                             PD-0225-15



5^mEroe coa^T BUft,                             courtofcrKlappeaib
Ho{ IM iHtH Si; f?nn |£k                            FEB 24201!
kusT/W 1 TtfKA^ 1371/ "^^08



«£». SW£of lEK^S Js. feV cW                         COURT OF CRIMINALAPPEALS
      AflPdUnT"Mo. os-is-oqois-cz                         Tl3 27 z:;3
                                                        Abel Acosta, Clerk
E^EAK MS. k£G>s»rA>


     £MCi&s£<J fl€A&£ FfMel THe •/eo(fotM/A/^. n<dfeum&*Ts> To -bg Fti&J
 iM Vouie ofF/c£, Ttf£ ^>u^f RLf»s£ To FdWum^ TH£ cbcamewTS
afte£ rr tfute w irdid m*t Ave au*isJieTie/o To te^ me*^
 af Mft*<£ AuTfrog/YYTo fofca^ TW£ ^ca^fiWTS 73 WE cWToF
 dft^iM*df Am>b< -mesc aiocci/nEAir^ ar€ am ^re^l FfcOT w TW
 CounS* Gl^me^T; MScAcosTA, X Ann fitauEsTristt "RteT TRE IKsT^^Qr^
 h& f I*£J&J -btfa^E. m OusTicES Ia/ You£ dxxJ^T To tee. MY Meads


                                            ftcTFulW su&rniTisJ
                                        ^




                                       U,T7 F/n^W
     ,1                                tiuNis^(l€(T£^^ yr^Ho
oc
                                            IN THE

                                    COURT OF APPEALS

                            FIFTH DISTRICT OF TEXAS AT DALLAS




                                     HO. 05-15-00075




                                  ROY JON,     Appellant

                                             vs.


                             THE STATE OF TEXAS*       Appellee




                          On appeal from the Court of APPEALS

                            Fifth District Of Texas at Dallas

                           Trial Court Cause No*      W92-63805-L

                              Appellate Nuber 05-15-00075




                                    NOTICE OF APPEAL




    Notice is hereby given that the defendant ROY JON, Appearing Pro-se, in the above
appellate number appeals from the ORDER, entered on January 23# 2015 and the Trail
Court ORDER entered on December 18, 2014.

    This appeal follows the denial of his application for Writ of Habeas Corpus filed
on or about Novefflber 08,2014, pursuant to Art. 11.01* 11.02* 11.04? and 11.05 of the
Texas Code of Criminal Procedure, and Art. 1 aect. 12, and Art. 5 sect. 8, of the
Texas Constitution.


                                                     RESPECTFULLY SUBMITTED



                                                     ROY JON §6,26840 Appearing Pro-Se
Order entered February 11, 2015




                                              In The

                                    Court of gppeate
                           Jftfty Btetrict of %txM at ©alias!

                                       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


                                             ORDER

       On January 23, 2015, we dismissed the appeal in this case for want of jurisdiction. The
Court now has before it appellant's February 10, 2015 "Motion to Transfer Original Notice of
Appeal, Appeal Brief, and Attached Exhibits" to the Clerk of the Texas Court of Criminal
Appeals to have them "filed in this appeal." Appellant does not state that he has filed a petition
for discretionary review, and the Texas Court of Criminal Appeals has neither notified the Court
that a petition for discretionary review has been filed nor directed this Court to forward copies of
the documents in this appeal. See Tex. R. App. P. 68.7. Accordingly, we DENY appellant's
motion to the extent that he asks the Court to transfer the documents to the Court of Criminal

Appeals.
       We DIRECT the Clerk of this Court to send appellant, by first-class mail, copies of his
pro se brief and his notice of appeal, with all attachments, together with a copy of this order.
                                                       /s/    ELIZABETH LANG-MIERS
                                                              JUSTICE
                                            *H»w>H'M'tojwnn«w«




                          OS-l 5.-0001.5'C^                                   RECEIVED
                                                                              Court of Appeals
                                                                               JAN 1 6 2015
                            CAUSE NO.   W92-63805-L
                                                                             „, Lisa Matz
                                                                             Clerk, 5th District
STATE OF TEXAS                          §             IN THE CRIMINAL


VS.                                     %             DISTRICT COURT NO. 5


ROY JON                                 \             DALLAS COUNTY, TEXAS



                               NOTICE OF APPEAL



      Notice is hereby given that the defendant ROY JON, appearimH
PRO-SB, in the above cause number appeals from the ORDER, entered on
December 18,   2084.


      This appeal follows the denial of his application for Writ of Habeas
Corpus filed on or about November 08,2014, pursuant to art. 11.01} 11.02}
11.04} and 11.05 or The Texas Code of Criminal Procedure, and art. 1 sect.
12, and art. 5 seet. 8, of the Trxas Constitution,                  in requesting the
complete    transclpts in order to show that the defendant did not receive
effective assistance of counsel during his State Trial and to show that
he was denied his right to appeal his conviction in the above cause number
Griffin vs. Illinois, 351 u.s. 18, loo L.Bd. 891, 78 s.ct 58S$iti#).


