Roy Jon v. State

• Court: Court of Appeals of Texas
• Decided: January 28, 2015
• Docket: 05-15-00075-CR
• Status: Published

Opinion

DISMISS; and Opinion Filed January 23, 2015.

Court of Appeals S In The

Fifth District of Texas at Dallas No. 05-15-00075-CR

ROY JON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 5 Dallas County, Texas Trial Court Cause No. W92-63805-L

MEMORANDUM OPINION Before Justices Bridges, Lang-Miers, and Myers Opinion by Justice Lang-Miers Roy Jon was convicted of delivery of a controlled substance and sentenced to twenty-five

years’ imprisonment in 1992. No appeal was taken from that conviction. Appellant has filed

several applications for writ of habeas corpus in both the state and federal courts. 1 On October

21, 2014, appellant filed an “application for writ of habeas corpus” in the trial court to obtain a

copy of the trial court record so that he can file a post-conviction application for writ of habeas

corpus. The trial court denied the “application” by written order dated December 18, 2014, and

this appeal followed. We conclude we lack jurisdiction over the appeal.

“Jurisdiction concerns the power of a court to hear and determine a case.” Olivo v. State,

918 S.W.2d 519, 522 (Tex. Crim. App. 1996). The jurisdiction of an appellate court must be

1 The background information is taken from the pro se brief appellant filed with his notice of appeal. legally invoked, and, if not, the power of the court to act is as absent as if it did not exist. See id.

at 523. “The standard to determine whether an appellate court has jurisdiction to hear and

determine a case ‘is not whether the appeal is precluded by law, but whether the appeal is

authorized by law.’” Blanton v. State, 369 S.W.3d 894, 902 (Tex. Crim. App. 2012) (quoting

Abbott v. State, 271 S.W.3d 694, 696–97 (Tex. Crim. App. 2008)). The right to appeal in a

criminal case is a statutorily created right. See McKinney v. State, 207 S.W.3d 366, 374 (Tex.

Crim. App. 2006); Griffin v. State, 145 S.W.3d 645, 646 (Tex. Crim. App. 2004). See also TEX.

CODE CRIM. P. ANN. art. 44.02 (West 2006) (providing right of appeal for defendant); TEX. R.

APP. P. 25.2(a)(2) (rules for appeal by defendant). Appellate courts may consider appeals by

criminal defendants only after conviction or the entry of an appealable order. See Wright v.

State, 969 S.W.2d 588, 589 (Tex. App.––Dallas 1998, no pet.).

In appellant’s first issue in his pro se brief, he contends he was denied the right to appeal

in 1992 due to ineffective assistance of counsel. In his second issue, he challenges the trial

court’s order denying his motion to obtain the trial record so that he can establish he was actually

innocent of the charges and that trial counsel was ineffective in not appealing the conviction.

An order denying a motion for post-conviction access to the trial court record is not an

appealable order. See Wright, 969 S.W.2d at 589. Moreover, this Court has no jurisdiction to

review appellant’s claim that trial counsel was ineffective in not filing a notice of appeal in 1992

and has no authority to grant appellant an out-of-time appeal. See TEX. R. APP. P. 26.2(a); Slaton

v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (per curiam).

–2– We dismiss the appeal for want of jurisdiction.

/Elizabeth Lang-Miers/ ELIZABETH LANG-MIERS JUSTICE

Do Not Publish TEX. R. APP. P. 47

150075F.U05

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

ROY JON, Appellant On Appeal from the Criminal District Court No. 5, Dallas County, Texas No. 05-15-00075-CR V. Trial Court Cause No. W92-63805-L. Opinion delivered by Justice Lang-Miers, THE STATE OF TEXAS, Appellee Justices Bridges and Myers participating.

Based on the Court’s opinion of this date, we DISMISS the appeal for want of jurisdiction.

Judgment entered this 23rd day of January, 2015.

–4–