Court of Appeals Rev ...

Court of Appeals Reversals from a Criminal Perspective | Jim Huggler

August 12, 2021 | by D. Todd Smith

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While trial and appellate practice are different in many ways, attorneys who understand each one are better at both. On the criminal side, Jim Huggler has managed to balance both a trial and appellate practice representing criminal defendants in state and federal courts. This week, he joins Todd Smith and Jody Sanders to discuss his practice in the different forums, his experience as course director for TexasBarCLE’s Handling Your First (or Next) Criminal Appeal program, and his study of the reasons for reversal in criminal cases. He also offers resources advice for attorneys who might want to try their hand at criminal appeals.

Our guest is Jim Huggler from Tyler. He is a criminal lawyer. He does trial and appellate work on the criminal side. Welcome to the show, Jim.

Thanks for having me.

We appreciate you being on with us. We were chatting a little bit about how we’ve taken the show in a little bit of a criminal slant lately. For those of us on the civil side, it’s interesting to us because it’s so different from what we do on a daily basis that I don’t get tired of hearing about it. You’ve got a broad range of experiences as I understand. Before we launch into any substantive discussion, why don’t you tell our readers a little bit about yourself, your background, and how you got to where you are now?

I grew up in Chicago. My dad was transferred to Houston in high school, so I went to A&M. I met my wife there. I went to South Texas after that. My goal was to become a prosecutor. I interned at the US Attorney’s Office in Houston for almost two full years and then got a job up here in Tyler at the District Attorney’s Office. I did that for almost eight years and then set up my own practice. I’ve been solo since 2003.

Tyler has a very good bar. Almost 25% of our lawyers are board-certified in one or more areas. That is because we’ve got the state court in Tyler and Smith County. The Court of Appeals, the 12th is here, and then we have federal courts as well, district and bankruptcy. We’re a legal hub and a lot of our lawyers are at the top of their class. That’s what led me to go for board certification, both in criminal law and then in 2011 in criminal appellate law.

When you started your career as a prosecutor, were you doing just trial work or did you do some appeals too?

Primarily it was trial work. I did do three appeals on cases of mine that had been appealed. I went to our appellate lawyer and said, “I’d like to do these briefs. What do I do?” He says, “Here’s what you do,” and I go do them. I got those three briefs under my belt as a prosecutor and then I started as a defense attorney, so much more experience there.

You’re board-certified in criminal law, and in 2011 you became board-certified in criminal appellate law. That is a fairly new certification but you’ve been certified for several years. It’s not so new anymore.

We are still one of the smaller groups. We have about 100 criminal appellate court specialists. A decent number of them are on the Court of Criminal Appeals, various courts, defender’s offices.

What kind of background did you have to have just comparing the criminal to the civil? You had to have a certain number of appeals that you’d handled this first year, written the briefs, and done the arguments. Did that include any post-conviction activities? Is that considered appellate work for purposes of the criminal appellate certification?

It would be and I don’t remember the exact TBLS standards. There was a certain number of appeals, a certain percentage of your practice, CLE, and you could do direct appeals, petitions to the Court of Criminal Appeals, 11.07 writs to the Court of Criminal Appeals, and then federal appellate work also counts towards those numbers.

How difficult is it to get oral arguments in the criminal context?

It can be very difficult. I’ve probably written more than 600 appellate briefs. For most of those, I don’t ask for oral argument because you don’t need it based on the record. I’ve probably had fewer than ten arguments. It’s almost easier sometimes to get them at the Court of Criminal Appeals than it is at the intermediate courts.

Is that true in federal court as well?

I believe so. Federal court, I had one, I was all excited and all set. I had my tickets to go down to New Orleans and then they canceled it the week of oral argument and then affirmed the judgment. They didn’t rule with me but it took them 38 pages to affirm the judgment. I felt a little good about that.

A common issue between the civil and the criminal appellate certifications is the challenge. It’s gotten more difficult to achieve the requisite number of oral arguments. I know that the TBLS, the Texas Board of Legal Specialization, has gone through and tweaked the qualifications requirements to sit for the exam at least once or twice. To take that into account, that’s a remarkably low number of oral arguments for as many briefs as you have filed. One way of explaining that might be that the courts view most criminal appeals as routine and evidentiary as opposed to making any new points of law. Do you think that’s correct?