                                                                 RESPECTFULLY SUBMITTED




                                                                 %            £1
                                                                 ROY JOM0Appearing Pro-Se
                                                          \
                                                                 TDCJ_£« No. #626840
                                                                 1697 FN 980       s
                                                                 Huntaville* Texas 77340

CC. FILED
r




    December 09,2015


    Gary Fitzsimmons
    District Clerk
    Frank Crowley Courts Building
    133 N. Industrial Blvd. LB 12
    Dallas, Texas 75207-4313



    RE}   NOTICB OF APPEAL




    Dear Mr.Fitzsimmons,     sir.


          Enclosed please find the following instruments to be filed in your
    office, that is in reference to cause no. W92-63805-L. I AM RBQUBSTInJI
    a return receipt of this "Notice of appeal", I am requesting the date of
    filing, the court reporter's itame, the court appointed attorney's name
    that represented the defendant, the district attorney's name, and the
    judge that presided over the trial in this cause number, when you return
    the filing date. I am requesting the following information to further
    my appeal. The following instrnment's are enclosed:


    1. Notice of appeal
    2. Notice of appeal and pauper oath, and appointment of attorney on appeel
    3,Designation of record on appeal




                                               RBSPBCTFULLY SUBMITTED




                                              *tW
                                               ROY JOB t6268JI0   Appearing Pro-s*

    C.C FILED
                               v?:}M^mwv^m&vrwa!&w>*!f3!??r»m**r^




                                CAUSB NO,             W92-638o5l



8TATB OF TEXAS                                        *              IN THE CRIMINAL


VS                                                    *              DISTRICT COURT NO 8


ROY JON                                               *              DALLAS COttSTY TBXAS


                  DEFENDANT'S NOTICE OF APPEAL AND AAUP.BR OATH
                        APPOINTMENT OF ATTTORNBY ON APPBAL



to the honorable judge of said court;


     tomes now Defendant in the above cause and states: I am the defendant
in the above cause Iwas convicted in this cause and now give notice of appeal to the
Texas Court of Appeals for the Fifth turrese Judicial District of Texas at Dallas and the
lam penniless destitute and Indigent person too poor to employ counsel to represent me
on the appeel and too poor to pay for or give security for the Statement of Facts and
a true copy thereof herein
NHBRBFORB I pray that the Court will appoint an attorney to represent me in this appeal
end that the court will order the Court reporter of this court to prepare and deliver
to me or my appointed Counsel the original and a tore copy of the Statement of Facts in
this case together with all exhibits attached thereto if practical




                                                                    Defendants    \j
     •ra. n* th« undersigned authority personally appeared the above Defendnat known
to me to be the person whose signature appears above and after being duly sworn on oath
etates that he is the dafendnat in the above cause and that the matters and things set
forth in foregoing are true and correct in all things




The Defendant having requested the Court to arroint Counsel
Zt is Ordered the Honorable *tnM*m««*«**H*«**M*M*m*M*****MMH**mM*«HMMM
Address |»»»»»»»«»«»*^»^»«»«»e»**»^»*^*»*»»*«*»*****e*«e*<H>**»*******»»»**^*********
a regular licensed and practicing attorney of Texas be and he is hereby appointed to
represent Defendant in rroseeuting his arreal herein and it is further Ordered that the
ssss mF&x*KJfrnt& of*8nts%»ti1wgfcBJ«eii^"—•* •w*1" to
M. •'0$^

                                           Cause No. W92-63805-L

 THE STATE OF TEXAS                                § IN THE criminal
 V.                               '                R
                                                   S    DISTRICT COURT NO.            5

 IROY JON                                          §    J3AL-LAS COUNTY, TEXAS

                                DESIGNATION OF RECORD ON APPEAL

 TO THE HONORABLE JUDGE OF SAID COURT:

         NOW COMES the Defendant in the above styled and numbered cause, and submits this
 Designation ofRecord on Appeal, and requests that the following items be contained in the record of
 this appeal:

         1.      Acomplete Reporter's Record ofthe trial ofthis case, including any testimony at any
                 stage of the trial, any bench conferences, any arguments on motions, the voir dire
                 examinations of the jury, the final arguments ofcounsel, any pre-trial orpost-trial
                 hearings, orany other matters connected with this case where the court reporter was
                present and transcribing the proceeding, including exhibits and materials subject to
                judicial notice from all proceedings. According Jo the dooket sheet, trial was
                 conducted on                      _                     and!

        2.      The indictment(s) or information(s) including enhancement allegations.

        3.       Any special pleas and motions of the Defendant and motions of the
                 State.


        4.      Any written waivers.

        5.      The trial court's docket sheet.


        6.      Charge of the Court on both guilt-innocence and punishment.

        7.      Any special requested charges submitted by the Defendant.

        8.      The verdict of the jury.

        9.      Any Findings of Fact iiud Conclusions of Law.                                          V-


        10.     The judgment and sentence.


Designation of Record                                                                        Page 1
   yap

        11.     Motions for New Trial.

        12.     Notice of Appeal.

        13.     Any notes from the jury and the Court's response thereto.

        14.     All exhibits introduced at trial.

        15.     Any subpoenas or requests for subpoenas.

        16.     Any notes written by the Judge in the trial court's file.

        17.     Any letters written by the Defendant to the Court.

        18.     The Defendant's application for probation, if any.

        19.     The certificationof the Defendant's right to appeal under Rule 25.2.

        20.     Texas Department of Public Safety Criminal History.




                                                                                            >-.




Designation ofRecord                                                                   8e
 vi*$&




                                                                   2014
       Thejudgment in this case was entered on December 18, AMotion for New Trial was not
filed. The record should be due on or about


       WHEREFORE, PREMISE CONSIDERED, the Defendant/Appellant respectfully requests
that these matters be contained within the record ofthis appeal.

