FindLaw's Court of Appeals of Texas case and opinions. (2023)

Court of Appeals of Texas,Fort Worth.

Ex parte Vanessa Kaye LAMAR.

No. 2-05-100-CR.

Decided: December 22, 2005

PANEL B:  CAYCE, C.J.;  DAUPHINOT and WALKER, JJ. Crampton & Crampton, Holly Crampton, Wichita Falls, for appellant. Michael Mask, County Atty., Jacksboro, for appellee.


On our own motion, we withdraw our memorandum opinion and judgment of November 3, 2005 and substitute the following.

Appellant Vanessa Kaye LaMar filed a pretrial application for writ of habeas corpus alleging a violation of her right to a speedy trial, and the trial court denied relief.   In two issues, appellant asserts that the trial court erred by denying relief because the court's failure to provide her a speedy trial violated the Sixth Amendment and article I, section 10 of the Texas Constitution.   We affirm.

In November 2003, appellant pleaded no contest to a class B misdemeanor possession of marijuana charge and received one year of deferred adjudication community supervision.   In January 2004, appellant was arrested on a second charge of marijuana possession, and the State filed a motion to proceed to adjudication on the first offense on February 2, 2004.

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On February 22, 2005, appellant filed an application for writ of habeas corpus, complaining that her constitutional right to a speedy trial had been violated.   The same day, the trial court stated it would set the case for trial and denied habeas corpus relief after taking notice of appellant's evidence.1  Appellant then announced that she was going to appeal the trial court's denial of relief and asked the court not to set the case for trial until the appeal had been decided.   Appellant now argues, however, that the trial court erred when it denied her relief because she has not been afforded her constitutional right to a speedy trial.

The court of criminal appeals has held that a defendant may use a pretrial writ of habeas corpus in very limited circumstances.2  The court has further held that these circumstances do not include an attempt to seek dismissal of a proceeding on speedy trial grounds because the defendant has an adequate remedy at law and, therefore, has no need for the drastic remedy of habeas corpus.3  Instead, a defendant should file a motion to set aside the indictment in the trial court pursuant to article 27.03 of the Texas Code of Criminal Procedure, and, if the trial court erroneously denies the motion, the defendant may appeal from any conviction that resulted from the continued prosecution.4

The dissenting and concurring opinion contends that it “makes no sense” to require the State and appellant to endure the time and expense of a trial and appeal when appellant's speedy trial complaint can be settled in a pretrial habeas proceeding.5  In addressing this concern, however, the United States Supreme Court has observed:

There perhaps is some superficial attraction in the argument that the right to a speedy trial ․ must be vindicated before trial in order to insure that no nonspeedy trial is ever held.   Both doctrinally and pragmatically, however, this argument fails.   Unlike the protection afforded by the Double Jeopardy Clause, the Speedy Trial Clause does not, either on its face or according to the decisions of this Court, encompass a “right not to be tried” which must be upheld prior to trial if it is to be enjoyed at all.   It is the delay before trial, not the trial itself, that offends the constitutional guarantee of a speedy trial.   If ․ an accused [is deprived] of his right to a speedy trial, that loss, by definition, occurs before trial.   Proceeding with the trial does not cause or compound the deprivation already suffered.6

We hold that appellant has an adequate remedy at law;  therefore, she is not entitled to habeas relief.   We therefore overrule appellant's issues and affirm the trial court's judgment.

Although I agree that the trial court's order denying habeas relief should be affirmed, I respectfully dissent from the majority's holding that a pretrial application for writ of habeas corpus will not lie to raise the issue of the denial of a speedy trial as guaranteed by the Constitution of the United States.   As the majority concedes in a footnote, “a defendant in a criminal case may use a pretrial writ of habeas corpus:  (1) to challenge the State's power to restrain him ․;  and (3) to raise certain issues, which, if meritorious, would bar prosecution or conviction.” 1  I would follow the guidance of the Texas Court of Criminal Appeals and hold that when a “pleading is not reparable, a defendant may seek relief from a time-barred prosecution by a pretrial petition for a writ of habeas corpus.” 2  When the State has delayed prosecution beyond the time consistent with the due process guarantees of the Constitution of the United States, the pleading that charges the defendant with the offense is not reparable;  if a violation of the speedy trial right is established, the only proper remedy is the dismissal of the prosecution with prejudice.3  That is, a meritorious writ based on a speedy trial violation successfully challenges the State's power to restrain the defendant and completely bars prosecution and conviction.

