Cody Cofer is Board Certified in Criminal Appeals by the Texas Board of Legal Specialization (TBLS). Cody appeals criminal cases throughout the State of Texas and in federal courts, including the United States Court of Appeals for the Fifth Circuit and the United States Supreme Court.
What does it mean to be Board Certified in Criminal Appeals?
Before applying to become board certified, lawyers must verify their experience and reputation. Then the lawyer must pass the certification exam.
Experience
A lawyer must devote a minimum of 25% of his time practicing law in criminal appellate law during each year of the 5-year period of certification (2024).
Criminal appellate law is the practice of law in a criminal appellate case, which includes the following proceedings:
- Appeal or defense of a judgment or order in a criminal law matter, or juvenile adjudication, to an appellate court;
- Preparation of, or responding to, a petition for discretionary review or related brief to the Texas Court of Criminal Appeals;
- Prosecution or defense of an application for an extraordinary matter, such as Petition for Writ of Mandamus or Application for Original Habeas Corpus, to the Texas Court of Criminal Appeals, a Texas Court of Appeals, United States District Court, or United States Circuit Court of Appeals, in a criminal matter;
- Prosecution or defense of an application for post-conviction writ of habeas corpus from a misdemeanor conviction to a statutory county court exercising habeas corpus jurisdiction, or from a final felony conviction in Texas state court, either capital or non-capital;
- Prosecution or defense of an application for habeas corpus from a final felony conviction, either capital or non-capital, in United States District Court under 28 USC §2254, or 28 USC §2255;
- Prosecution or defense of an appeal to a United States Circuit Court of Appeals from the judgment of a United States District Court in an action under 28 USC §2254 or 28 USC §2255; or
- Prosecution or defense of any criminal law matter at the United States Supreme Court.
The courts that qualify for this experience are:
- United States Supreme Court;
- United States Circuit Courts of Appeals;
- Texas Supreme Court exercising jurisdiction over adjudications in a juvenile case;
- Texas Court of Criminal Appeals;
- Texas Courts of Appeals;
- Texas District Courts exercising post-conviction habeas corpus jurisdiction under Article
- V §8, Texas Constitution, or Articles 11.07, 11.071 or 11.072, Code of Criminal
- Procedure;
- United States District Courts exercising post-conviction habeas corpus jurisdiction under
- 28 USC §2254 or 28 USC §2255; and
- Statutory Texas county courts sitting as Courts of Appeals in cases under Title II, Chapter 30, Government Code or exercising post-conviction habeas corpus jurisdiction under Article V §16, Texas Constitution, or Article 11.072, Code of Criminal procedure.
Reputation
The TBLS requires lawyers to provide a total of 10 names of attorneys and/or judges to serve as references and attest to their competence in criminal appeals. For someone to qualify as a reference, the applying lawyer must have dealt with each of these references in the specialty area of law matter within the 3 years immediately preceding the application.
The references themselves must be substantially involved in Texas criminal appellate law. TBLS will check each of these references.
Five of the 10 references provided must meet the following requirements:
- 3 Texas attorneys who are substantially involved in the specialty area and familiar with your practice in criminal appeals
- 1 Texas attorney with whom or against whom you have tried a matter in criminal appellate law
- 1 judge of a court of record in Texas before whom you have appeared before as an advocate in the appeal of criminal cases
Criminal Appeals Certification Exam
A lawyer sitting for the exam is expected to understand all substantive and procedural law in criminal appeals, including professional responsibility and ethics. Examinees are expected to understand the entire process of appeals of state and federal criminal cases and applications for extraordinary relief and post-conviction writ proceedings in state and federal court. An examinee must also demonstrate the ability to:
- Communicate effectively and persuasively to clients, counsel, and appellate courts;
- Develop and evaluate strategies for solving a problem or accomplishing an objective;
- Analyze and apply legal rules and principles;
- Organize and manage a legal task efficiently within time constraints;
- Represent a client consistent with applicable ethical standards;
- Invoke and utilize the procedures normally required in the specialty area, including pleadings and filings;
- Evaluate the merits of a possible appeal; develop an appellate strategy and identify remedies;
- Draft motions, briefs, habeas applications for state and federal courts;
- Identify applicable deadlines and requisites of filings;
- Conduct investigations and research; assimilate and review records;
- Use appropriate citation forms and precedent;
- Distinguish effective briefs on direct appeal from those on discretionary review;
- Draft motions and findings relating to trial court determinations and
- Distinguish state and federal requirements for briefs and habeas applications.
The exam may cover any and all of the following:
Matters Arising in the Trial Court (State and Federal)
- A. Motion for new trial
- B. Preservation of error
- C. Certification of appeal
- D. Perfection of appeal
- E. Appeals from deferred adjudication and motions to revoke
- F. Orders and judgments that can be appealed
- G. Post-judgment orders, e.g., nunc pro tunc, resentencing, restitution
- H. The appellate record
- I. Indigency on appeal/appointed counsel/free record
Direct Appeal (State Courts of Appeal and Federal Fifth Circuit)
- A. Docketing statement
- B. Deadlines and timelines for appeal
- C. Appellate jurisdiction
- D. Requisites of the brief
- E. Motions
- F. Abatements and remands
- G. Anders briefs
- H. Non-record material and references
- I. Citation of authority; reasons for publication
- J. Standards of review
- K. Sufficiency of the evidence
- L. Opinions and mandates
- M. Motions for rehearing and reconsideration en banc
- N. Fundamental error / Structural error
- O. Harmless error
- P. Jury charges
Discretionary Review (CCA and Supreme Court of the United States)
- A. Deadlines and timelines
- B. Requisites of the petition
- C. Reasons for review
- D. Preservation issues in the CCA
- E. Degrate petitions
- F. Federal questions and petitions for certiorari
- G. Non-compliant petitions
- H. Motions
- I. Petition for discretionary review vs. brief on the merits
- J. Direct appeals in death penalty cases
- K. Petitions for certiorari in the U.S. Supreme Court
Writs of Habeas Corpus and Other Extraordinary Writs
- A. Pre-trial writs of habeas corpus
- (1) When appropriate
- (2) Cognizable issues
- (3) Subsequent Applications
- (4) Record
- (5) Filing
- B. Writs of mandamus and prohibition
- C. Misdemeanor post-conviction writs
- D. 11.072 writs–community supervision
- E. 11.07 post-conviction writs
- (1) Application form
- (2) Cognizable issues
- (3) Subsequent Applications
- (4) Subsequent writs
- (5) Deadlines and laches
- (6) Pleading requirements
- (7) Effect of State’s failure to respond; convicting court’s failure to act
- (8) Findings of fact and conclusions of law
- F. 11.071 post-conviction death penalty writs
- G. Federal writs under 28 U.S.C. §2254
- (1) Exhaustion
- (2) AEDPA
- (3) Timelines and deadlines
- (4) Application form
- (5) Procedural bars and equity issues
- H. Federal writs under 28 U.S.C. §2255
- I. Rule 60(b) of the Federal Rules of Civil Procedure
Miscellaneous
- Oral Argument
- Juvenile appeals
- Appeals from municipal and justice of the peace judgments
- Right to an attorney/self-representation
- Attorney obligations to inform the client
- State’s right to appeal–Art. 44.01
- Retroactivity of appellate decisions
- Bail on appeal
- Extradition appeals
- Chapter 64 appeals
- Expunctions
- Non-disclosures
- Competency to be executed
- Transfer of Cases on Appeals/Applicable Law and Stare Decisis
