Appealing a Texas DWI Conviction

What an Appeal Is and Is Not

Almost everyone who lands on this page is holding the same mistaken idea, so it goes first.

An appeal is not a do-over. There is no new jury, no new witnesses, no second chance to tell your side, and nobody testifies. An appellate court reads the record made in the trial court, along with written briefs from both sides, and decides one question: whether a legal error occurred that requires the judgment to be undone.

So an appeal cannot fix a case that was simply lost. If the jury heard both sides and believed the State, disagreeing with them is not a ground of appeal. What an appeal can fix is a ruling the trial judge got wrong, evidence that should not have been admitted, a jury charge that misstated the law, or a record that does not legally support the verdict at all.

The corollary is uncomfortable and worth saying plainly: the appeal is largely decided before it begins, by what was objected to and preserved at trial.

Motion for New Trial

The first step is not the appeal. It is a motion filed back in the trial court asking the judge who heard the case to undo it.

The deadline is 30 days from the date the trial court imposes or suspends sentence in open court. It can be amended inside that same 30 day window, as long as the court has not already overruled a preceding motion. A motion filed after the 30 days is a nullity, because the trial court has no authority to act on it.

There is a second deadline underneath the first that catches people. Filing the motion is not enough. It has to be presented to the court, within 10 days of filing, unless the trial court permits presentment and hearing within 75 days of sentencing. Presentment just means bringing the motion to the court’s attention so it can be studied and set for a hearing, and it is satisfied by presenting it to the court coordinator and obtaining a hearing date. A motion that is filed and then sits is a motion that was never really made.

The grounds are set out in the rules and include things like jury misconduct that deprived the defendant of a fair and impartial trial and a verdict contrary to the law and the evidence. A trial court can also grant a new trial in the interest of justice on grounds outside the rule, but those are almost never granted, so a motion should cite a listed ground wherever one fits.

One more thing about this window: a hearing on a motion for new trial is a critical stage of the case, and the defendant is entitled to counsel at it.

Notice of Appeal

An appeal is perfected by filing a timely written notice of appeal with the trial court clerk, under Rule 25.2 of the Texas Rules of Appellate Procedure. Written, not oral, and filed with the trial court rather than the appellate court.

Without a motion for new trial: 30 days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order.

With a timely motion for new trial: 90 days after the day sentence is imposed or suspended in open court.

That is the practical reason to file a motion for new trial even where its chances are slim. It does not merely add a chance at relief in the trial court. It triples the time available to get the notice of appeal on file.

There is a narrow safety net. An appellate court may extend the time if, within 15 days after the deadline, the defendant files the notice of appeal in the trial court and files a motion to extend time in the appellate court. It is not a second deadline to plan around. It is a rescue, and it is discretionary.

What Can Be Raised on Appeal

Broadly, four categories.

Rulings on pretrial motions. The most common productive ground in a DWI appeal. A denied motion to suppress, litigated properly and ruled on in writing, is a legal ruling an appellate court can review. See Motion to Suppress.

Evidentiary rulings during trial. Evidence admitted over objection, or excluded despite an offer of proof, where the ruling was legally wrong and the error mattered.

Jury charge error. The instructions are the law the jury applied. If they misstated it, that is reviewable.

Sufficiency of the evidence. Not whether the jury should have believed the State, but whether the record legally supports the verdict at all. It is the narrowest and hardest of the four, and the one that matters most when it works, because an appellate acquittal for legally insufficient evidence is a route to expunction.

Why Preservation at Trial Decides the Appeal

Texas appellate law is strict about preservation, and the strictness is the whole game.

If nothing was objected to, there is generally nothing to appeal. An objection has to be made, at the right time, on the right ground, with a ruling on the record. Evidence conditionally admitted has to be revisited or the complaint is waived. A complaint about excluded evidence needs an offer of proof or a bill of exception, or the appellate court has nothing to look at.

This is why appellate outcomes are built in the trial court by lawyers who are thinking about the record while the trial is happening. See Jury Trial.

Can You Appeal a Guilty Plea?

Sometimes, and the answer is narrower than most people expect. It turns on how the plea was entered.

After a plea bargain where the punishment did not exceed what the prosecutor recommended and the defendant agreed to, the defendant may appeal only matters raised by written motion filed and ruled on before trial, or matters the trial court gives permission to appeal. In a felony, the notice of appeal itself has to say which of those applies.

Read that against what it means in practice. If a written pretrial motion was filed and ruled on, the ruling survives the plea and can be appealed. If no written motion was ever filed, there is close to nothing left. That is the strongest available argument against pleading guilty at a first setting, and it is covered on Arraignment.

