Standards of Review in Texas.

This Article presents a substantial and comprehensive update of the standards of review applied by Texas appellate courts. It focuses on appellate standards for reviewing trial court rulings on pretrial, trial, and posttrial proceedings. Standards of review distribute power within the judicial branch by defining the relationship between trial and appellate courts. These standards “frame the issues, define the depth of review, assign power among judicial actors, and declare the proper materials to review.” Sometimes a trial court’s errors are so egregious and harmful that reversing the trial court is relatively simple.

When the trial court’s error is only marginal and its harmful effect is difficult to demonstrate, however, the likelihood of reversal becomes remote. Applying the appropriate standard of review to the proper scope of review to show error or lack of error is an essential prerequisite to success on appeal. Equally important to success on appeal is a forceful and persuasive brief which demonstrates the harmfulness or harmlessness of the error. While standards of review are, by their very nature, imprecise, they identify the fundamental questions for the reviewing court and narrow the focus of those questions for the court.

Without identification and application of the standard, an appellate brief will not present a persuasive argument. Although there are no guarantees of a successful outcome in the appellate process, the appellate advocate will be most effective when they focus on the applicable standard of review. They must demonstrate for the appellate court how that standard, as applied to the scope of review, mandates the result the appellant advocates.