By Jason Bennyhoff
Assistant District Attorney in Fort Bend County
Standards of review are often thought of by trial prosecutors, if at all, as mere afterthoughts, or as solely the purview of appellate attorneys. However, understanding how different standards of review will apply to issues at trial when they make it to appeal can help a trial prosecutor prioritize issues and clearly lay out for the judge how his rulings will be reviewed. A thorough knowledge of standards of review can help a trial prosecutor understand what issues need to be hotly contested because they will be difficult to reverse on appeal. Further, such an understanding can help a trial prosecutor evaluate what issues may be amenable to a State’s appeal or cross appeal and can convince a trial judge to rule in the State’s favor by assuring the judge that her rulings will be granted deference on appeal.
What is a standard of review?
Standards of review at the appellate level are analogous to the burdens of proof at the trial level. “An appellate standard of review is the gauge by which an appellate court determines whether a trial court has erred in making a legal ruling or a fact finder has made an erroneous finding.”[1] Standards of review are important at trial and on appeal to “frame the issues, define the depth of review, assign power among judicial actors, and declare the proper materials to review.”[2]
The two standards of review which apply most often in criminal appeals in Texas are:
1) abuse of discretion and
2) de novo review.[3]
These will oftentimes appear in the resolution of the same issue in that the decision of certain facts will often be reviewed for an abuse of discretion, while the application of the law to those facts will be reviewed de novo, as in the suppression hearing context.[4]
Abuse of discretion
The abuse of discretion standard has been defined in numerous ways, but it is often referred to as where “the trial court’s ruling was at least within the zone of reasonable disagreement, [so that] the appellate court will not intercede.”[5]
The abuse of discretion standard of review applies in numerous scenarios that appear in the course of a criminal trial. For example, the trial court’s decision to admit or exclude evidence,[6] to grant or deny a mistrial,[7] and to grant or deny a motion for a new trial[8] are all reviewed for an abuse of discretion.
Of all the various standards of review, the abuse of discretion standard grants the greatest deference to the trial court’s rulings. This usually plays in the State’s favor because it is the State which is most often the proponent of affirmative evidence in a criminal trial, and if that evidence is admitted, the defendant will find himself with a high burden to overturn the trial court’s ruling. The prosecutor can also reassure a wavering judge that a ruling in the State’s favor will be entitled to significant deference on appeal.
The abuse of discretion standard can also be a detriment to the State where the State receives an unfavorable ruling, for example where evidence is suppressed on factual grounds, because the State faces a high burden to overturn the trial court’s ruling on a State’s appeal. This is in contrast to de novo review (covered below), wherein the State will have better odds of reversing a trial court’s ruling—for example, where the trial court suppresses evidence on legal grounds rather than on factual ones.
An example of a scenario where a trial court suppressed the State’s evidence on factual grounds can be found in State v. Ross.[9] In Ross, the defendant filed a motion to suppress evidence which alleged that there was no probable cause for his arrest.[10] The trial court granted the motion, finding that the arresting officer’s testimony was not credible.[11] Because the trial court’s ruling was based on a finding of fact, which itself was dependent on the trial judge’s evaluation of credibility and demeanor, the appellate courts refused to overrule the trial court judge’s decision and affirmed the suppression of evidence.[12] This is the kind of factual finding which, because it is dependent on the trial court’s evaluation of credibility and demeanor, is extremely difficult (if not impossible) to overturn on appeal. By contrast, where the parties stipulate to the facts and the only determination for the trial court is a question of how to apply the law to those facts, the standard of review on appeal will be de novo.[13]
De novo standard
De novo “means that an appellate court affords no deference to the lower court’s determination and the appellate court considers the matter as if it was the court of first instance.”[14] An appellate court will apply de novo review to a determination of any issue in which the trial court is not in an appreciably better position to make the determination than the appellate court.[15]
Generally, questions of law are reviewed de novo. This again is a standard of review that applies to many scenarios often arising in criminal trials. For example, the de novo standard of review applies to a trial court’s decision to quash an indictment,[16] to the application of the law to the facts in a suppression hearing,[17] to a determination of the constitutionality of a statute,[18] and to questions of statutory construction.[19]
For the trial prosecutor, an awareness of when de novo review applies to a trial court’s decision can be helpful in determining whether an adverse ruling is amenable to a State’s appeal or cross appeal. In the suppression context, being aware that an adverse ruling will be more amenable to an appeal if it is a ruling based on a legal conclusion rather than a factual finding is helpful to the trial prosecutor: If he can get the trial judge to state on the record that his ruling is based on a legal conclusion rather than a factual finding, that adverse ruling will be more amenable to a State’s appeal. This knowledge can also help a prosecutor craft findings of fact and conclusions of law in relation to a trial court’s ruling on a suppression hearing to place the ruling in a light more favorable to either defense or attack on appeal.
