constitutional.


Non-Constitutional Errors


Non-constitutional errors will invariably be considered harmless unless they affect the substantial rights of the defendant. These errors are readily dismissed because, as the Supreme Court has held, “the judgment was not substantially swayed by the error.”


Constitutional Errors


Constitutional errors are different. The Supreme Court has mandated that the trial court determine whether the error was a “structural error” or a “trial error.” This determination is made by the court not only looking at the right violated but the particular nature, context, and significance of the right violated.


The Supreme Court has said that structural errors—those that fundamentally undermine the reliability and fairness of a trial—are never harmless and demand reversal of the conviction. The following is a non-inclusive list of such errors:


  • Denial of the right to a jury trial;
  • Racial discrimination in the jury or grand jury selection process;
  • Improper removal of potential jurors for cause in capital cases;
  • Improper amendment to an indictment;
  • Denial of right to counsel;
  • Denial to right of counsel of choice because of improper disqualification;
  • Denial of right to self-representation at trial;
  • Denial of right to an impartial judge;
  • Denial of right to a public trial;
  • Egregious violation of right to a fair trial;
  • Certain discovery violations; and
  • Erroneous jury instructions about reasonable doubt.


Trial errors are those that occur during the presentation of a case. The Supreme Court has instructed reviewing courts to determine whether these errors are harmless beyond a reasonable doubt and did not contribute to the verdict. The following is a non-inclusive list of such errors:


  • Certain grand jury procedural violations;
  • Examination of prospective jurors;
  • Misjoinder of defendants or offenses;
  • Variances between the indictment and proof presented at trial;
  • Failure to determine if the defendant understands the nature of the charges;
  • Failure to inquire whether a guilty plea is voluntary;
  • Certain violations of a defendant’s rights under the Fourth, Fifth, or Sixth Amendments;
  • Absence of the defendant from the trial proceedings;
  • Juror misconduct;
  • Prosecutorial misconduct;
  • Improper exclusion of exculpatory evidence;
  • Errors in jury instructions; and
  • Errors in sentencing both constitutional and statutory Booker errors.


Cumulative Errors


There is this final instruction: the Supreme Court has recognized that cumulative non-constitutional errors can undermine the fundamental fairness of a trial and warrant a new trial.




The Sentencing Reform Act of 1984 permits an appeal from a federal criminal sentence.


The congressional intent of the law is to have the appellate review of sentences take place on direct appeal in the circuit courts rather than in the sentencing courts.


Once imposed, a sentence cannot be either reduced or modified by the district court unless instructed to do so by the court of appeals, or authorized to do so by statute.


When Modification of Sentence Is Available


18 U.S.C. § 3582(c) (1) (A) authorizes the district court to entertain a motion by the Director of the U.S. Bureau of Prisons to reduce a sentence for (1) extraordinary and compelling reasons or (2) when an inmate has attained the age of 70, has served at least 30 years for a violent offense, and no longer poses a danger to the community.




  • 3562(b) (1) permits a court to either modify or revoke a probated sentence pursuant to § 3564 or § 3565.


Supervised Release


  • 3583(c) allows the district court to extend, revoke, or modify a term of supervised release if the offender’s conduct warrants or the interests of justice would be served.


Correcting Sentence


Rule 35(a) of the Federal Rules of Criminal Procedure permits the court, within 14 days of imposition of sentence, to correct a sentence resulting from arithmetical, technical, or other “clear error.”


Reducing Sentence


Rule 35(b) (1) authorizes the district court to hear a motion by the government to reduce the sentence of an offender who has provided substantial assistance in the investigation or prosecution of another person.


An Appeal May Be Waived


Anywhere from 95 to 97 percent of all federal defendants plead guilty. The pleas are generally the result of an agreement with the government. The overwhelming majority of the agreements demand that the defendant waive his right to appeal the sentence imposed.


These plea agreements waivers will almost always be held enforceable by the court of appeals because the terms of the agreement are clear and the defendant is educated enough to understand them.


The Fifth Circuit has held that the appeal waiver is always enforceable when the defendant signs an affirmation of understanding that expressly acknowledges an understanding of the waiver.


Grounds for Appeal of Sentence


A sentence may be appealed for the following reasons:


  • Sentence imposed in violation of the law;
  • Sentence imposed in violation of applicable Guidelines;
  • Sentence unreasonable for an offense under Guidelines for which it was established;
  • Sentence unreasonable if the fine, term of imprisonment, probation, or supervised release is greater than applicable Guidelines; and
  • District court refused to depart from Guidelines recommended sentence when court expressly states it did not have the authority to depart.