The majority relies on a 1978 opinion of the Supreme Court of the United States and also cites a case dealing with a pretrial writ seeking to declare a criminal statute unconstitutional.   I, however, believe that we should look to more recent law dealing with the issue actually before this court in determining whether habeas relief will lie.   The Texas Court of Criminal Appeals has addressed the issue of habeas relief and the appropriate appellate standard when there is no timely indictment and when the denial of a speedy trial is raised.   The Martin court stated,

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In Barker v. Wingo, [407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) ] the Supreme Court set out a balancing test with four factors to determine when pretrial delay denies an accused of his right to a speedy trial:  (1) length of the delay, (2) reason for the delay, (3) prejudice to the accused, and (4) the accused's assertion of the right.   Today we adopt a Barker-like, totality-of-circumstances test for the determination of good cause under article 32.01.   The habeas court should consider, among other things, the length of the delay, the State's reason for delay, whether the delay was due to lack of diligence on the part of the State, and whether the delay caused harm to the accused.

Although the factors that we adopt today and the factors adopted by the Supreme Court in Barker are similar, we adopt this Barker-like test because of the similarities in the problem presented:  How do courts determine when the right to be discharged in the absence of an indictment or the right to a speedy trial has been violated?   The protections are different, but the problem presented is the same;  a fact-intensive situation calls for a balancing of the interests served by the rule and the interests of the parties. 4

Indeed, when the speedy trial complaint was couched in terms of failure to indict, although technically different from a pure speedy trial claim, the Texas Court of Criminal Appeals held that Appellant had waived his claim for failure to seek habeas relief:

In his seventh point of error, appellant contends that the trial court erred in denying his writ of habeas corpus and not dismissing the indictment with prejudice for failure to comply with Texas Code of Criminal Procedure former Articles 28.061 and 32.01.   The Grand Jury indicted appellant for capital murder on January 24, 1996.   Appellant filed his application for writ of habeas corpus on March 21, 1997.   On that same day, the State filed an affidavit of “good cause” pursuant to Article 32.01 of the Texas Code of Criminal Procedure setting forth the grounds upon which the State justified the alleged delay.   There was no hearing on the writ.   The trial court denied appellant relief.

We have held that Article 32.01 has no application once an indictment is returned.   In this case, appellant waived his right to challenge the indictment since he filed his writ of habeas corpus almost a year and a half after the indictment was returned by the grand jury.5

To require both the State and the defendant to marshal their evidence, call witnesses, pay lawyers and possibly experts to try the case in its entirety, and then endure the time and expense of appeal makes no sense when the issue can be settled in a pretrial habeas proceeding.

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Because this case falls squarely within the parameters set out in Ex parte Smith,6 I would hold that Appellant properly raised her speedy trial claim in her application for pretrial writ of habeas corpus.   I would then affirm the trial court's order denying habeas relief because Appellant did not demand her day in court below but, rather, requested only dismissal.


1. See Ex parte Hargett, 819 S.W.2d 866, 868 (Tex.Crim.App.1991).

2. See e.g., Ex parte Smith, 178 S.W.3d 797, 801 (Tex.Crim.App.2005) (noting the limited circumstances in which a defendant may use a pretrial writ of habeas corpus:  (1) to challenge the State's power to restrain him;  (2) to challenge the denial or conditions of bail;  and (3) to raise certain issues, which, if meritorious, would bar prosecution or conviction);  Smith v. Gohmert, 962 S.W.2d 590, 593 n. 7 (Tex.Crim.App.1998) (orig.proceeding) (holding that when relator sought writ of mandamus to compel trial court to either set his case for trial or dismiss the indictment pending against him, relator had no adequate remedy at law and was entitled to have his case set for trial (citing Chapman v. Evans, 744 S.W.2d 133, 135 (Tex.Crim.App.1988))).

