Perfectly balanced scale.

When it is a Good Idea to do a Motion for New Trial in State Court

Civil Cases:

In all civil cases tried to a jury you should consider doing a motion for new trial. Rule 324(b) of the Texas Rules of Appellate Procedure provides a list of circumstances under which it is required to file a motion for new trial to preserve error.

In civil cases tried to the bench, it is generally not required to file a motion for new trial unless there is evidence that needs to be presented to the Court that was not presented during trial.

Criminal Cases:

Unlike civil trials, there is no requirement that the Defendant/Appellant file a motion for new trial to preserve issues for appeal. In many instances, however, it is a good idea. It is my contention that the appellate attorney should look at the motion for new trial as an opportunity to create error for appeal. Too often this is just over looked and no attention is given to it.

In Dallas County, many attorneys will file a motion for new trial on a form provided by the trial court. The form reads:

Now comes the Defendant in the above cause and by his Attorney, and moves the Court to grant him a New Trial herein for the good and sufficient reason that the verdict is contrary to the law and the evidence. Wherefore, Defendant prays the Court grant a new trial herein.

I’ve worked on capital murder cases in which this motion was filed. One of the most troublesome issues with this motion is that if the trial court rules on this motion, then the appellate attorney may not file another motion. If the trial court does not rule on the motion, then the appellate attorney has an opportunity to file an amended motion.

The Dallas motion does nothing for the client and is instead presented to extend the appellate timetables for the court reporter. I think it is also presented to protect the trial attorney.

In a criminal case, a motion for new trial is helpful even a requirement if the Defendant/Appellant needs to introduce evidence from a source outside of the record. So if a plea was involuntary because the attorney pressured the client into accepting it or if the defendant/appellant was tried in identifiable-jail issued clothing and that was not addressed on the record, then it is important to file a motion for new trial.

Rule 21.3 of the Texas Rules of Appellate Procedure provides a list of circumstances in which a trial court in a criminal case must grant a new trial. The most important of these is Rule 21.3(b), which states that a new trial must be granted if the court has misdirected the jury about the law.

Rule 21.3 is important because jury charges do not receive the attention that they should in criminal court. Errors in the jury charge offer an appellate attorney an opportunity to file a motion for new trial under Rule 21.3(b).

Defendants/Appellants should ask their appellate attorney to explain what the strategy is with the motion for new trial.