The Impact of Rita v. United States


In 2007, the Supreme Court in Rita v. United States gave the courts of appeal the authority to establish a presumption of reasonableness for any sentence imposed within the Guidelines range.


The Supreme Court, however, instructed that a sentence imposed outside of the Guidelines does not enjoy that same presumption of reasonableness.


That same year the Court in Gall v. United States held that simply because an appeals court may think another sentence is more appropriate than the one imposed by the district court, that alone is not sufficient to justify a reversal of the sentence.


Further, it should be noted that the Court in 2009 held in Nelson v. United States that the district court does not have the authority to apply the same presumption of reasonableness; that the presumption rests exclusively with the courts of appeal.


Under these mandates, the Fifth Circuit has held that a sentence is appealable when the defendant alleges the district court failed to adequately consider the sentencing factors in § 3553(a).


Failure to Object


An objection to a sentence must be made at sentencing. The failure to object can have serious consequences. The courts of appeal will review a challenged sentence only for plain error.


As discussed above, that is a strict standard of review and only the most egregious errors in sentencing will result in a reversal of sentence.


For example, the Fifth Circuit found plain error when the district court based its sentence in part on the court’s concern about the defendant’s drug addiction.


The court, however, refused to find plain error when the government withheld its promised motion for reduction because the ultimate sentence imposed was within the advisory Guidelines.


Sentencing Following Remand


If an appeal of a sentence is successful and the case is remanded for resentencing, the district court must correct the sentence within the framework of the remand order and after considering the § 3553(a) sentencing factors.


At the resentencing hearing, the district court may entertain evidence of the defendant’s rehabilitation since the original sentence was imposed and/or any other factors that may warrant a downward variance from the advisory Guidelines.


Resentencing for Substantial Assistance


In addition, under Rule 35 of the Federal Rules of Criminal Procedure, the district court may reduce a sentence when the defendant has provided substantial assistance in the investigation or prosecution of another criminal.


The court is authorized to consider § 3553(a) factors when determining just how much to reduce a sentence under Rule 35 for substantial assistance.




Your attorney will play a vital role in your appeals case, so it is particularly important to obtain a defense lawyer who is experienced in this part of legal process. Appeals are research-intensive and require unique skills.  A successful outcome in an appeal requires the assistance of an attorney who understands the complex nature of the federal appeals process: what claims can be presented and how they must be presented.


For these reasons, many criminal defense lawyers do not take appeals cases.  John T. Floyd is proud to use his experience, resources and skills to prepare an appeal that gives his clients a legitimate chance of being successful.


The John T Floyd Law Firm has extensive experience in post-conviction research and appellate brief writing and will conduct a thorough factual and legal inquiry to craft the best possible appeal.




Criminal defendants in Texas have a statutory opportunity to appeal a conviction. This right is codified in Article 44.02 of the Texas Code of Criminal Procedure. The state appeals process begins through post-conviction motions available to the defendant.


Motion for New Trial


Sometimes, the first step in the appeals process is a motion for new trial. This motion extends the plenary power of the trial court, and deadline for notice of appeal, for 75 days after the imposition of the sentence. The trial court must rule on the motion during this time period.


The grounds upon which a motion for new trial may be based are found in Rule 21.3 of the Texas Rules of Appellate Procedure. This rule provides that a new trial must be granted on either guilt or punishment for any of the following reasons:


  1. Except in a misdemeanor case in which the maximum possible punishment is a fine, when the defendant has been unlawfully tried in absentia or has been denied counsel;
  2. When the court has misdirected the jury about the law or has committed some other material error likely to injure the defendant’s rights;
  3. When the verdict has been decided by lot or in any manner other than a fair expression of the jurors’ opinion;
  4. When a juror has been bribed to convict or has been guilty of any other corrupt conduct;
  5. When a material defense witness has been kept from court by force, threats, or fraud, or when evidence tending to establish the defendant’s innocence has been intentionally destroyed or withheld, thus preventing its production at trial;
  6. When, after retiring to deliberate, the jury has received other evidence; when juror has talked with anyone about the case; or when a juror became so intoxicated that his or her vote was probably influenced as a result;
  7. When the jury has engaged in such misconduct that the defendant did not receive a fair and impartial trial; or
  8. When the verdict is contrary to the law and the evidence.


While the trial court may grant a motion for new trial for reasons other than those spelled out in Rule 21.3, the court can only grant the motion if the defendant shows that he is entitled to a new trial under the law.