3. See Smith, 962 S.W.2d at 593 (holding that when appellant claimed his state and federal rights were violated, he had an adequate remedy at law and was not entitled to habeas corpus relief);  see also Ex parte Weise, 55 S.W.3d 617, 620 (Tex.Crim.App.2001) (noting that the court of criminal appeals has held “that an applicant may not use a pretrial writ to assert his or her constitutional rights to a speedy trial”);  Ex parte Williams, No. 04-05-00386-CV, 2005 WL 1458687, at *1 (Tex.App.-San Antonio June 22, 2005, no pet.) (mem.op.) (not designated for publication);  In re Evans, No. 04-05-00563-CV, 2005 WL 2012772, at *1 (Tex.App.-San Antonio Aug.24, 2005, no pet.) (mem.op.) (not designated for publication) (both holding that defendant may not use pretrial habeas corpus to obtain dismissal of criminal charges on speedy trial grounds).

4. Smith, 962 S.W.2d at 592 (citing Pope v. Ferguson, 445 S.W.2d 950, 955-56 (Tex.1969)).   Of course, a defendant who successfully establishes a speedy trial claim in a motion to dismiss will not be tried.  United States v. MacDonald, 435 U.S. 850, 861 n. 8, 98 S.Ct. 1547, 1553 n. 8, 56 L.Ed.2d 18 (1978).

5. Dissenting and concurring op. at 326.

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6. MacDonald, 435 U.S. at 860-61, 98 S.Ct. at 1552-53 (1978);  accord Smith, 962 S.W.2d at 593.

1. Majority op. at 323-24 n. 2.

2. Ex parte Smith, 178 S.W.3d 797, 799 (Tex.Crim.App.2005).

3. Strunk v. United States, 412 U.S. 434, 440, 93 S.Ct. 2260, 2263, 37 L.Ed.2d 56 (1973);  Shaw v. State, 117 S.W.3d 883, 888 (Tex.Crim.App.2003).

4. Ex parte Martin, 6 S.W.3d 524, 528-29 (Tex.Crim.App.1999) (citations omitted).

5. Brooks v. State, 990 S.W.2d 278, 285 (Tex.Crim.App.), cert. denied, 528 U.S. 956, 120 S.Ct. 384, 145 L.Ed.2d 300 (1999) (citations omitted).

6. Smith, 178 S.W.3d at 801.

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JOHN CAYCE, Chief Justice.

DAUPHINOT, J. filed a dissenting and concurring opinion. WALKER, J. concurs without opinion.


What percentage of cases are won on appeal? ›

You may want to know: What are the chances of successfully overturning a judge's ruling on appeal? The answer depends entirely on the specific circumstances of your case. That being said, the state and federal data show that the overall success rate is between 7% and 20%.

How many justices are required to approve a petition for review Texas? ›

If four want to hear oral argument, the petition is granted, becomes a cause and is set for oral argument. In usual practice the Texas Supreme Court grants a petition and sets the cause for oral argument. Four justices must agree to grant the case.

What does it mean to perfect appeal Texas? ›

An appeal is perfected when a written notice of appeal is filed with the trial court clerk.

Do Texas trial courts issue opinions? ›

Finding Local Court Cases

Although most district courts do not publish their opinions, some court websites do post their dockets online. Some district clerks may also make records available to some degree online. Information about Texas Courts, including court structure and jurisdiction maps.

How hard is it to win an appeal? ›

Winning an appeal is very hard. You must prove that the trial court made a legal mistake that caused you harm. The trial court does not have to prove it was right, but you have to prove there was a mistake. So it is very hard to win an appeal.