State v. Norris is an example where the appellate court engaged in a de novo review and ultimately found in the State’s favor on what might have looked, at first glance, like a factual issue.[20] In Norris, the trial court suppressed the defendant’s confession on the grounds that he had unambiguously asserted his right to counsel and police had not honored that invocation.[21] Because the facts were not in question (the trial court had nothing more at its disposal to review than the appellate court did), the appellate court engaged in its own evaluation of whether the defendant’s statements constituted an unambiguous invocation of his right to counsel by examining the defendant’s videotaped confession and its transcript.[22] After engaging in this independent review, the appellate court reversed the trial court’s ruling and admitted the defendant’s confession.[23] Because the appellate court reviewed how to apply the law to the facts in Norris, the State secured a reversal of the trial court’s suppression ruling.
By contrast, had the trial court’s suppression ruling in Norris been based on an evaluation of credibility and demeanor, such as a swearing match between the defendant and the police, and the trial court found the police to be not credible, the State would have had a very difficult time securing a reversal because the trial court’s ruling would be subject to the highest level of deference from the appellate court.
Error preservation issues
Trial prosecutors should keep in mind that while a knowledge of standards of review is helpful in determining what rulings by the trial court may be amenable to a State’s appeal, error preservation rules, at least in the context of most cross appeals, apply to the State as well as the defense.[24] Considering that the question of whether an argument has been waived is the first thing on the mind of any appellate practitioner, trial prosecutors would do well to keep the issue of error preservation in the back of their minds. While it is true that many scenarios which prosecutors may face adverse rulings in do not require such specific objections as are often required of the defense, it is nonetheless advisable to make clear and specific objections to any adverse ruling to protect the appellate record.[25]
For example, in State v. Jaquez, the trial court found several punishment enhancements to which the defendant pled “true” to be “not true.”[26] The State did not object at the punishment hearing, nor when sentence was pronounced.[27] The State argued that it should still be able to raise this issue on appeal because the trial court’s finding that the punishment enhancements were “not true” when the defendant had pled “true,” resulted in an illegal sentence.[28] The Austin Court of Appeals rejected the State’s argument, holding that because the trial court’s sentence was within the range of punishment (though that range of punishment was based on a finding of “not true” as to the punishment enhancements to which the defendant had pled “true”), the sentence was not illegal. Therefore, the State would have had to object to preserve any complaint about this issue.[29]
Likewise, when the State is the losing party at the trial level, the State can find itself precluded from raising a particular legal theory if it did not raise that theory at trial.[30] For example, in State v. Steelman, the defendant moved to suppress the results of the search of his home, relying on state statutory and constitutional grounds.[31] At the trial level, the State argued only that the initial warrantless search was lawful but did not argue that a subsequently obtained warrant attenuated any taint from the potential illegality of the initial warrantless search. On appeal, the State attempted to argue for the first time that the warrant attenuated any taint from the initial warrantless search, and the Court of Criminal Appeals held that the State could not advance this theory for the first time on appeal.[32]
Conclusion
Trials and pre-trial hearings on the admissibility of evidence are hard-fought battles. But, if I may borrow a line from Winston Churchill, they are not the end, they are not even the beginning of the end, but they are, perhaps, the end of the beginning. Pre-trial writs of habeas corpus challenging the constitutionality of statutes, interlocutory appeals of pre-trial suppression rulings, and appeals and habeas writs stemming from final convictions can take on lives of their own that far outlive the trial proceedings. Understanding how standards of review on appeal will impact the odds of your evidentiary rulings or jury verdicts surviving appellate review will help the diligent prosecutor craft the presentation of evidence and protect the record.