That may be their thinking but the cases that we all know about, the cases we learned in constitutional law were all criminal cases. They’re important. Especially the Court of Criminal Appeals, we’re approaching some topics now and it’s important material. I wish some of the courts would be more allowing of oral arguments. Some courts have a good reputation. The Dallas Court of Appeals generally grants oral argument if the parties request. The Houston courts have done that for me. The other courts, unless there is something they need to clarify or if it’s a big policy heavy case, they don’t give you the oral argument.

Do you do private client work, appointed work, or a little bit of both?

Both, yeah.

I’ve heard through talking this over with previous guests of the show that it’s difficult to make doing criminal appellate work your living because by the time that the criminal defendant has gone through and been convicted if there was money to start with, it’s already been spent on the first level of the case. How has that been in your experience?

It’s about the same. We’re in Tyler, we’re a smaller jurisdiction. There are some very good criminal appellate lawyers in all the major metropolitan areas and they can do appellate work all day, all night and make a good living. In the smaller areas, that’s a little more difficult to do for several reasons. That’s why I’ve got both the trial side and the appellate side of my business in my practice. It complements. I’m sure you guys have the same experience. You prepare for a CLE topic and that will affect how you practice in the future. I know when I’m writing briefs, I’m looking for things in the trial that I know might result in a good issue on appeal, and I do that more consciously. That produces a better result both ways for my trial clients and appellate clients.

Having an understanding of the trial process and being part of that makes you a better appellate lawyer. Being an appellate lawyer makes you better in the trial process because you see down the road where some of the landmines can be. You can make a roadmap as you go along to make sure that you’ve got your case ready in the event that it’s going to be appealed, or make sure that you’ve got all the stuff in there in case the other side appeals so that you don’t have to worry about it.

A special assistant district attorney for a smaller county doesn’t have any appellate lawyers in-house and they’ve got a complicated capital murder case. They wanted an appellate lawyer to help them with things like the jury charge, venue and some of those issues. It was a very smart decision by that district attorney to bring on someone. I’ve heard some of your other speakers talk about, “You’re an appellate lawyer and you get consulted by the trial team to make sure so that you can give them a roadmap of what issues are going to come up.”

It sounds like on the criminal side, most of the time, unless you find that specific situation where you’re getting appointed as a special assistant DA, you don’t have the luxury when you’re going and trying a criminal case of having a separate appellate lawyer sit there at the counsel table with you to help do things like make the proper objections or argue the charge. It’s hard enough to get that work as a civil appellate lawyer. I can only imagine, on the criminal side, that truly would be a luxury.

Occasionally, it happens but not often. Much more frequently, you get phone calls from colleagues, “Here are my facts. Am I on the right track?” That’s always good. It’s great to have that camaraderie.

It makes sense that it would be more often on the prosecution side because they simply have the resources to make that happen where criminal defendants often don’t. One of the things that I thought was interesting is you also work part-time as a municipal judge. Tell us a little bit about that. That’s a neat thing.

man looking at watch
Criminal Appeals: Almost 25% of our lawyers are board-certified in one or more areas.

I’ve been an associate judge for the City of Tyler Municipal Court for years. Judge Amy McCulloch, the presiding judge, and I have worked few years about making sure that our court is a real court with real due process for the people who come before it. Like many municipal courts, there has been a long-standing belief that officers have quotas, the city has a budget quota, and its cash register judges justice to supplement the city budget. That isn’t true and we have worked hard to get that message out that it is not true. I know we have both had any number of people come up to us after the hearing or after a trial and say something like, “You disagreed with me and you ruled against me but you listened to me.” That is gratifying to us. We’ve got some neat things going on at Tyler Municipal.

It’s probably very fulfilling because, for so many members of the public, that’s probably their only real interaction with the criminal justice system.

We get at Tyler roughly 45,000 to 47,000 cases a year. That is more than all the other trial courts in our county, federal state, justice of the peace, everyone put together. We see just a volume of people. One of the things we focus on is if we can convince the people who are coming to our court, that court is a place where you get a fair shake. If you have evidence, if the judge will listen to your evidence, then we’re doing a good thing for the whole community.

I imagine having a criminal defense background probably helps with that too because you have a different mindset than someone who maybe has been a career prosecutor. As a municipal judge, is a law license required to hold that position?

