Cory Ray Shelby v. State

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-20-00139-CR ___________________________

CORY RAY SHELBY, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 372nd District Court Tarrant County, Texas Trial Court No. 1601893

Before Kerr, Birdwell, and Bassel, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION

Cory Ray Shelby, proceeding pro se, attempts to appeal from the trial court’s

alleged “failure to make formal inquiry into Marsden hearing [and]/or motion to

substitute counsel.”1

Generally, this court has jurisdiction to consider appeals by criminal defendants

only after a judgment of conviction. See McKown v. State, 915 S.W.2d 160, 161 (Tex.

App.—Fort Worth 1996, no pet.) (per curiam). “We do not have jurisdiction to

review interlocutory orders unless that jurisdiction has been expressly granted to us by

law.” Id.

We notified Shelby of our concern that we lack jurisdiction over this appeal

because the trial court had not entered any appealable orders. We informed him that

we could dismiss the appeal for want of jurisdiction unless, within ten days, he or any

party wanting to continue the appeal filed a response showing grounds for continuing

the appeal. See Tex. R. App. P. 43.2(f), 44.3. Ten days have passed, and we have

received no response. Accordingly, we dismiss this appeal for want of jurisdiction. See

Tex. R. App. P. 43.2(f).

People v. Marsden, 465 P.2d 44 (Cal. 1970), is “the seminal [California] case 1

regarding the substitution of appointed counsel.” People v. Horton, 906 P.2d 478, 498 (Cal. 1995). In Marsden, the California Supreme Court held that a trial court must afford a criminal defendant who has moved for substitute counsel based on his appointed counsel’s ineffective assistance the opportunity to explain the bases for his claims because “a judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant’s offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney.” Marsden, 465 P.2d at 48.

2 /s/ Elizabeth Kerr Elizabeth Kerr Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: January 7, 2021