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AlexiaEsq.
AlexiaEsq., Managing Attorney
Category: Criminal Law
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Experience:  19+ Years of Legal Practice in Criminal Law.
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Alexia: PLEASE, PLEASE, PLEASE, IS THIS EXPERT RIGHT??? It

Customer Question

Alexia: PLEASE, PLEASE, PLEASE, IS THIS EXPERT RIGHT???

It is going to be a de novo review and will be an entirely new trial. You don't get to argue what the lower court did wrong in a trial appealed from the lower court to a county court at law, it is a new trial and you have to present evidence, witnesses, etc.
Submitted: 1 year ago.
Category: Criminal Law
Expert:  AlexiaEsq. replied 1 year ago.
You need to clarify the context. Are you talking about a trial or an appellate review? Can you give me the link?
Customer: replied 1 year ago.



You replied




Monday, February 25, 2013 9:26 AM EST





Greeting Sir,




I’ve been “digesting” your answer to me, and I think I’m beginning to understand how “review” applies to my case. My case review must be “abuse of discretion” because I’m appealing from a municipal (court of record) to a higher court – is that right?












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You have received an Answer!


From JD 1992



Monday, February 25, 2013 10:09 AM EST




No, but this stuff is tricky.

If you are appealing from a municipal court then 1) it usually isn't a court of record (has a court reporter present) and 2) the trial will probably be de novo.

Basically, if you are going to conduct a trial again, it is de novo. If you are going to submit a brief, not offer new evidence and not call any witnesses, and just argue it before a judge or judges then most points are going to be an abuse of discretion.




















You replied




Monday, February 25, 2013 1:53 PM EST





Then I am getting the hang of it because this particular municipal court is (a court of record) and I’m not offering new evidence. Instead, I’m calling attention to the glaring mistakes of the trial court.














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Your Expert needs more information


From JD 1992



Monday, February 25, 2013 2:01 PM EST




What court are you appealing to?




















You replied




Monday, February 25, 2013 2:12 PM EST





Here in Austin Tx, I'm informed that this municipal court's appeals are heard by the Travis County Court at Law.














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Expert












You have received an Answer!


From JD 1992



Monday, February 25, 2013 2:15 PM EST




It is going to be a de novo review and will be an entirely new trial. You don't get to argue what the lower court did wrong in a trial appealed from the lower court to a county court at law, it is a new trial and you have to present evidence, witnesses, etc.




















You replied




Monday, February 25, 2013 2:38 PM EST





I have full respect for what you & what you say, but your conclusion contradicts everything told to me by the trial court supervisor, trial court clerks, and the trial court judge (himself) who advised that the appeals court may remind the case back to him. Please explain why you believe this matter is de novo?














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Your Expert needs more information


From JD 1992



Monday, February 25, 2013 2:43 PM EST




Because that is the way it works in Texas.

What is the subject matter of the case? A ticket?




















You replied




Monday, February 25, 2013 2:49 PM EST





Yes, a traffic ticket. This municipal court is a criminal court of record.




I can't believe this is happening. I've spent time and money for the transcript, etc...














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Expert












You have received an Answer!


From JD 1992



Monday, February 25, 2013 2:57 PM EST




If you have gotten a transcript of the proceeding and the County Court at Law recognizes the transcript as being legitimate then that changes things and the court can review the case as an appellate court although that is extremely unusual and you need to check with the county court at law to be sure that the case will be heard as an appeal style case rather than a "trial de novo".

The reason most cases are trials de novo in the county court or county court at law is because the lower court is not a court of record. I have heard of some claim they are when they are actually not, but if yo have paid for and they have prepared a transcript then it likely meets the requirement and they would be using an abuse of discretion in most matters.

The County Court at Law can always decide that a trial de novo is necessary so be sure and check with them to see which one you are going to have.




















You replied




Monday, February 25, 2013 3:07 PM EST





God bless you sir! I would prefer a De Novo hearing as oppose to an abuse of discretion. Is it possible that I can motion to the court to hear this matter as De Novo?














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You have received an Answer!


From JD 1992



Monday, February 25, 2013 3:10 PM EST




You can certainly request that "in the interest of judicial economy" that it be a trial de novo. You may want to talk to the prosecutor ahead of time and ask if they will agree to that.




















You replied




Monday, February 25, 2013 3:15 PM EST





Can you refer me to a suitable motion type & template that I follow in writing my motion? God bless you again!













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From JD 1992



Monday, February 25, 2013 3:22 PM EST




Unfortunately, I can't. There is not a good internet source for motions like this because they aren't seen often enough. However, Texas is a "liberal pleadings" state which means that all you have to do is get the idea across.

Be sure and talk to the prosecutor about whether they will agree to a trial de novo because if they oppose it the judge isn't going to do it.
Expert:  AlexiaEsq. replied 1 year ago.
Hi again, and thank you for clarifying:

IS THIS EXPERT RIGHT??? Yes, in that a trial de novo is just that - another bite at the apple, a whole new trial, entirely, and all that that entails. However, in your case, I don't see that can have a trial de novo from this appeal - being that you were in a court of record. See why I say this, below:

It is going to be a de novo review and will be an entirely new trial. That occurs when the municipal court is not a court of record. Here, you are in Austin, and that is a court of record.

As per the

Art. 45.042. APPEAL. (a) Appeals from a justice or municipal
court, including appeals from final judgments in bond forfeiture
proceedings, shall be heard by the county court except in cases
where the county court has no jurisdiction, in which counties such
appeals shall be heard by the proper court.
(b) Unless the appeal is taken from a municipal court of
record and the appeal is based on error reflected in the record
, the
trial shall be de novo...." LINK

You don't get to argue what the lower court did wrong in a trial appealed from the lower court to a county court at law, THis is true IF you have trial de novo. But that does not appear to be applicable to your court, which is of record. There is a transcript of the hearing.

TEX GV. CODE ANN. § 30.00014 : Texas Statutes - Section 30.00014: APPEAL

"...
(b) The appellate court shall determine each appeal from a municipal court of record conviction and each appeal from the state on the basis of the errors that are set forth in the appellant's motion for new trial and that are presented in the clerk's record and reporter's record prepared from the proceedings leading to the conviction or appeal. An appeal from the municipal court of record may not be by trial de novo." LINK

it is a new trial and you have to present evidence, witnesses, etc. That would be so if a new trial were granted.
Yes, a new trial is a new trial, the whole 9 yards. But you don't have that option. As far as I know, there is no discretionand the State can not agree to it. Not that it would - it would be recurring cost to the taxpayers to have 2 trials whenever a defendent lost at trial. It would make no sense, when there is a record for the Appellate court to review for error.

I know we wish it were a new trial at this point - easier to win second time around. But I just don't see it, based on these various cross referenced rules in Texas, in your particular court. I am sorry :(


I hope this helps! Let me know if you need follow up before or after RATING me. And PLEASE know that my job depends on a POSITIVE rating now and at least an 8-10 feedback rating later. Thanks! I won't forget your support.

Sincerely,

Alexia Esq.



-------



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AlexiaEsq., Managing Attorney
Category: Criminal Law
Satisfied Customers: 11700
Experience: 19+ Years of Legal Practice in Criminal Law.
AlexiaEsq. and 8 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.

Sorry for the delay, I had to go to work.


I see what you mean by read, read, read, and read the rules again.


You’re a hell of a person and obviously a terrific lawyer!


Please don’t be insulted by the small tip. I’ll send more as I get it.

Expert:  AlexiaEsq. replied 1 year ago.
Are you kidding, any bonus at all is greatly appreciated. Much thanks to you!

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