In our court, it is because we’re a court of record. There are a lot of courts that if they’re not a court of record, you don’t have to have a license. If you don’t have a license, you have additional training you have to go through with the Texas Municipal Courts Education Center.

I was thinking that because you’re a lawyer, you’re probably more conscious of things like due process and the way that things ought to be done in a courtroom. If it were a court that a law license was not required, being a court of record is the determining factor on that. I can totally see how if it weren’t a court of record, you could have brought very significant improvements trying to keep things at a minimal level of service to the folks coming in. I’m surprised. I come across lawyers who do part-time work as municipal judges, not infrequently it seems like. Everyone seems to find it gratifying. You get to go out and meet the people in a way that you can’t do sitting in your own office.

With the pandemic and all those issues, we’re having our second in-person jury trials over at the Tyler Rose Garden. It’s been interesting.

How often do those cases get tried?

Pre-pandemic, we were trying cases. We had one trial day every week, so we’d alternate bench and jury trials. Over the pandemic, we’re changing that a little bit. Hopefully, we’ll resume our operations for jury trials at our courthouse and we’re going to be doing those 3 weeks out of every 4 going forward for the next few months. Try and get some of the cases that were set up for jury trial, and get those resolved.

We’ve heard a lot about court backlogs as a result of the pandemic. Would that be your experience where there are a lot of people that were stuck in jail longer than they should have been because of the pandemic and couldn’t get to trial?

Not with our court. One thing that we’ve done over the last several years, we still were meeting virtually on a daily basis with anybody who was in charge in the jail on our charges. We’d either dispose of them or release them on personal bonds, so they weren’t spending. Our sheriff was not accepting Class C arrests for most offenses for a long time because of the pandemic. We have not seen the jail population grow as a result of our court. I know it has slowed down the misdemeanor and the felony level courts certainly in East Texas.

I wasn’t thinking so much about your role as a municipal court judge. I was thinking about your role as a criminal defense lawyer. That’s where I have heard where someone’s in jail on a felony and they can’t make bail. The pandemic was not a good time to be in that situation across the board.

We had one of our trial courts. A district court tried a case and the gentleman had been in custody for a few years. They’re sitting there and couldn’t make bond.

It has been nice to hear stories about how the courts have handled their workloads during the pandemic. It sounds like Tyler and the folks there have done a good job of trying to avoid a lot of difficult situations with overcrowding the jail. Early on, we didn’t know how this was transmitted so it could have been a real hotbed. It sounds like Tyler has done very well.

We certainly have tried. It’s been difficult as everywhere else in the state. There are judges like Emily Miskel over in Dallas who’s done virtual jury trials, and then Judge Ferguson out in West Texas. None of our judges are ready to do that. We haven’t been as on top of it as some but we’re doing our best here.

I wanted to ask you specifically just to change gears a bit. We mentioned post-conviction work early on and we’ve had some conversations here on the show about that. Hopefully, folks that have read it have an idea of what we’re talking about. That’s a significant part of your practice if I understand it.

It is.

How did you get into that? Is that a natural extension of doing criminal defense in appellate work?

After I left the DA’s office, I had done a few appeals. I wanted to get better at them. At that time, you have to have five appellate matters as lead counsel to sit for the criminal exam. I had three from the DA’s office. I picked up two more but I hadn’t had the opinions issued yet. I was getting into that. Smith County back then and still now on their indigent defense side and on the felony side has a contract system. There are three lawyers per court who handle all the indigent trial work, and then there were two lawyers who handled all the indigent post-conviction work. I applied for that and I got that.

That’s how I got into it and enjoyed it. I developed a liking for trying to use the written word and a cold record to impart your client’s humanity, and try to convince an appellate court that something happened below and it needs to be fixed, and here’s why, or convince the Court of Criminal Appeals, “Here’s a policy that we need to change and here’s why.” The intellectual satisfaction has been satisfying to me. It’s completely different from the interaction you get with trial work, with working with a jury and talking with the prosecutors. It’s different in some ways and similar in other ways.

From the little bit of criminal exposure we’ve had on this show, it seems like writ work, in particular, is a blend of appeal and trial because you’ve got the fact-finding role and the appellate role, which is an interesting hybrid.