                                                     Respectfully submitted,



                                                     ROY JONA#626840 /pro-se




                                                     Attorney for Defendant on Appeal Only
                                  rpirnmr ATF. OF SERVICE

        AcopyHJ of this Designation of Record has been mailed_pnto orthe,before,
           copy
                                                                         1 jlary janyary
                                                                                  Fitzsimmons,
                                                                                         09,2015.
 ^District Clerk,



                                                          o>-

                                                      ROY JO$
                                                      O..B.   E.
                                                      1697 FM 980
                                                      Huntsville, Texas 77340




   c.c.    filed




                                                                                             Page 3
  Designation of Record
December 13, 2015


Lisa Matz
Clehk of the court
Fifth Court of appeals
George L. Allen, Sr. Court Bldg.
600 Commerce Street, Ste. 200
Dallas, Texas 75202-4658




RE:   APPELLANT FILE HIS APPEAL BRIEF




dear Ms. Matz,




        Enclose please find the following instrument's to be filed in your office, that
is in reference to cause no. F$@-688<J>S-L. I am requesting that you serve me a return
receipt for these document's# and a filing date, "PLEASE".



•1.   APPELLANT'S   APPEAL   Brief



 2.   COPY OF THE APPELLANT'S   NOTICE OF APPEAL




                                                      RESPECTFULLY SUBMITTED




                                                      s*
                                                       ROY JON #625840   pro/se
                         H .^>.jiirjnn.IKW'!»••**•*•<I*'!' y-W*»W—




                     ORAL      ARGUMENTS REQUESTED

                     APPEAL NO. ft5-lS-00035-(?£
                                                                                       Court of Appeal
                                                                                        JAH 1e 2015
                      IN THE COURT OF APPEALS
                                                                                         UsaMatz
                                             FOR            THE                       Clerk, 5th District
                   FIFTH SUPREME JUDICIAL DISTRICT

                                                                                           FZ'LE^ IN
                                                                                           Court of Appeals

                                             ROY JON
                                                                                             JAN 1 0 2015
                                                                              Appellant, L;sa Matz
                                                                                       Clerk, 5th District

                                                     VS.




                         THE STATE OF TEXAS
                                                                              Appellee.




              On Appeal from the_                                    District Court

                        of Dallas County, Texas
            Honorable Carter Thompson, Judge Presiding




                              BRIEF OF APPELLANT




                                                                           ROY JON
                                                                           TDCJ-ID NO.#626840
                                                                           O.B. Ellis Unit
                                                                           169.7 FM 980
                                                                           Huntsville, Texas 77340
APPEARING PRO-SE
                       IDENTTITY   OF   PARTIES   AND   COUNSEL




     In order that the members of this Court mat determine the parties,
Appellant certifies that the following is a complete list of parties,
attorneys, and other persons with an interest in the outcome of this appeal
THE appellant do not have any information or documentation concerning this
appeal, the trial court is denying the appellant access to the records.



ROY JON #626840
Defendant-Appellant




THE STATE   OF TEXAS

CRIMINAL DIVISION

FRANK CROWLEY COURTS BUILDIN.'!
DALLAS, TEXAS 75207-4313




Hon. Carter Thompson, Judge Presiding
Criminal District Court    No.5
Dallas County, Texas 75207-4313
                                                BflHB(jMl^lWH.yi-;i-




                                  TABLE OF CONTENTS




IDENTITY OF PARTIES AND COUNSEL                                         i



TABLE OF CONTENTS                                                      ii



INDEX OF AUTHORITIES                                                   iii



STATEMENT OF THE CASE                                                  1



POINTS PRESENTED                                                        2



STATEMENT OF FACTS                                                      3



SUMMARY OF THE ARGUMENT                                                 4



ARGUMENT



PRAYER



CERTIFICATE OF SERVICE




                                         11
                           *-•rt^>rr-i»^^'.-^^0*:rr^?^^»»|i-')g,4>'.MSWJJ»»r*WJ'.*»•!'. >w.mi« W'PfUJI'HP'q W'W HP" *'.?! '




                                                    index of authorities




                                                                                                                              pdHe
federal cases



DOuJIlAS VS. CALIFONIA, 872 U.S. 353,9 L.Ed2d. 811, 83 S.Ct. 814 (1963)                                                         6

IkiFFIN VS. ILLINOIS, t%! U.S. 12, 100 L.Ed. 891, 76 S.Ct. 585 (1956)                                                            6

LANE VS. BROWN, T72 U.S. 477, 484, 83 S.Ct. 768,772, 9 L.Ed.2d. 382 (1963)                                                       7

LONH VS. DISTRICT COURT, 383 U.S. 192, 85 S.Ct 362, ^7 L.Ed.2d. 290 (1966)                                                           7

UNITED STATES VS. MacCOOLOM, 426 U.S. 317,325,96 S.CT. 2086,2001,48 L.Ed. 666                                                         7
(1976).
                                                                                                                                      7
RONNER VS. HENDERSON, 517 F.@D. 135 (5th cir. 1975) ,




                                                                                                                                     paHe
 TEXAS CASES




 TEXAS CODE OF CRIMINAL PROCEDURE                           RULE 26.04

 TEXAS CONSTITUTION    ARTICLE V.                        §§5 and 6




                                                                                       ill
                                   STATEMENT   OF   THE   CASE




         Appellant, Roy Jon, was indicted by the jQrand jury of Dallas County, Texas on or

about April 05,1992, for delivery of a controlled substance in Dallas county, Cause number
F92-63805. Appellant plead not guilty to the charge and the trial court found him guilty
of the offense as charged in the indictment on August 19,1992. The trial court assessed
punishment at twenty-five years imprison, and no appeal was perfected from the judgment.


