Jon, Roy ( 2015 )


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  •                      xzs-(5
    NO,
    ORIGINAL
    IN    THE
    COURT    OF    CRIMINAL        APPEALS
    OF    TEXAS
    MAR 27 2015
    Abe! Ai^ss   •i9   'i^'3".
    ROY    JON   ,
    PETITIONER
    F^EO IN
    VS.
    COURTOF CRIMINAL APPEALS
    MAR 27 27,5
    Abel Acosta, Clerk
    STATE      OF    TEXAS
    RESPONDENTS
    PETITION          FOR    DISCRETIONARY        REVIEW
    ROY   JON
    TDCJ-ID     #626840
    Appearing PRO-SE
    NO.
    ROY      JON,
    PETITIONER
    VS.
    STATE   OF      TEXAS
    RESPONDENT.
    IDENTITY         OF   PARTIES
    THE    STATE    OF    TEXAS
    REPRESENTATIVE
    Craiq Watkins
    Frank Crowley Courts B^dg.
    133 N.       Riverfront       Blvd.,   LB 19
    Dallas,       Texas    75207-4399
    Hon.    Carter Thompson
    Judge presiding
    Criminal District Co^rt fjo.              5
    Frank Crowley Court Bldg..'
    133 N. Riverfront Blvd.'.LB              45,    5th   FL
    Dallas,       Texas    75207
    ROY    JON
    TDCJ-ID No.#626840
    Ellis    Unit
    «1,697 FM.     980
    lluntsville, TEXAS 75207
    Defendant-Petitioner
    TABLE   OF    CONTENTS
    _Pag_es_
    IDENTITY OF PARTIES AND COUNSEL                                           i
    TABLE OF CONTENTS                                                         ii
    INDEX OF AUTHORIES                                                        iii
    STATEMENT       OF       THE -CASE
    STATEMENT       OF       JURISDICTION
    ISSUES    PRESENTED          FOR     REVIEW
    STATEMENT OF THE             FACTS                                        4
    r   •
    SUMMARY OF THE ARGUMENT                                                   5
    ISSUE ONE                                                                 6-7
    ISSUE    TWO                                                              8-9
    PRAYER    FOR    RELIEF
    DECLARATION
    CERTIFICATE          OF    SERVICE
    ii
    INDEX       OF    AUTHORITIES
    FEDERAL    CASES                                                                                    PAGES
    DOUGLAS    VS.   CALIFORNIA,    
    372 U.S. 353
    ,          9    L.Ed.2d.811                          6
    GRIFFIN VS. ILLINOIS,. 
    351 U.S. 12
    , 100 L. Ed'.' 891                                                  6
    LANE VS. feoWN, 
    372 U.S. 477
    ,484,9 L.Ed.2d. '(;1963)                                                  7
    LONG VS.    DISTRICT COURT,      
    383 U.S. 192
    ,          17 L.Ed..2d.     (19&6)               7
    UNTIED STATES VS.      MacCOLLOM,      42.6 U.S.            317,325,         48 L.Ed.2d.   (1976)     7
    Conner vs. Henderson,. 
    517 F.2d 135
    (5th cir. 1975)                                                  7
    TEXAS   CASES                                                                                       PAGES
    TEXAS   CODE OF    CRIMINAL    PROCEDURE          RULE          26.04
    TEXAS CONSTITUTION       ARTICLE        V.    §        5,       6,   and 8
    in
    STATEMENT   OF   THE   CASE
    Petitioner filed his Writ Of Habeas Corpus pursuant      to articles 11.01;
    11.02; 11.04; and 11.05 of the Texas Code of Criminal procedure; and article
    1 section 12 and 5 section 8, of the Texas Constitution, requesting a com
    plete copy of his trial transcripts and/or for the court to loan him the
    transcripts for review..To show cause the petitioner clearly established
    that he was denied his right to a direct appeal by and through ineffective
    assistance         of   counsel.
    The writ of habeas corpus was filed in the criminal district court
    No. 5, Dallas County, Texas,           the Honorable Carter Thompson, Judge Presiding..
    The judgment of the trial court. Judge Thompson entered judgment denying
    petitioner's writ of habeas corpus on December 18,2014'.' see W92-63805.
    Petitioner appeal the judgment to the Court of Appeals Fifth District
    of   Texas    at   Dallas.
    The panel that decided ±fa& case was composed of Justices Lang-Miers,
    who delivered the opinion,          Bridges and Myers participating.   The court of
    appeals rendered           its judgment and issued an opinion on January 23,2015-
    ii   .
    see."     05-15-00075-CR.
    The opinion of the court of appeals is unpublished.
    The court of appeals dismissed the petitioner's appeal for want of
    jurisdiction
    STATEMENT   OF   JURISDICTION
    The Court of Criminal Appeals has jurisdiction over this appeal because
    it Involves a question of         federal law,      and is authorized by the Texas Consti
    tution   article   V.   section   8.