Writs can be tough. Under Texas, you’re going to get one writ and one post-conviction writ. If you don’t find something and don’t raise it, you’re going to more than likely be barred in the future from raising it no matter how meritorious it was. There’s a lot of pressure on the writ attorneys. On the writs that I do, I always have multiple meetings with my clients and most of my clients are in custody for that. The pandemic slowed that down. We haven’t been able to get back in meeting with people in TDC units. I’ve been once a week going to a TDC unit because there’s only so much you can convey in writing to someone who’s in custody. It’s a lot easier to have that 1- to 2-hour-long conversation. You can get a lot more done than 15 letters back and forth.

Is that how it was handled during the pandemic? Was it all written communication or video or anything?

Some of the units had some video, some of the units had phone capabilities, but primarily it was just all written, depending on which unit it was.

I don’t think we’ve talked on the show with anyone yet about the federal post-conviction process. You mentioned you had done some federal work. What is the relationship? I recall from digging way back into the ancient past of law school that you can’t take successive writs in state court. How does it work when bringing a federal writ? It used to be that it has to be a federal constitutional issue. Maybe you can educate me on that because I don’t think I’m explaining my question very well.

people talking about a document folder
Criminal Appeals: We make sure that our court is a real court with real due process for the people who come before it.

I think you are. I’m probably the wrong guy to ask that. I’ve only done three federal post-conviction cases. Two of those were appointed by federal judges. They were related to juveniles after the Supreme Court said a juvenile couldn’t get life without parole. It was a fairly clearly defined issue and a newer opinion area of the law. There are probably other people who would be much more qualified to speak on that.

It’s always good to recognize our limitations. That is a wise man who does that.

What about on the trial side? Do you do much federal trial work? To the extent that there is a lot of federal trial work to be had.

That’s one thing about the Eastern District that is good. The prosecutors there are good professional prosecutors. It’s funny the district between the Plano, Sherman area of the Eastern District and then the Tyler, Beaumont, Lufkin and Texarkana. Most of East Texas, we’re a small legal community. We know each other. We serve on the same bar committees. We see each other at dinner. Our kids go to the same schools. It’s very collegial and, generally, we can work things out. If we can’t, we’re going to go to trial. We’re going to fight hard in the courtroom, and then go outside, shake hands and see each other again.

At least my impression is it’s handled a little differently in a couple of the other divisions in the Eastern District where it’s more contentious. In Tyler, we’ve got maybe 2, 3 criminal cases going to trial in federal court a year. It’s not many. That reflects on the US Attorney’s Office working with the defense bar and the defense bar being good lawyers and explaining to their clients, “This charge might not be the best one for you, but this one that’s in the indictment gets you.” If you go to trial, you can get tagged with both. Federal criminal law is like NFL football, except the government to some respect is the Dallas Cowboys and my team we’re the John Tyler Lions High School.

It’s always nice to hear stories of professionalism and lawyers working together to take care of the interest of justice. We don’t always hear that. It does seem like in your practice, you’re uniquely situated because of your trial-level practice and your appellate practice to do post-conviction work because it does require elements of both trial lawyer skills and appellate lawyer skills. How do you generate that work now?

As I’m sure with civil appellate work, a lot of it is referrals from other attorneys. You’ve got someone who they call their regular family lawyer or the lawyer who had may have handled a divorce or a property transaction and they say, “I’ve got a relative and they have these problems. Who do I talk to?” After you get a good reputation, that’s where most of my business comes from. Surprisingly, when you’re regularly responding, your client is in TDC, they get the letter from you, and they see the quality of your work, that gets passed around. You get letters from family members. My son is in the Gurney Unit and saw a brief you did, and he has a similar issue in his case. That is something that I hadn’t expected but has been fruitful. You get there the opportunity to work on cases from across the state, not just convictions right here.

You do get to see a lot of the other courts of appeals with some frequency.

I’ve appeared in front of 8 of the 14. There’s one criminal practitioner I know down in Austin who’s hit all fourteen. That might be a bucket list. I haven’t been to the Valley courts, El Paso, Amarillo, Lubbock and Waco, so that’s five.

Even eight is pretty impressive, all things considered. Based on the statewide spread of your practice, you were a pretty happy lawyer when eFiling came out and became widely available in the appellate courts to start with. It’s become more prevalent among the trial courts as well. I know that the ultimate mandate is to make it available in all courts. Are you able to eFile on all your criminal cases?