What are the 3 possible outcomes of an appeals court decision? ›

What are the possible outcomes of an appeal?
  • Affirm the decision of the trial court, in which case the verdict at trial stands.
  • Reverse the decision to the trial court, in which case a new trial may be ordered.
  • Remand the case to the trial court.

What is the success rate of review petition? ›

Thus, a review petition is maintainable only on limited grounds. No official data is available but sources reveal that the success rate of Review Petitions in the Apex Court is less than 0.1 per cent.

Can review petition be rejected? ›

Order 7 Rule 47 of the Civil Procedure Code, no appeal is maintainable against the order of rejection of a review petition and, as such, in order to bypass the statutory hurdle t...

How long does an appeal take in Texas? ›

The average rule of thumb for the time of appeal was roughly 7-14 months from beginning to end. But appeals can potentially take longer, or in other cases, go more quickly if it is an appeal required to be expedited by law.

How long does it take to perfect an appeal? ›

An appeal must be perfected within six months of the date of the notice of appeal or order granting leave to appeal unless that time is extended by the court(22 NYCRR 1250.9[a]).

What are the 4 most common reasons for appeal? ›

Grounds for Appeal
  • Legal error.
  • Juror misconduct.
  • Ineffective assistance of counsel.
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What happens if you lose an appeal in Texas? ›

An appellant who has lost their appeal has several options based upon the nature of the civil or criminal case. These include filing a motion for a rehearing, filing an application for a writ of habeas corpus, attempting to transfer the case, and appealing to the highest court.

What do judges look for when they review a case? ›

In reviewing a case, the appellate judges determine if the law was applied correctly to the case. This process includes reviewing the application of procedural law and substantive law.

What are the 3 main opinions of the court? ›

Opinions, Dissenting Opinions, and Headnotes

A judge is assigned to write the opinion if the court, but any participating judge may write a separate opinion of his own.

What are the 3 opinions of the court? ›

Types of Supreme Court Opinions
  • Dissenting Opinions. The definition of a dissenting opinion is when one or more judges disagree with the majority opinion and write a formal explanation for why they disagree. ...
  • Majority Opinions. ...
  • Plurality Opinions. ...
  • Concurring Opinions.
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What is the best way to win an appeal? ›

4 Proven Strategies to Win a Court Appeal
  1. Hire an Experienced Attorney. The first, and most important, thing you should do when faced with an unsuccessful court case is to contact the right attorney. ...
  2. Determine your Grounds for Appeal. ...
  3. Pay Attention to the Details. ...
  4. Understand the Possible Outcomes.

Can you introduce new evidence on appeal? ›

(j) A party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case. (k) The court will consider the proportionality and prejudice of allowing the additional evidence.

How do you get a judge to rule in your favor? ›

How to Persuade a Judge
  1. Your arguments must make logical sense. ...
  2. Know your audience.
  3. Know your case.
  4. Know your adversary's case.
  5. Never overstate your case. ...
  6. If possible lead with the strongest argument.
  7. Select the most easily defensible position that favors your case.
  8. Don't' try to defend the indefensible.
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What factors should be considered before appealing a court decision? ›

Before you decide to Appeal there are many things to consider:
  • DO YOU HAVE LEGAL GROUNDS FOR APPEAL? Not every case is appealable. ...
  • ARE YOU WITHIN THE TIME CONSTRAINTS TO FILE AN APPEAL? There are limits in time to file an Appeal. ...

Can an appeal decision be challenged? ›

You can challenge the decision in the High Court if you think the Planning Inspectorate made a legal mistake. Get advice from a lawyer if you're unsure about this.

What influences a judge's decision? ›

As stated, Formalists recite that judicial decisions are the products of two fixed elements: the facts and the rule of law. A judge's decision is the result of the addition of these two elements; it is, thus, often predictable.

What is the maximum number of words for the petition for review? ›

(1) If produced on a computer, a petition or answer must not exceed 8,400 words, including footnotes, and a reply must not exceed 4,200 words, including footnotes. Each petition, answer, or reply must include a certificate by appellate counsel or an unrepresented party stating the number of words in the document.