New Trial in the Interests of Justice


For example, while a trial court may grant or deny a motion for new trial “in the interests of justice,” a judge may not grant the motion on mere sympathy, on inarticulate hunch, or simply because he feels the defendant received a raw deal or is innocent.


The appellate courts have held that “justice” means “in accordance with the law.” Without a showing of a substantial right being affected, the courts have said, a defendant should not be granted a new trial or else “the phrase ‘interest of justice’ would have no substantive legal content, but [would] constitute a mere platitude covering a multitude of unreviewable rulings.”


Notice of Appeal


The first step in the appeals process is a timely filed notice of appeal.


If Not Timely Filed Within 30 Days, Appeal Waived


Jurisdiction of the appropriate appellate court can be invoked only through a timely filed notice of appeal. Absent a timely filed notice of appeal, a court of appeals does not have jurisdiction to address the merits of an appeal and must dismiss the appeal.


Pursuant to Rule 26.2 of the Texas Rules of Appellate Procedure, a notice of appeal must be filed within 30 days after the sentence is either imposed or suspended, or after the day the court enters an appealable order, or within 90 days if the defendant timely files a Motion for New Trial.


Deadlines Strictly Enforced


These deadlines are strictly enforced; therefore, it is imperative that a criminal defendant file the notice of appeal as soon as possible.


The appellate court may extend the time to file a notice of appeal if, within 15 days after the deadline for filing the notice of appeal, the defendant (a) files in the trial court a notice of appeal, and (b) files in the appellate court a motion complying with Rule 10.5(b).


Filing the Record


Unless a defendant has been declared indigent, he or she is responsible for making arrangements to pay for the preparation of the record. Failure to do so can result in dismissal of the appeal.


If a defendant was represented at trial by retained counsel, and cannot afford to pay for the services of counsel on appeal, retained defense counsel must file a motion requesting permission to withdraw from the case; to find the defendant indigent for appellate purposes; and to appoint new counsel for the appeal.


Requesting Free Record


As part of this process, retained counsel should speak with the court reporter to determine the costs of preparing the record for appeal. Retained counsel should then file with the court defendant’s monthly income and expense summary, a “net worth” statement outlining defendant’s assets and liabilities, and an affidavit verifying the accuracy of these two documents.


Retained counsel may also request that the trial court order a free record for the defendant under Rule 20.2 of the Texas Rules of Appellate Procedure.


If the trial court determines a defendant is not indigent for purposes of an appeal, the defendant may appeal that determination.


However, if the court determines the defendant is indigent, it must appoint counsel and direct the court reporter to file the reporter’s record in the appeal on the merits without charge.


Briefing the Appeal


The appellate court will docket the case of appeal and issue briefing schedules for both the defendant and the state. The defendant files the opening brief which must adhere to strict guidelines for its preparation. The state then files its brief opposing the arguments presented by the defendant. The defendant may file a reply brief to the state’s brief but can only reply to issues presented in the state’s brief. No new issues or argument may be raised in a reply brief.


An effective appellate brief necessarily begins with an examination of the trial record.


Then the preservation of legitimate errors for review must be identified and an argument framed for these errors within the context of the record.


Once the appropriate issues for review have been identified, legal research must be conducted, especially in the areas in which a designated court of appeals has ruled upon. Primary case authorities are those issued by the Texas Court of Criminal Appeals and those issued by the court of appeals in which the appeal is lodged.


Briefs should be succinct, respectful, and employ appropriate language. Sentences should be simple, short, and clear. Paragraphs should focus on one topic. Accumulated topics in one paragraph will bury the tree in the forest.


Petition for Discretionary Review


If the appeal is denied or granted by the court of appeals, the defendant or the state may petition fordiscretionary review in the Texas Court of Criminal Appeals, the highest appellate court for criminal cases.


This petition essentially asks the Court to review the appropriateness of the court of appeals’ conclusions of law.


If the Court grants the petition, the defendant and the state are then allowed to brief the merits of the issue(s) upon which the petition has been granted.


Capital cases do not require a petition for discretionary review. They are automatically accepted by the Court of Criminal Appeals. In fact, capital cases are automatically accepted by the Court of Criminal Appeals without having first been filed in the respective court of appeals.



Contact Mr. Floyd to discuss your options and begin crafting the strongest appeal possible. To start working on your writ or appeal today, give our Houston office a call at 713-224-0101 or send us a quick email.



NOTE: An excellent source for understanding the federal criminal appeals process is the Annual Review of Criminal Procedure in the Georgetown Law Journal, cited as 44 Geo. L.J. Ann. Rev. Crim. Proc. (2015).


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