All the criminal cases. The only thing we can’t yet is the juvenile matters. I do a number of those and that’s a statewide issue. Nobody does juvenile eFiling yet. The issue is the different levels of security with juvenile files and confidentiality, but I think that’s coming. I’m sure Blake Hawthorne and the whole crew down in Austin are working on that.

One of the things that we wanted to talk to you about was your role as the course director for handling your first or next criminal appeal CLE and the paper that came out of that. Can you tell us a little bit of the background on that?

I was very fortunate to serve for six years on the State Bar CLE Committee. Most of my time, it was chaired by Judge Xavier Rodriguez out of San Antonio. We had people from all over the state working on that committee, every practice area, and it opened my eyes to that level of collegiality and professionalism. Scott Rothenberg is now the Chair. He was on the committee with me for several years and is a great professional.

As part of that committee, we’re asked every time we meet to come up with topics for future CLEs. The State Bar has started a few years ago pushing intro to areas. It was handling your first or next divorce, and your first or next probate, things like that. I said at one, “We need to do one for handling your first criminal appeal because if you’re a smaller town lawyer, you may get a call from a judge and you may get appointed to a criminal appeal. You’ve never done a criminal appeal before. We want to give you a place to start so that you can do one well.”

We did that. Unfortunately with the pandemic, we were supposed to be meeting in person at the State Bar. That didn’t happen but we had a great panel of wonderful lawyers who worked with me on that. Everybody from Judge David Newell from the Court of Criminal Appeals was there. Retired Judge Elsa Alcala was there. David Botsford from San Antonio who’s an outstanding criminal appellate lawyer was one of our speakers. We had a great group of folks. It was everything from starting and perfecting your appeal all the way to what happens at the end of it, how to do writs and things like that. It was a good seven and a half to eight-hour CLE. It’s still available on the State Bar’s website.

I would imagine Texas Bar CLE would have that. I’m happy to hear that you did this. In my former practice when I was on my own, I got a lot of calls from folks that I couldn’t help because I had no experience with criminal appeals. Even aside, if I wanted to help them and if the economics were going to work, I wasn’t comfortable even thinking about taking a criminal appeal. One nice thing about those introductory level courses is if you’re going to explore a new practice area or if you get interested in something that you might want to expand into, that’s a great resource for that. I would’ve felt a lot more comfortable had I been able to take that course, hear the speakers, review the materials, and at least maybe advising some people about options.

That’s a real service to the bar in putting that course together. Criminal lawyers are going to have appeals go up, folks who do criminal trial practice, and there might be appellate lawyers who are interested in taking on criminal cases on the appellate side. That’s a wonderful topic and I’m so glad that you all put that program together. It does sound like you had an all-star lineup too.

As the course director, you get to pick your own topic. I was inspired by Kent Rutter’s paper on the reasons for reversal in the civil Texas appellate courts. I did some quick research and nobody had ever done one of those for the criminal side. In his last paper, the one from 2020, he looked at the issues with the change in the courts in Houston, Dallas and San Antonio about whether the election change and the shift from primarily a Republican court to a Democrat elected court produced any differences in the opinions. I wanted to do the same thing on the criminal side. That’s what led to my paper. That was interesting. I didn’t realize how much I was signing up for when I bit that topic off. It took a while.

That is a very ambitious project but it has to be extremely useful to people who practice in your area. Congratulations on biting off that one, and hopefully you’re able to get past it. Now you can do what Ken does and just update it from time to time. You need an associate like he has to help you with it.

We had two very good people. I’m fortunate. My legal assistant got her Master’s in Criminal Justice. She did all the statistical analysis to make sure what we were finding was statistically valid. I have a law student interning with me, so the three of us read 4,183 criminal opinions. The way we did it to satisfy statistical needs is we had one giant spreadsheet. We would go in and find out what the issue was, what the result was, and what court it was.

We collected a tremendous amount of data, and then it was back checked by another of us three. The first person would go through it. The second person would then read the same opinion and compare it. We would bring it up regularly. We’d have meetings every Friday afternoon at the office, “Here are the four cases where I disagreed with Steven,” or Steven disagreed with Gabby, or Gabby disagreed with me. We worked those out because we wanted as clean a product for the statistical analysis as we could.

people having a stressful discussion
Criminal Appeals: None of our judges are ready to do virtual jury trials.