How many Judicial Review cases are successful? ›

The figure is 26% if the success rate is measured out of cases that went to a final hearing.

Can a review petition be heard by another judge? ›

Generally, review petition are hear by the same judges who had earlier decided the case. The judges may be called for records relating to the said matter during re-hearing of the case for re-examination if any mistake happened in the Order so pronounced by the court.

How many Justices need to approve a case for review? ›

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How long does a Court take to review a case? ›

If permission is granted and the opponent decides to continue with defending the claim, then the time between a decision on permission and the full hearing is generally somewhere between 9 to 15 months.

How long does a judge have to make a ruling in Texas? ›


(2) Civil Jury Cases Within 18 months from appearance date. Civil Non-jury Cases Within 12 months from appearance date.

How much does it cost to file an appeal in Texas? ›

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What are the 3 types of appeals? ›

Aristotle postulated three argumentative appeals: logical, ethical, and emotional. Strong arguments have a balance of all of three, though logical (logos) is essential for a strong, valid argument.

What are the 5 steps of the appeal process? ›

  1. Step 1: File the Notice of Appeal. ...
  2. Step 2: Pay the filing fee. ...
  3. Step 3: Determine if/when additional information must be provided to the appeals court as part of opening your case. ...
  4. Step 4: Order the trial transcripts. ...
  5. Step 5: Confirm that the record has been transferred to the appellate court.
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Why do appeals take so long? ›

There are several factors, not the least of which is the sheer volume of court cases to be processed, and the paperwork involved. Additionally, if the circumstances of your case are particularly complex, it can take longer to prepare effective briefs, and longer for the appellate judges to consider your appeal.

How long does a Stage 2 appeal take? ›

Overall you can expect to receive a final decision under the appeals procedure within 90 days of the date your Stage Two appeal was accepted.

What is a good reason for an appeal? ›

Appealing against a guilty verdict

there was something unfair about the way their trial took place. a mistake was made in their trial. the verdict could not be sustained on the evidence.

Do judges make mistakes? ›

Everyone makes mistakes, including judges and prosecutors. But when it comes to something like how long a person should go to jail for committing a crime, a “mistake” can mean a defendant is forced to spend additional years in prison beyond what the law requires.

How do judges abuse their power? ›

Common complaints of ethical misconduct include improper demeanour; failure to properly disqualify when the judge has a conflict of interest; engaging in ex parte communication and failure to execute their judicial duties in a timely fashion. Behaviour outside of the courtroom can also be at issue.

Are you still guilty if you appeal? ›

There are a few things that can happen if you appeal your case: The court can keep the conviction the way it is ("affirming the conviction"). The judge can remand the case back to the trial court for additional proceedings. The judge can reverse the conviction and remand back to the trial court for a new trial.

Can an appeal court overrule? ›

In any event, there are many cases where the Court of Appeal will overturn decisions without implying any criticism of the original judge, for example, where the lower court was required to follow an earlier decision of the Court of Appeal which is subsequently found to be incorrect.

Can an appeal be denied in Texas? ›

If the motion is denied, then the defendant has 30 days to submit a Petition for Discretionary Review in the Texas Court of Criminal Appeals. As the name suggests, this petition asks that the Texas Court of Criminal Appeals review the decision.

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How does the judge decide who is guilty? ›

The judge or jury decides if you are guilty after hearing all the evidence and the submissions. In most cases, it will take some time to decide the outcome of the case. When you hear the verdict, if you are not guilty (acquitted), you can leave.

What is the most important part of an opinion of the court? ›

The most important thing to remember is that the opinion written by the court - the part which actually constitutes the law- does not begin until the section marked "Opinion." Generally, the sections appearing before the "Opinion" are added by the publisher to aid in understanding the decision.

How do you write an opinion for a court case? ›

The pattern of opinion writing for appellate courts has five parts: opening paragraph identifying the type of case, aligning the parties, and giving the result in the trial court; indication of the issues on appeal; statement of some or all of the facts; discussion of the law, with additional facts as needed; and ...