      November 28,2000, appellant file a State Habeas Application pursuant to article 11.07
iixfl«xiix&2xxixxMxxaHfiix of the Texas Code of Criminal Procedure (TCCP), RAISIN,! THE
iJROUNDS OB ineffective assistance of trial counsel and the right to a direct appeal.
     On April 1,2001, the court of criminal appeals denied the application without awritten
order.



     On March 19,2002, Appellant filed his federal writ of habeas corpus, alleging the
same grounds and other's, the district court dismissed the petition as barred by the
one-year statute limitation period. 28 U.S.C. §§ 2244(d). see attached exhibit's A. 1-2
      Appellan now petition the trial court to review the trial records that should had
 been provided to him, when he filed his pro-se notice of appeal (3) THREE DAYS AFTER
 the trial court found him guilty August 19,1992. The trial court erred d» not «**&"»
 appellant's pro-se notice of appeal, which denied him access to the court and to his direct
ZAppellant argues that it's been 20 years since his conviction and he need he
 transcript order to show that he did not receive effective assistance of counsel
 during his state trial, see attached exhibit's B. 1-6.
                                           POINTS




POINT ONE:



        toes the United States constitution mandates a defendant's right to appeal
his felony conviction in State Court, by and through diect appeal ?




POINT TWO:



         Does the United States Constitution mandate a defendant challenging a felony
conviction, his right to the trial court records and/or transcripts.
                                    STATEMENT OF FACTS




     The trial court misconstrued the appellant's application pursuant to articles 11.01j
11.02; ii.04; 11.05 of tiie TEXAS Code of Criminal Procedure, where these statutory pro
vision's mandates exclusive jurdiction to here the facts provided by appellant under said
articles (SUPRA). His request for a complete copy of the transcripts or to simply allow
him to review the transcripts on a temporary loan basis. The trial court is invested with
judicial authority to preside and adrainster 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 trial court records 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 filed a requested notice of appeal. Thus, it is obviously clear
that his State snd 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 amiscarriage of justice. The trial court has deprived the
appellant for (20) twenty years his constitutional right to review the transcripts.

     Appellant n«ed not prove his entitlement to review the records because he has establish
-d a orima facie on the face of the records, that he has been denied a direct appeal.
and a effective trial counsel, sea attached exhibit's A.l-2. This is all that js required
•by State and Federal law.




                                              3.
                               SUMMARY   OF   THE   ARGUMENT




     Appellant has a statutory right to access to the transcript by and
thtouyh the Texas Constitution, which is supported by the fourteenth
amendment   to   the United   States   Constitution.    Thts   trial   court   "ORDER"

would abridge the appellant's State and federal Constitution right.
                                        ARGUMENT




POINT 0«E:      Does the United States Constitution mandates a defendant's
right to appeal his felony conviction in State Court, by aid through
direct appeal .2




                                  ARGUMENT £_AUTKQRITY


          Appellant pleaded net guilty to the charges of delivery of a con
 relied substance. He contends that their was "NO" evidence provided to the court in
-rrv:1.


which to establish nis guilty verdict. Tna prosecutor withheld a naterial witness that
would have determine the appellant innocence. Appellate requested to his trial counsel
his desire to appeal the courts judgment.- and his counsel failed to comply with his
raquest. In doing so, appellant filed a pw-se notice of appeal. Appelant trial counsel
was avare that the appsllant was attempting to appeal, hy.s coavv-,ion and he maliciously
interfered with the process of his appeal by not informing the courts that appellant
wrote hire on numerous occasions requesting his assistance with hie appeal end he lied to
the court that appellant did not request to appeal his conviction.

      Ihe trial couit and the district clerk refuse to process appelant•pro-se notice
o£ appeal, and failed to appoint an attorney to preset hi* o-. -Appeal.
Appoint ^           that th. !«. Coca of Criminal »»>» -tide 26.04 ,Vernon W,
provide, that an attorney apposed CO represent adefendant in a:elony case «U
^present the defendant until the cnaro.es are disced. a» a—*nt ~a^u? ed
appeals are exhausted, or the attorney is relrevod o£ ^ ^ ££"£ ^Stf
oy other counsel. In this =*<« «"»el " ,™°,^. fflpp'-al, motion for new trial,
i»     '= «*
and motion  for *» •*"**-"
                .ppoint-nt     ™3c";r
                           of aPP-lla ecoun.. o ».t^     counsel".
                                                         ^ ^ ».    ^^a^n»nf
 pro-se notice o.. ^\3"e ** ""^Jlire to copaal ihe courts juagnant. T*e
 notice of hie constitutions- .i»* <- •'» •>--"       ;'           ^presented by counsel
  aslant successfully ,et hie burden of shc^no tnat he "            £,          ^. ^
     •     •-,-.i -tao- of --he prosecution and therefor, CCOD UUjl
  conn* aordeal   .u*. of h P                            ^n^x IN vm. Ruta Appelia
  Texas Rule appellate Procedure Ruj. <HJ,
  -te Procedure Kule 31ia)(!>.
    The Texaf. Constitution set out the appellate jurisdiction of both the. Court of
Criminal Appeal and the Court of Appeals, see Texas Constitution, article V. §5(Provid
ing for criminal appellate jurisdiction in the Court ot Criminal Appeals): Texas Constitu
tion article V. §6 (Providing for appellate jurisdiction of Courts of Appeals). Thus,
the right to appeal in Texas is Statutory, not constitutional.