What were some of the takeaways? Were there things that surprised you?

There were surprises between the courts. Several of our courts, and you can probably imagine the ones, have almost all of their criminal docket coming from one county. The 1st and the 14th, the 5th in Dallas, San Antonio, El Paso. With Tyler, it comes from Smith County. In most of the other courts, all but one, you could link it to 1 or 2 counties. Amarillo got almost all of it. The largest percentage of their docket came from Potter or Randall, and that makes sense. The Texarkana court was the most diverse in counties feeding into it. They had 20 or 25 counties feeding into the Texarkana court. They didn’t have any particular dominant county that they were seeing.

It also surprised me how even with the rules that are identical, some courts do things differently. We found three courts that did not issue a per curiam opinion at all. Every opinion had a judge’s signature on it. The San Antonio court at that time, even on the orders, what I’ve seen as other courts, having a routine order. Extending a briefing schedule or correcting a record. Most of the other courts I’ve seen have had those signed by the deputy clerk for the court. The San Antonio court at that time still used a signature from the judge on the order going out. I thought that was interesting. You could see some differences in the courts.

The thing that surprised me was how often ineffective assistance of counsel was raised on direct appeal. On the criminal side, it’s going to be rare that that will be a fruitful ground for appeal because the appellate courts have said, “Trial counsel has a right to defend what he or she did. You can’t make that analysis under Strickland based on this record without getting that lawyer’s input.” That’s why it was surprising to me that such a high percentage of cases included an ineffective claim. I was not surprised by the sufficiency of the evidence and jury charge error, but I was surprised by the ineffective claims on direct appeal.

That’s a wrinkle I’m not familiar with. When you say they have to get trial counsel’s input, how does that work?

What will happen most times is an attorney or the defendant will then file an 11.07 writ alleging ineffective assistance of trial counsel. My trial counsel didn’t interview witness A and B or didn’t call witness C or didn’t challenge this piece of evidence. When they file that in a writ, then the Court of Criminal Appeals has been consistent about this. They’ll send it to the trial court for a finding either on affidavits or by live testimony for that lawyer to explain why he didn’t call A, B or C, or why he didn’t object to this evidence.

Overall, I imagine the reversal rate on criminal opinions is pretty low.

Easily 3/4 of the cases are just straight affirms. You got a number of cases that are dismissed based on motion, and then a number of cases that are dismissed following an Anders brief. The difference there for an appointed lawyer on a criminal case, if they can find no non-frivolous source of error, then as an officer of the court, they have the option of filing an Anders brief on following Anders v. California. You lay out the case and you say, “Here’s what happened and here’s why there’s nothing to raise.” I’ll give you an example. You may have a lawyer appointed to a case where the defendant has entered a plea of guilty, received some probation, down the road violates the probation, enters pleas of true to the revocation, and then it’s within the range of punishment. There isn’t much there to raise.

There are criminal lawyers who disagree and have said, “I will never file an Anders brief.” They’re lawyers I respect and trust. If you’re hired for an appeal and you don’t find anything that you can raise in good faith, then you file a motion to dismiss and you’ve got to get your client’s signature. Most cases by far are affirmed or dismissed following 1 of those 2. You do see a number of modifications of judgments for clerical errors and money issues. We have been seeing the money issues and the court costs raised over the last several years. That’s still a big topic. Far fewer reverse and remands, or reverse and render is almost a unicorn, so it’s rare.

Reverse and render, in this context, it’s the criminal defendant who has appealed, and so a rendition would be a judgment of acquittal?


It would seem like a unicorn based on the sheer numbers. Give me one scenario or two, if you can think of it easily. What error would there have to be to get a rendition of a judgment of acquittal on appeal?

In one I appealed a case, and it was a jury charge error coupled with improper prosecutor argument. The Court of Appeals said, “This is just A) The jury charge was so bad, that’s going to require a reversal, but B) The argument that was made by the state requires a rendition.” The other one was a sufficiency, and I went to the Court of Criminal Appeals on that. It was two grandparents who had custody of their grandchildren. Grandchildren had burns on their feet. The injury to child case was tried. They were convicted. There was a problem with one of the experts who was being used by the state.