    2.
    ISSUES   PRESENTED   FOR   REVIEW
    ISSUE   ONE:   Does the petitioner have a federal      and state constitutional
    right to appeal his felony conviction ?
    ISSUE TWO_:    Does the petitioner have a federal and state constitutional
    right to review his trial   transcripts ?
    3.
    STATEMENT   OF   THE   FACTS
    The trial court erred in its opinion on December 18,2014, because his
    application was not based on using the transcripts to prepare the petition
    er's application for a post-conviction writ of habeas corpus. Petitioner
    alleged that he was denied his right to a direct appeal by and through
    ineffective assistance of counsel,     his requestfor a complete copy of the
    transcripts and/or to simply allow him to review the transcripts on a temp
    orary loan basis was within the Texas Code of Criminal Procedure. The trial
    court is invested with the judicial authority to preside and adminster
    the law in a court of justice. His official oath declares that he will
    faithfully discharge the duties of the same.
    It is clear by the trail court recourts that the appellant was denied
    his right to a direct appeal. Appellant has a valid claim of ineffective
    assistance of   counsel,   when his trial counsel failed to. file a requested
    notice of appeal. Thus, it is obviously clear that his State and Federal
    Constitutional rights has been impeded on by his trial counsel and the
    trial court. There are issues that must be resolved and the trial court
    has a judicial duty to correct a miscarriage of justice. The trial court •
    has deprived the petitioner for (20) twenty years his constitutional right
    to review the transcripts.
    Petitioner need not prove his entitlement to review the records because
    he has established a prima facie on the face of the records that he has
    been denied a diect appeal and that his trial counsel was ineffective in
    his duty to represent him in a court of law. This is all that is required
    by State and Federal law. see the recourt submitted in this case.
    4.
    SUMMARY   OF   THE   ARGUMENT
    Petitioner has a constitutional and statutory right to access to his
    trial court transcripts by and through the Texas Constitution,   that is
    supported by the fourteenth amendment to the United States Constitution.
    The trial courts "ORDER" would abridge the petitioner'1 s State and Federal
    constitutional right to adequately present his claims befor the trial
    court.
    5.
    ARGUMENT
    ISSUE ONEj     Does the petitioner have a federal and state constitutional
    right to appeal his felony conviction ?
    ARGMENT   &     AUTHORITY
    Petitioner pleaded not guilty to the charges of delivery of a controlled substance.
    He contends that there was "NO" evidence provided to the court in which to establish his
    guilty verdict. The prosecutor withheld a material witness that would have determine the
    petitioner's innocence. Petitioner-requested to his trial counsel his desire to appeal
    the courts judgment, and his counsel failed to comply with, his request. In doing so,
    ii
    petitioner filed a pro-se notice of appeal, petitioner's trial counsel was aware that
    the petitioner was attempting to appeal his conviction and he maliciously interferred
    with the process of his appeal by not informing the courts that petitioner wrote him on
    numerous occasions requesting assisance with his appeal and he lied to the court that
    petitioner did not request to appeal his conviction.
    The trial court and the district clerk refuse to process petitioner's pro-se notice
    of appeal, and failed to appoint an attorney to present him on.appeal, petitioner argues
    that the Texas Code of Criminal Procedure article 26.04 (Vernon 1989), provides that an
    attorney appointed to represent a defendant in a felony case, "shall represent the defendant
    until the charges are dismissed, defendant is acquitted, appeals are exhausted, or khe
    attorney is relieved of his duties by the court or replaced by another counsel. In this
    case the trial counsel was aware of the petitioner's desire to appeal and failed to file
    the appropriate documentation such as: Notice of Appeal; motion for new trial; and motion
    for appointment of appellate counsel or to withdraw as counsel". The petitioner's pro-se
    notice of appeal give the trial court, di-strict clerk, and trial counsel notice of his
    constitutional right to appeal the courts judgment or his desire to appeal his conviction.
    The petitioner successfully met his burden of showing that he was not represented by counsel
    during a critical stage of the prosecution and therefore "GOOD CAUSE" exist under the
    ii*.                                              !
    Texas Rule Appellate procedure , Rule 2(b) to suspend the requirement of the Texas Rule
    of Appellate Procedure, Rule 31(a)(1).
    6.
    The Texas Constitution set out appellate jurisdiction of both the Court of Criminal
    Appeal and the Court of Appeals, see Texas Constitution, article V. § 5 (Provides that
    criminal jurisdiction in an appellate-court is held in the court of criminal appeals).