    Appellant contends that it is evident that he is and was indigent at the time ox his
trial'and ha did not receive any practical assistance of counsel in protecting and pre
serving his appellate rights.. Thus, he has been denied effective assistance of counsel
on appeal ir. violation of nis due process right under the fourteenth amendment and his
due course rights under article 1 »10, of the Bill of Rights. sm4*IFFIH VS Il.LlKOSIS,
351 U.S. 12 (1956): AND DGliJLAS VS. CALIFORNIA, UQ U.S. 2!53 (1953).
                                          \*t*x**«»*-*v%j miiwnuwn,<w




                                           ARGUMENT




j?OIKT TWO:   Does the Unitec; States Constitution mandate a defendant challenging a felony
conviction, his right to the trial court records and/or transcripts



                                     ARGUMENT & AUTHORITY



     The trial court has ordered that the appellant be denied a complete copy of the
transciotts for fre«, in order to prepare his application for a post-conviction ircit of
habeas corpus. The court concluded that the appellant failed to sufficiently stated a
particularized need for the requested documents. The trial court failed to address the
appellant's request for a loan of the transcripts- dor a limited time, see cause no.
K92-&3E05--L, ORDER dated December 13,2014.

     .n-armin «. miosis, plurality the supremo court held t^t ^'-^ *™

::;:::;!.: tiffin ,*»<** ^ wm -—«"*»* -«—•
 ::ndiuents must be furnished acopy of the'transcript for appellate review of an .avers* ae
 decision in post-conviction proceedings. Long VS. District Court, 38o U.S. 1!>2. 0/
 S.Ct. 362, 17 L.Ed.2d. 290 (19S6HPSB CURIAM). Eiia principle is equally app},icaoie u>
                                .ii-.-^.n-, auaocing
 proceedings in federal courts collaterally =t-=r*ina state convictions, and we do not
                                                      state c
 understand the state to contend otherwise in the present case.

      indigents, however, cannot o.t.in transcripts «rely to ™ ^ ^ 'a ^
 ^ VS. Henderson, 517 P.2d.l35 (5th cir. 1*75) <P« «- hd t ™
 the power to order afree 'transept furnished [for an - ^ £ ^          .
 suit... is not frivolous and that the ™^Y^n ^ 2r..«.~ - -7,
  United States VS. ,,cCollOT. 426 U.S. ,1 . •* S^                      ^^^ .„ ^ ^
  (plurality opinion )( quoting 28 U.S.C. 57531 »                         ^   £oc relie£„.
  ioner can n,a*e no rationai argument « law or facts
     In the appellant's application under article, 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 innocent of the charge, and that his trial counsel was ineffective
because he did not file his requested "NOTICE OF APPEAL", there was allegations that the
State withheld a material or alibi witness to this crime and the witness could have
prove appellant's innocence. This assertion, on its face, alleges more than ineffective
ness 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 herein, appellant
respectfully prays that this court sustain appellant's points and allow him access to
the trial court transcripts.



                                          DECLARATION
 (

        I,, Roy Jon #6268400 declare under penality of perjury that the foregoing is true
 and correct to the best of my ability pursuant to 28 U.S.C. §§ 1746.
                                                         /s/_
                                                              ROY JON