What I wanted to do in that case was to bring it back because we used to have both legal sufficiency evidence in Texas, as well as factual sufficiency. I wanted them to consider bringing back factual sufficiency. One of the questions I got in Austin was, “Assuming that we’re not going to bring back factual sufficiency, you don’t have any problem if we render for your clients, do you?” I said, “No.” It was a very good day for me. It was based on the sufficiency of the evidence. That’s why most of those are raised. The single biggest category of the appellate issue on the criminal side is legal sufficiency.

It’s such a difficult standard to overcome.

I do think many of us on the civil side have read Kent Rutter’s paper and rely on it in advising clients, not infrequently. I think your paper could accomplish the same thing to some degree on the criminal side. We’re certainly happy to help you get it out there in the world beyond the list of folks that attended your CLE program. That was an ambitious project. Now you just need to find someone to help you keep it up because a one-year snapshot of data is great, but what happens 1 or 2 years from now is you have to analyze whether the trends are holding.

That was interesting. I didn’t know what to expect with the transition from over the court with the new judges being sworn in. We didn’t see any statistical difference. The whole thought of we’ve elected judges from one party there. They’re going to do a better or worse job of keeping the public safe. Judges of this party are going to let everyone out of jail. It was not born up by the data at all. It might give some impetus to changing how we elect judges but that’s a whole different topic.

What advice would you have for somebody who’s maybe a lawyer starting out, or maybe a criminal defense lawyer who wants to get into appeals? How would you suggest they go about that?

Find out who’s doing the appeals in your area and have coffee with them. What you can do is start with if I’ve got an appeal, you can certainly help run facts or you can get motions from the lawyer. I’ve answered questions as simple as, “I’ve got a client in TDC, how do I go visit them?” “Here’s the process that you have to go through and here’s the paperwork you have to have.” Most areas of our state have local criminal defense associations. Certainly, the Texas Criminal Defense Lawyers is an outstanding group of folks. Get involved there. Let lawyers know, “I’d like to help you on an appeal and do something so that I can do this on my own in the future.” Lawyers will be receptive to that.

We’re getting toward the end of our time, and our tradition is always to ask for a tip or a war story. Do you have anything in mind you’d like to share with us?

I’m trying to think if you want funny or not.

If you can work out funny in a criminal case, I want to hear it.

hands of a person in prison
Criminal Appeals: The single biggest category of appellate issue on the criminal side is legal sufficiency.

If you get an oral argument at the Court of Criminal Appeals, you got to stay at the DoubleTree Suites right there off of the Capitol grounds and you have to have dinner the night before at the Texas Chili Parlor. That seems to be good luck. In all seriousness, in criminal appeals make sure with certain sections of your brief that you’re playing it right over the plate. In the factual section, in the procedural history of the case, that’s not the place to say, “The judge wrongfully made this decision.” The judge made the decision. Leave the argument for the argument section.

For many years, for better or worse, it was a point of pride for me when the state would read my brief and they have the opportunity to offer their version of the facts. They say, “Appellate counsel adequately addressed those.” That’s their factual section. You read the opinion and the opinion is lifted from your statement of facts in your brief. Honesty with the court is a very good thing. You can do other things to advocate for your client, but at least in that section it’s got to be clean so that they know if they trust you on the facts, then they’re going to be able to trust you on your interpretation of the law. They may disagree with it, but they know you’re making that argument in good faith.

That applies equally to the civil side, as does the tip about the DoubleTree and the Chili Parlor. That’s if you’re at the Texas Supreme Court.

They’re conveniently located, both of them, to the high courts. Jim, we sure enjoyed visiting with you and hearing about your practice. Every time we have someone who does criminal work, we learn a lot. It’s interesting to hear about how you run things in Tyler. A smaller city than where we are. You’ve been very gracious and thank you so much for coming on with us.

Thanks again, Jim. We sure appreciate you. We’re glad to have you on the show. Hopefully, our audience will learn as much as we did.

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About Jim Huggler

Jim Huggler

Jim Huggler is an attorney practicing criminal defense in both state and federal trial and appellate courts. He is Board Certified in Criminal Law and Criminal Appellate Law by the Texas Board of Legal Specialization. He also serves as a municipal court judge for the City of Tyler.

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