Further, understanding those standards of review can be helpful in your relationships with judges if you can explain how their decisions will be reviewed on appeal. Let’s hope such explanations will encourage them to rule in the State’s favor when the standards support that ruling. So give standards of review their due consideration—crime victims, judges, and your appellate division will thank you. Please feel free to contact me if I can be of any assistance.
[1] Ervin v. State, 331 S.W.3d 49, 57 at fn. 1 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (Jennings, concurring).
[2] Id., quoting Steven A. Childress, A 1995 Primer on Standards of Review in Federal Civil Appeals, 161 F.R.D. 123, 126 (1995) (internal citation omitted).
[3] There are other standards of review in Texas jurisprudence, and mixed standards of review, but this article is limited to the two most common standards for purposes of brevity and clarity. For an in-depth discussion of standards of review, see Dix & Schmolensky, Texas Practice Series: Criminal Practice and Procedure, Vol. 43B §§56:123–56:135 (Nov. 2023 Update).
[4] Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010) (holding that a trial court’s determination of historical facts will be granted “almost total deference” while the application of the law to the facts would be reviewed de novo).
[5] Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g).
[6] Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011).
[7] Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010).
[8] Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007).
[9] State v. Ross, 32 S.W.3d 853 (Tex. Crim. App. 2000).
[10] Id. at 854.
[11] Id. at 857 (concluding based on review of the record that although the trial court did not enter findings of fact and conclusions of law, the only logical basis for its ruling was a finding that the arresting officer was not credible).
[12] Id.
[13] See, e.g., Maxcey v. State, 990 S.W.2d 900, 903 (Tex. App.—Houston [14th Dist.] no pet.) (applying de novo standard of review on appeal to appeal of trial court’s denial of motion to suppress on stipulated facts).
[14] Tucker v. State, 369 S.W.3d 179, 187 (Tex. Crim. App. 2012) (Alcala, J., concurring), citing Black’s Law Dictionary 864 (2004).
[15] Villarreal v. State, 935 S.W.2d 134, 139 (Tex. Crim. App. 1996) (en banc) (McCormick, P.J., concurring).
[16] Smith v. State, 309 S.W.3d 10, 13-14 (Tex. Crim. App. 2010).
[17] Valtierra, 310 S.W.3d at 447.
[18] See Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007), cert. denied, 553 U.S. 1007 (2008) (applying de novo standard of review to a motion to quash an indictment based on a claim that the underlying statute criminalizing the conduct was unconstitutional).
[19] Boston v. State, 410 S.W.3d 321, 325 (Tex. Crim. App. 2013).
[20] State v. Norris, 541 S.W.3d 862 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d).
[21] Id. at 864-66.
[22] Id. at 866-67.
[23] Id. at 867.
[24] See Tex. R. App. P. 33.1; State v. Garrett, 798 S.W.2d 311, 313 (Tex. App.—Houston [1st Dist.] 1990, aff’d 824 S.W.2d 181 (Tex. Crim. App. 1992); see also State v. Salinas, 975 S.W.2d 717, 719 (Tex. App.—Corpus Christi 1998, no pet.) Yanez, J., concurring (for an appellate judge’s potential reaction to the State’s failure to specifically preserve error); but see Tex. Code Crim. Proc. Art. 44.01 (specifically allowing State’s appeals in several enumerated scenarios without a specific preservation requirement).
[25] See Garrett, 798 S.W.2d at 313 (State’s failure to object specifically to quashing of indictment did not bar appeal because Texas Code of Criminal Procedure Article 44.01 allows such an appeal).
[26] State v. Jaquez, No. 03-19-00087-CR, 2021 WL 476336 at *2 (Tex. App.—Austin Feb. 10, 2021, pet. ref’d) (mem. op., not designated for publication).
[27] Id. at *3.
[28] Id.
[29] Id. at *4.
[30] See, e.g., State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002) (State was not allowed, as losing party, to present alternative legal theories on appeal which it had not advanced at the trial level).
[31] Id. at 106.
[32] Id. at 107.