                                     r-TOTTPTr&TR OF SERVICE



            T, Roy Jon, ,626840, do hereby certify that a ^ - - - —
 Brief of pliant has been served by olacing same u» the U.S. MAIL
     12TH          day of January_2015^_ Addressed to:
     Lisa Matz
 Clerk Of the court                                     RESPECTFULLY SUBMITTED
     Rifth Court of Appeals
 Jleorge L. Allen, Sr. Court Bldg.                      <^J
     600 Commerence Street, Ste. §0.0                    -t\<
     Dallas, Texas 75202-4658                           ROY JON(jUMtV     appearing pro-se
                                                        O.B. Ellis Unit
                                                        1697 FM 980
      C.C. FILED                                8       Huntsville, Texas 77340
                                                                                                                                 Genera/ Overview
                                                                                                                                 Criminal Law & Procedure > Habeas Corpus > Review > Antiterrorism * Effective Death Penalty
                                                                                                                                 Act
    ROY JON. # 626840, Petitioner, v. JANIECOCKRELL,Director, Texas Department of Criminal                                       When a petitioner files his 28 U.S.C.S. § 2254 petition after April 24,1996, the effective date of the
                                     Justice, Institutional Division, Respondent                                                 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA governs.
UNITED STATES DISTRICTCOURT FOR THE NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION
                                                2002 U.S. DisL LEXIS 12066                                                       Criminal Law & Procedure > Habeas Corpus > Procedure > Filing of Petition > Time Limitations >
                                                         3:02-CV-S5S-P                                                           General Overview
                                        July 2,2002, Filed; July 3,2002, Entered                                                 Criminal Law & Procedure > Habeas Corpus > Procedure > Filing of Petition > Time Limitations >
                                                                                                                                 Antiterrorism & Effective Death Penalty Act
                                                                                                                                 Governments > Legislation > Statutes of Limitations > General Overview
Editorial Information: Subsequent History                                                                                        Governments > Legislation > Statutes of Limitations > Time Limitations
Adopting Order of August 6, 2002. Reported at: 2002 U.S. Dist. LEXIS 14483.                                                      The Antiterrorism and Effective Death Penalty Act of 1996 establishes a one-year statute of limitations for
Disposition:                                                                                                                     state inmates seeking federal habeas corpus relief. 28 U.S.C.S. § 2244(d).
               Magistrate's recommendation to dismiss petition for a writ of habeas corpus.
                                                                                                                                 Criminal Law& Procedure > Habeas Corpus > Procedure > Filing of Petition > Time Limitations >
Counsel                   ROY JON, petitioner. Pro se. Tennessee Colony, TX USA.                                                 General Overview
Judges: WM. F. SANDERSON, JR., UNITED STATES MAGISTRATE JUDGE.                                                                   Criminal Law & Procedure > Habeas Corpus > Defenses > Statutes of Limitations
                                                                                                                                 Governments > Legislation >Statutes of Limitations > General Overview
CASE SUMMARY                                                                                                                     Governments > Legislation > Statutes of Limitations > Pleading & Proof
                                                                                                                                 In a habeas corpus action, a district court may raise the affirmative defense of the statute of limitations
PROCEDURAL POSTURE: After petitioner inmate was convicted and sentenced for delivery of a                                        sua sponte.
controlled substance, no appeal was perfected. The inmate filed a state habeas corpus application
alleging he was denied effective assistance of trial counsel and the right to a direct appeal. The application                   Criminal Law & Procedure > Habeas Corpus > Procedure > Filing of Petition > Time Limitations >
was denied. The inmate filed the instant petition under 28 U.S.C.S. § 2254 raising the same claims.A                             General Overview
magistrate judge recommended that an inmate's habeas corpus petition be dismissed as time-barred.
Since the inmate's state habeas corpus petition was not timely, his federal petition was also time-barred.                       See 28 U.S.C.S. § 2244(d).
                                                                                                                                 Criminal Law & Procedure > Habeas Corpus > Procedure > Filing of Petition > Time Limitations >
OVERVIEW: In the inmate's case, all the grounds for relief, except for counsel's failure to file a notice of                     General Overview
appeal, occurred on or before the conclusion of his trial on August 19,1992, more than nine years before
March 10, 2002, the earliest possible date on which his federal petition could be considered filed under the                     In the context of determining the timeliness of a habeas corpus petition, an inmate's conviction becomes
mailbox rule. On the issue of the inmate's counsel's failure to perfect an appeal, his counsel had stated in                     final 30 days after lhe judgment of conviction. Tex. R. App. P. 26.2(a)(1) (Sept. 1,1997) (formerly Tex. R.
a letter on June 17,1994, that the inmate had asked him not to file an appeal. Regardless of the accuracy                        App. P. 41(b)(1)).
of trial counsel's statements, the fact remained that no later than on or about June 17,1994, the inmate
had personal knowledge that no direct appeal from his conviction had been perfected. The inmate could                            Criminal Law & Procedure > Counsel > Effective Assistance > Appeals
have raised all his grounds for relief in a Tex. Code Crim. Proc. art. 11.07 application at anytime                              Criminal Law & Procedure > Appeals > Reviewability > Notice of Appeal
subsequent to his conviction becoming final on September 18,1992. through April24,1997, without being
                                                                                                                                 An attorney's failure to perfect an appeal, when requested to do so by a person convicted of a criminal
at risk of having his 28 U.S.C.S. § 2254 petition being dismissed as time-barred. The inmate was not
                                                                                                                                 offense, constitutes ineffective assistance of counsel.
entitled to an equitable tolling of statute of limitations period.
                                                                                                                                 Criminal Law & Procedure > Habeas Corpus > Procedure > Filing of Petition > Time Limitations >
OUTCOME: A magistrate judge recommended that the inmate's petition for a writ of habeas corpus be                                General Overview
dismissed.                                                                                                                       Governments > Legislation > Statutes of Limitations > Tolling