After an open plea, meaning a plea entered without an agreement on punishment, the position is different. Texas law used to treat an open plea as waiving all non-jurisdictional defects. That changed with Young v. State in 2000: an open plea no longer waives the right to appeal the denial of a motion to suppress where the judgment would not stand without the evidence that was sought to be suppressed. A non-bargaining defendant may also be able to appeal an error that was not raised on a written pretrial motion, if it was otherwise preserved.

There is also a document that quietly controls all of this. In every case, the trial court signs a certification of the defendant’s right of appeal, and an appeal must be dismissed if a certification showing the defendant has that right is not in the record.

What Happens While the Appeal Is Pending

An appeal does not press pause on your life. Filing a notice of appeal does not by itself undo the conviction, and the consequences that flow from it do not automatically stop while an appellate court reads briefs. Appeals take months at a minimum, and often considerably longer.

Whether any part of a sentence can be suspended during an appeal, and on what conditions, is a separate question with its own rules and its own paperwork, and it is one of the first things to ask about rather than assume.

What an Appeal Costs

Two things people are not told, and both belong on this page.

An appeal is a separate engagement with a separate fee. Being represented at trial does not mean you are represented on appeal. See What a DWI Fee Does and Does Not Cover.

The record itself costs money. An appeal is decided on the record, which means the reporter’s record has to be transcribed and paid for, and it has to be requested. That is a separate expense from the attorney’s fee and it scales with how long the trial was.

If the Appeal Succeeds

Winning an appeal usually does not mean walking away. The most common result is a reversal and a remand, which sends the case back to the trial court, often for a new trial. The case is alive again, with the legal error corrected, which is frequently a much better case than the one that was tried.

The exception is worth knowing. Where an appellate court renders an acquittal, typically on legally insufficient evidence, that is an acquittal, and an acquittal opens a door nothing else does: it is a route to destroying the record entirely, and it is the only route that clears the license suspension references from a driving record. See Expunction and Every Way a Texas DWI Case Can End.

Appealing an ALR Decision Is a Different Case

If you lost the license hearing rather than the criminal case, none of the above applies to you.

An ALR appeal is a different proceeding on a different clock. It is filed within 30 days of the final ALR decision, in a county court at law in the county where you were arrested, which is not necessarily where you live. If that county has no county court at law, it goes to the county court instead. The rules are in Chapter 524 of the Transportation Code. Review is limited to the certified record made at the State Office of Administrative Hearings and is conducted under the substantial evidence rule rather than as a new trial, and there is no right to a jury.

Filing the appeal does not automatically keep you on the road. A stay of the suspension is available only if you have had no alcohol or drug related enforcement suspension in the five years before the arrest and no qualifying conviction in the ten years before it. Even when it applies, the stay lasts no more than 90 days from the date the petition is filed, and no one has the authority to extend it, which is why an occupational license is usually arranged as the bridge.

What an acquittal reaches on the license side, and what a dismissal does not, is on Expunction.

That is the whole of it here. The license case has its own page: The ALR Hearing.

Frequently Asked Questions

Can I appeal a DWI conviction in Texas?

Yes, if the deadlines are met and there is preserved legal error to raise. An appellate court reviews the trial record for legal error. It does not hear new evidence and does not reweigh what the jury already decided.

How long do I have to appeal a DWI in Texas?

The notice of appeal is due within 30 days after sentence is imposed or suspended in open court, extended to 90 days if a timely motion for new trial was filed. A narrow 15 day extension exists but is discretionary and should never be planned around.

What is a motion for new trial in Texas?

A motion filed back in the trial court within 30 days of sentencing asking that judge to undo the result. It must be presented to the court within 10 days of filing, or heard within 75 days of sentencing if the court permits, and filing it also extends the notice of appeal deadline to 90 days.

How do I file a notice of appeal in a Texas criminal case?

In writing, with the trial court clerk, within the applicable deadline. An oral statement in the courtroom is not enough, and a general notice of appeal is not sufficient after a plea-bargained conviction.

What happens on a DWI appeal?

The reporter’s record and the clerk’s record are prepared, both sides file briefs, the court may hear oral argument, and it issues a written opinion. Nobody testifies and no new evidence is considered.

Is an appeal a new trial?

No. It is a review of the record for legal error. If the appeal succeeds, the usual result is a reversal and a remand sending the case back to the trial court, which is where a new trial would then happen.

How much does a DWI appeal cost in Texas?

It is a separate engagement with a separate fee, because standard defense agreements generally end at the trial court. The reporter’s record is a separate cost again, since it has to be transcribed and the appeal is decided on it.

Can I appeal a guilty plea in Texas?

Only narrowly. After a plea bargain where the sentence matched the agreement, appeal is limited to matters raised by written motion filed and ruled on before trial, or matters the court permits. After an open plea the position is somewhat broader, particularly for a denied motion to suppress.