    Texas Constitution article   V. § 6 (provides for appellate jurisdiction for the court of
    appeals). Thus, the right to appeal a felony conviction in Texas is Statutory and not
    constitutional.
    n
    Petitioner contends that it is evident that he is and was indigent at the time of his
    trial and he did not receive any practical assistance of counsel in protecting and preser
    ving his appellate rights to appeal his conviction. Thus, he has been denied effective
    assistance of counsel on appeal in violation of his due process right under the Fourteenth
    Amendment and his due course of law rights under atticle 1 § 10, the Hill of Rights
    were also violated, see   GRIFFIN VS. ILLINOSIS, 
    351 U.S. 12
    (1956); and DOUGLAS VS.
    CALIFORNIA, 
    371 U.S. 353
    (1963).
    7.
    ARGUMENT
    ISSUE TWO:      Does the petitioner have a federal and state constitutional
    right to review his trial transcripts ?
    ARGUMENT   &   AUTHORITY
    The   trial court has ordered that the appellant be denied a complete copy of the
    transcripts for free, in order to prepare his application for a post-convictioih writ of
    habeas corpus. The court comcluded that the petitioner failed to sufficiently state a
    particularize need for the requested transcripts. The trial court failed to address the
    petitioner's request for a loan of the transcripts for a limitee time, see cause no.
    W92-63805-L, ORDER dated December 18,2014.
    In Griffin Vs. Illinsis, plurality the Supreme Court held that "[driestitute defendant
    must be afforded as adequate appellate review as defendants who have money enough to buy
    transcript", Lane Vs. "drown, 
    372 U.S. 477
    , 484, 
    83 S. Ct. 768
    , 772, 9 L.Ed.2d. 882(1963).
    extended "the Griffin principle [to}: appl[y-| to state collateral proceedings".
    Indigents must be furnished a copy of the transcripts for appellate review of an adverse
    decision in post-conviction proceedings. Long Vs. District Court, 
    385 U.S. 192
    , 
    87 S. Ct. 362
    , 17 L.Ed.2d. 290(1966)(PER CURIAM).   This principle is equally applicable to proceeding
    in federal courts collaterally attacking state convictions, and we do not understand the
    state to contends otherwise in the present case.
    Indigents, however, cannot obtain transcripts merely to serach for qrounds for relief
    Bonner Vs. Henderson, 
    517 F.2d 135
    (5th cir.1975)(PER CURIAM). The district court has
    the power to order a free transcript furnished, [for an indigent] if it finds that the,
    suit is not frivolous and that the transcripts is needed to decide the issue presented.
    United States Vs. MacCollom, 426 U.S. 317,325, 96 S.Ct. 2086,2091, 48 L.Ed.2d.666 (1976)
    (plurality opinion)(quoting 28 U.S.C. § 753(f)). The cause is frivolous "if the petitioner
    can make no rational argment in law or facts to support his claim for relief".
    a
    In the appellant's application under article's, 11.01; 11.02; 11.04; and 11.':'05, where
    he alleged facts that if liberally construed, the "inartful pleadings", he clearly stated
    that he was actually innocence of the charged indictment, and that his trial counsel was
    ineffective because he did not file his requested "NOTICE OF APPEAL", and there was alle
    gations that the state withheld a material or alibi witness to this crime he is being
    convicted of, and the witness could have proved that the petitioner was innocence.
    This assertion, on its face, alleges more than ineffectivenesss because of a failure to
    appeal. It is broad enough to encompass all aspects of counsel's performance, and the
    court's duty is to contrue pro-se pleadings liberally.
    PRAYER FOR RELIEF
    Based upon the undisputed facts, the law and arguments contained hereinq, petitioner
    respectfully prays that this court sustain petitioner, is issues and allow his access to
    the trial court transcripts.
    DECLARATION
    I, ROY JON, TDCJ NO.#626840, declare under penality of perjury that the foreqoinq
    is true and correct to the best of his ability pursuant to 28 U.S.C. § 1746* •
    i>y"X
    ROY JON (#J626840J    pro-se
    CERTIFICATE OF SERVICE
    I,ROY JON, 626840, do hereby certify that a true and correct copy of the above
    "PETITION FOR DISCRETIONARY REVIEW':, has been served by placing same in the U.S. Mail
    Box on this 23 rd. day of March 2015.     addressed to
    Abel Acosta      Clerk
    Court of Criminal Apeals                                    RESPECTFULLY SUBMITTED
    Supreme Court Bldg.
    201 W. 14th St.' Rm. 106
    Austin, Texas 78711-2308                                       ^"N^h^A , -\^         ) tf"
    ROY JON #62*8~40    pi
    O.B*. EllisMJnit
    1697 FM.   980
    Huntsville, Texas 73340
    C.C.   FILED
    DISMISS; and Opinion Filed January 23, 2015.
    In The
    Court of Appeals
    3Ftfti? district of QJexas at Ballaa
    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 lackjurisdiction 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
    1The background information is taken from the pro se brief appellant filed with his notice ofappeal.
    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).
    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-
    Court of Appeals
    ifftftfj district of Qtexas 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.
    -A-