                                                                                                                                 Criminal Law 4 Procedure > Habeas Corpus > Procedure > General Overview
                                                                                                                                 Criminal Law 4 Procedure > Habeas Corpus > Procedure > Filing of Petition > Time Limitations >
LexisNexis Headnotes                                                                                                             Tolling
                                                                                                                                 Governments > Legislation > Statutes of Limitations > General Overview
Criminal Law & Procedure > Habeas Corpus > Procedure > Filing of Petition > Time Limitations >
lyecases                                                          l                                                              lyecases                                                            2
C 2013 Matthew Bender& Company. Inc.. a memberof the LexisNexis Group.All rights reserved.Use of this productis subject to the   © 2013 Matthew Bender & Company. Inc..a memberof the LexisNexisGroup. AHrights reserved Use of this product is subject to the
restrictions and termsand conditionsof the Matthew BenderMaster Agreement                                                        restrictions and terms and conditions of the Matthew Bender Master Agreement
     considered filed under the "mailbox rule." See Application to proceed in forma pauperis signed on                                      filed on the last day of the last extension.
     March 10,2002, and submitted contemporaneously with the federal petition and brief in support. See
     also Sootville v. Cain. 149 F.3d 374, 377 (5th Cir. 1998) (holding that a federal petition is deemed filed                             Nonetheless, Petitioner is not entitled to equitable tolling. After receiving notice of the denial of his art.
     for determining application of the AEDPA when the prisoner tenders it to prison officials for mailing).                                11.07 application, Petitioner waited more than eleven months before he placed his federal petition
                                                                                                                                            within the prison mail system. This additional delay — of Petitioner's own making - does not constitute
     Jon learned that no direct appeal had been perfected for his conviction no later than March 19,1993,                                   a rare and extraordinary circumstance, which is required for equitable tolling. See Melancon. 259 F.3d
     when he received a letter from the DallasDistrict Clerk advising him to contact his trial attorney. 2                                  at 408 ("Equitable tolling should only be applied if the applicant diligently pursues § 2254 relief.");
     Although arguably the clerk's letter may not have explicitlyinformed Petitioner that no appeal was ever                                Fisher. 174 F.3d at 715 f equity is not intended for those who sleep on their rights"). Therefore, the
     perfected, any doubt concerning this matter was removed when he received a letter from John S.                                         magistrate judge concludes that Petitioner has not presented extraordinary circumstances justifying
     Fisher, inmate staff counsel, on June 17,1994, which included a copy of a letter from Jon's trial                                      equitable tolling.
     attorney, stating that Jon had not asked him to file a notice of appeal. In the letter trial counsel could
                                                                                                                                            RECOMMENDATION:
     not explainwhy Jon's pro se notice of appeal had not been filedof record. Regardless of the accuracy
     of trial counsel's statements in the letter, the fact remains that no later than on or about June 17,                                  For the foregoing reasons the magistrate judge recommends that the District Court dismiss the
     1994, Petitioner had personal knowledge that no direct appeal from his conviction had been perfected.                                  petition for a writ of habeas corpus as barred by the one-year limitation period. See 28 U.S.C. §
     See Exhs. 2,3, and 4, attached to Petitioner's Brief filed on March 19, 2002.                                                          2244(d).
      Jon correctly notes that an attorney's failure to perfect an appeal, when requested to do so by a                                     The Clerk will transmit a copy of this recommendation to Petitioner.
     person convicted of a criminal offense, constitutes ineffective assistance of counsel. However, the
                                                                                                                                            WM. F. SANDERSON, JR.
     District Court cannot reach the merits of such a claim when raised in a time-barred § 2254 petition.
     Jon could have raised all his grounds for relief in an art. 11.07 application at anytime subsequent to                                 UNITED STATES MAGISTRATE JUDGE
     his conviction becoming final on September 18,1992, through April 24,1997, without being at risk of
                                                                                                                                            NOTICE
     having his § 2254 petition being dismissed as time-barred. 3 By his own admission Jon did not seek
     habeas relief in the convicting court until November 28,2000, (Petition at P 11, p. 3), some three and                                 In the event that you wish to object to this recommendation, you are hereby notified that you must file
     one-half years after the limitation period had expired. Scott, 227 F.3d at 263 (state habeas application                               your written objections within ten days after being served with a copy of this recommendation.
     does not toll limitation period when it is filed after the limitation period has expired). Therefore, Jon's                            Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's
     federal petition is time barred. 4                                                                                                     failure to file written objections to these proposed findings of fact and conclusions of law within such
     Petitioner correctly notes that the limitation period may be equitably tolled. However, such applies only                              ten day period may bar a de novo determination by the district, judge of any finding of fact or
                                                                                                                                            conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on
     in rare and exceptional circumstances, and only if the petitioner diligently pursues habeas relief. See
     Melancon v. Kaylo. 259 F.3d 401, 408 (5th Cir. 2001); Phillips v. Donnelly. 216 F.3d 508, 511 (5th Cir.
                                                                                                                                            appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district
                                                                                                                                            court.
     2000), reh'q granted in part. 223 F.3d 797 (5th Cir. 2000); Felder v. Johnson, 204 F.3d 168,171-72
     (5th Cir. 2000), cert, denied, 531 U.S. 1035,148 L. Ed. 2d 532.121 S. Ct. 622 (2000); Fishery.                                                                                                Footnotes
     Johnson, 174 F.3d 710, 713 (5th Cir. 1999), cert, denied. 531 U.S. 1164,148 L. Ed. 2d 991,121 S.
     Ct. 1124(2001).
     Petitioner's reliance on Davis v. Johnson, 158 F.3d 806,811 (5th Cir. 1998), cert, denied. 526 U.S.                                    1
     1074,143 L. Ed. 2d 558,119 S. Ct. 1474 (1999), is without merit. The facts in Davis which gave raise