What is the difference between an opinion and a decision? ›

A decision is a loose term for the set of opinions that accompany an order, combined with that order. There may be more than one case associated with a particular decision. An opinion is a general term describing the written views of a judge or judges with respect to a particular order.

What does it mean when a judge gives an opinion? ›

The term “opinions” as used here, refers to several types of writing by the Justices. The most well known are the opinions of the Court released or announced in cases in which the Court has heard oral argument. Each sets out the Court's judgment and its reasoning.

What is a judge's written decision called? ›

Judgment: A court decision. Also called a decree or an order. Judgment File: A permanent court record of the court's final disposition of the case.

How do you read a court opinion? ›

Understand the formal elements

Headings typically include the Court term in which the opinion was announced, case docket number, argument dates, and decision date. Another important element is the case name, which helps determine the parties involved in the case (see sidebar).

How successful is an appeal? ›

Most of the time, appeals are a long shot, meaning that they do not often end in favor of the party calling for the appeal. It's difficult to put a number on how many appeals are successful, but many court professionals estimate that fewer than one appeal out of 10 ends in favor of the appealing party.

How many judges usually hear an appeal? ›

Appeals are decided by panels of three judges working together. The appellant presents legal arguments to the panel, in writing, in a document called a "brief." In the brief, the appellant tries to persuade the judges that the trial court made an error, and that its decision should be reversed.

What makes a successful appeal? ›

A successful appeal must identify and resolve the mistakes made by the trial court. There are two types of mistakes: the first is a mistake in which the trial court misapplied the law in some fashion or misunderstood a key piece of evidence.

How successful are appeals UK? ›

On average only about one appeal in three is successful, according to the Planning Inspectorate's records. This rate has remained broadly constant over many years. Appellants should be confident at the time they make their appeal that they are able to make their full case.

How long does it take for your appeal to be approved? ›

The Independent Tribunal will attempt to finalise appeals within 60-90 days from the date on which the appeal was received. They will inform clients of their decision electronically and of reasons why they came to the decision.

What happens if an appeal fails? ›

If you lose your appeal, your original conviction will stay the same. You won't be able to appeal again unless the Criminal Cases Review Commission refers your case back to the Court of Appeal.

What must a successful appeals case demonstrate? ›

To win an appeal, you must adequately demonstrate an error of law or wrongdoing committed by the court during the trial proceedings. The appellate court typically assumes judges and legal professionals follow applicable rules and laws during a case.

How do judges decide cases? ›

The trial judge's decisionmaking must determine what are the facts and the proper application of the law to these facts. To bring order to the confusion of contested facts and theories of law, the trial judge decides cases by hypothesis or a series of tentative hypotheses increasing in certainty.

How many justices must agree to hear a case on appeal? ›

Typically, the Court hears cases that have been decided in either an appropriate U.S. Court of Appeals or the highest Court in a given state (if the state court decided a Constitutional issue). The Supreme Court has its own set of rules. According to these rules, four of the nine Justices must vote to accept a case.

What is a strong appeal? ›

The strong-appeal letter emphasizes urgency. It says, in effect, “we must have the payment by return mail.” By developing the basic appeals and insisting on payment for the debtor's own good, the writer adds stringency. Comments about the cost of a lawsuit are common in urgency letters.

What are the three grounds for appeal? ›

appeals against magistrate and jury convictions; appeals against sentence; and. special inquiries.

Do people ever win appeals? ›

The chances of winning a criminal appeal in California are low (about 20 percent of appeals are successful). But the odds of success are greater if there were errors of law and procedure at trial significant enough to have affected the outcome of the case.

How long do all appeals need to be lodged after a hearing decision? ›

You must appeal within 12 weeks of the date on the decision notice from your local planning authority.

What is an error of law on appeal? ›

You can only appeal from an appeal tribunal to the Social Security Commissioner on the ground of error of law. What is meant by error of law? The tribunal may have erred in law if it: • Misinterpreted the law. • Reached a decision unsupported by evidence.


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