Charles Randall Kay v. State

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-15-00169-CR
CHARLES RANDALL KAY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 62nd District Court
Franklin County, Texas
Trial Court No. F8162
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Charles Randall Kay was convicted of theft on March 4, 2008. Kay timely filed a notice
of appeal from that judgment, and this Court’s opinion affirming Kay’s theft conviction in trial
court cause number F8162 issued on May 6, 2009.
On February 10, 2014, Kay filed a “Motion for Appointment of Counsel to Raise
Applicant’s Ineffective Assistance of Counsel Claims” in the trial court under cause number
F8162. On August 28, 2015, the trial court denied Kay’s motion for appointment of counsel. Kay
attempts to appeal from the denial of his motion for appointment of counsel. Even if the trial court
had jurisdiction to rule on Kay’s motion,1 it nevertheless appears that the order denying the motion
for appointment of counsel to pursue a post-conviction ineffective assistance of counsel claim is
not an appealable order.
As a general rule, the Texas Legislature has only authorized appeals by criminal defendants
from written judgments of conviction. See Gutierrez v. State, 307 S.W.3d 318, 321 (Tex. Crim.
App. 2010); Ex parte Shumake, 953 S.W.2d 842, 844 (Tex. App.—Austin 1997, no pet.). There
are a few very limited exceptions to this general rule, see Wright v. State, 969 S.W.2d 588, 589
(Tex. App.—Dallas 1998, no pet.), but in the absence of an appealable judgment or order, we are
without jurisdiction to hear an appeal. Kay had the right to appeal from the written judgment of
conviction in trial court cause number F8162, and he exercised that right. The trial court’s order
1
In the absence of the filing of a post-judgment motion, the trial court’s plenary power expires thirty days after the
sentence or appealable order. See TEX. R. APP. 21.4; State v. Aguilera, 165 S.W.3d 695, 697–98 (Tex. Crim. App.
2005).
2
denying Kay’s request for appointment of counsel to raise a post-conviction ineffective assistance
of counsel claim is not an order from which the Texas Legislature has authorized an appeal.
By letter dated November 20, 2015, we notified Kay of this potential defect in our
jurisdiction and afforded him the opportunity to respond. We have received no response.
In light of the foregoing, we dismiss this appeal for want of jurisdiction.
Bailey C. Moseley
Justice
Date Submitted: December 8, 2015
Date Decided: December 9, 2015
Do Not Publish
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