     to the Fifth Circuit's decision to apply equitable tolling are clearly distinguishable from the facts in this                          On March 26, 2002, the magistrate judge informed Petitioner of the one-year statute of limitations and
     case. Specifically, the state writ in Davis was denied on December 1,1993. Ex parte Davis. 866                                         granted him thirty days to show cause why his petition should not be dismissed as barred by the
     S.W.2d 234 (Tex. Crim. App. 1993). On February 13,1997, Davis requested the federal court to                                           limitation period. On May 30, 2002, Petitioner filed a response to the show cause order.
                                                                                                                                            2
     appoint counsel because his state habeas counsel was incapacitated. On or about February 27,1997,
     he filed a motion to extend time within which to file his federal petition. On March 4,1997, the federal                               See Petitioner's response to show cause order, filed on May 30.2002, at 12. See also Exh. 1,
     court appointed counsel and granted extension until May 26,1997, to file the federal petition. The                                     attached to Petitioner's Brief filed on March 19.2002.
     federal court granted two additional extensions to file the petition and on May 8,1998, Petitioner filed                               3
     his federal petition.
                                                                                                                                            The limitation period is tolled during the pendency of state proceeding collaterally attacking a state
     Davis, which was a death penalty case, presented several extenuating circumstances. The request for                                    prisoner's conviction. See 28 U.S.C. § 2244(d)(2); Sonnier v. Johnson, 161 F.3d 941 (5th Cir. 1998)
     appointment of counsel - because state habeas counsel was incapacitated - was filed prior to                                           (per curiam); Fields v. Johnson. 159 F.3d 914,916 (5th Cir. 1998). Although practically speaking a
     expiration of the one-year grace period. The federal court appointed federal habeas counsel before                                     prisoner would be ill-advised to wait until the last day of the one-year grace period to seek
     the expiration of the one-year grace period and granted an extension of time to file beyond the                                        state-collateral relief, the fact remains that Jon had more than thirty four months from the date on
     one-year grace period, followed by two additional extensions. Lastly in Davis, the federal petition was                                which he clearly knew that his alleged request to appeal his conviction had not been complied within
lyecases                                                             s                                                                 lyecases                                                           6
•C 2013 Matthew Bender & Company. Inc.. a member of the LexisNexis Group. All rights reserved. Use of this product is subject to the   ©2013 Matthew Bender & Company, bx.. a member of the LexisNexis Group. All rights reserved Use of this product is subject to the
restrictionsand terms and conditions of the Matthew Bender Master Agreement                                                            restrictions and terms and conditions of the Matthew Bender Master Agreement
                                                                                                                                         IT IS FURTHER ORDERED that the Clerk shall transmit a true copy of this judgment and the order
                                                                                                                                         adopting the Findings, Conclusions and Recommendation of the United States Magistrate Judge, to
                                                                                                                                         Petitioner.
     ROY JON v. JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,                                                          SIGNED this 6th day of August, 2002.
                                                  INSTITUTIONAL DIVISION
                                                                                                                                         UNITED STATES DISTRICT JUDGE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION
                                                 2002 U.S. Dist. LEXIS 14483                                                             Jorge A. Solis
                                                           3-02-CV-555-P
                                               August 6, 2002, Decided
                                    August 6, 2002, Filed; August 7, 2002, Entered
Editorial Information: Prior History
Jon v. Cockrell, 2002 U.S. Dist. LEXIS 12066 (N.D. Tex. July 2, 2002)
Disposition:
           Findings, conclusions and recommendation of magistrate judge adopted.
Counsel                                    ROY JON, petitioner. Pro se, TDCJ, Michael Unit, Tennessee Colony,
               TX USA.
Judges: Jorge A. Solis, UNITED STATES DISTRICT JUDGE.
                                                               Opinion
Opinion by:                    Jorge A. Solis
                                                               Opinion
     ORDER
     After making an independent review of the pleadings, files and records in this case, and the Findings,
     Conclusions and Recommendation of the United States Magistrate Judge, I am of the opinion that the
     findings and conclusions of the Magistrate Judge are correct and they are adopted as the findings and
     conclusions of the Court.
     IT IS. THEREFORE, ORDERED that the findings, conclusions and recommendation of the United
     States Magistrate Judge are adopted.
     SIGNED this 6th day of August, 2002.
     UNITED STATES DISTRICT JUDGE
     Jorge A. Solis
     JUDGMENT
     This action came on for consideration by the Court, and the issues having been duly considered and a
     decision duly rendered,
     It is ORDERED, ADJUDGED AND DECREED that the petition be, and it is hereby, dismissed as
     barred by the one-year limitation period.
lyecases                                                            l                                                               lyecases                                                            2
C2013 Matthew Bender & Company. Inc., a member of the LexisNexis Group. All rights reserved Use of this product is subject to the   t> 2013 MatthewBender& Company.Inc..a memberof the LextsNexisGroup.All rightsreserved. Use of this productis subjectto the
restrictionsand terms and conditions of the Matthew Bender Master Agreement                                                         restrictions and terms and conditions of the Matthew Bender Master Agreement
DISMISS; and Opinion Filed January 23, 2015.




                                                                In The

                                           Court of Appeals
                                 ifftftlj district of QJexaa 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 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).




                                                   -2-
       We dismiss the appeal for want ofjurisdiction.




                                                 /Elizabeth Lang-Miers/
                                                  ELIZABETH LANG-MIERS
                                                 JUSTICE



Do Not Publish
Tex. R. App. P. 47


150075F.U05
                                  GLaurt of Appeals
                        ifliftl? district of QJexas at ©alias
                                      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-
*oy 3on   ^626840
O.B. Ellis Unit
•S97 FM $80         77340
Mintsvile, Texas
                            Lisa   Matz
                            Clerk of the court
                            Fifth Court of Appeals
                            George L. Allen, Sr. Court Bldg
                            600 Commerce Street, ste. 200
                            Dallas, Texas 75202-4658
          S
  t>
