Jon, Roy, PD-0225-15

Roy Jon was convicted in 1992 of delivery of a controlled substance and sentenced to 25 years; no direct appeal was taken then.
Jon alleges his trial counsel failed to file a requested notice of appeal, depriving him of a direct appeal and constituting ineffective assistance of counsel.
In October 2014 Jon filed a pro se application in the trial court seeking access to the trial transcript (or a temporary loan) to prepare a post-conviction habeas application alleging actual innocence and counsel ineffectiveness.
The trial court denied the request for transcripts by written order dated December 18, 2014; Jon appealed that order to the Fifth District Court of Appeals (05-15-00075-CR).
The court of appeals dismissed the appeal for want of jurisdiction, holding an order denying post-conviction access to the trial record is not an appealable order and the court lacked authority to grant an out-of-time appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Right to a direct appeal after conviction	Jon: counsel was ineffective for failing to file a notice of appeal; he was denied a federally and state-protected right to appeal	State: appellate jurisdiction is statutory; courts of appeals lack authority to grant out-of-time appeals on collateral review	Court: No jurisdiction to review claim now; right to appeal is statutory and appellate review is only after conviction or an appealable order; dismissal for want of jurisdiction
Right to obtain/review trial transcripts for post-conviction proceedings	Jon: as an indigent, he must be provided transcripts or a loan to prepare a nonfrivolous habeas claim (actual innocence, withheld witness)	State/Trial Court: petitioner failed to particularize need; trial court denied free copy and did not grant loan	Court of Appeals: order denying access to the trial record is not appealable; the appeals court dismissed for want of jurisdiction (did not reach merits)

Griffin v. Illinois, 351 U.S. 12 (U.S. 1956) (indigent criminal defendants must be afforded adequate appellate review)
Douglas v. California, 372 U.S. 353 (U.S. 1963) (right to counsel on first appeal as of right for indigents)
Lane v. Brown, 372 U.S. 477 (U.S. 1963) (extension of Griffin principles)
Long v. District Court, 385 U.S. 192 (U.S. 1966) (indigent defendants entitled to transcript for collateral review in some circumstances)
United States v. MacCollom, 426 U.S. 317 (U.S. 1976) (courts may provide free transcripts when record is needed to decide nonfrivolous claims)
Slaton v. State, 981 S.W.2d 208 (Tex. Crim. App. 1998) (procedural rules governing out‑of‑time appeals)
Wright v. State, 969 S.W.2d 588 (Tex. App.—Dallas 1998) (order denying access to trial record for post‑conviction review is not appealable)