Ervin Kay v. The State of Texas--Appeal from 262nd District Court of Harris County

Annotate this Case

Download PDF

Dismissed and Memorandum Opinion filed January 28, 2010. In The Fourteenth Court of Appeals ____________ NO. 14-10-00010-CR ____________ ERVIN KAY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 262nd District Court Harris County, Texas Trial Court Cause No. 1028331 MEMORANDUM OPINION Appellant entered a guilty plea to aggravated robbery. In accordance with the terms of a plea-bargain agreement with the State, the trial court sentenced appellant on September 29, 2005, to confinement for thirty-five years in the Institutional Division of the Texas Department of Criminal Justice. On December 22, 2009, appellant filed a request for an out-of-time appeal in the trial court. Even though the trial court did not grant the request, an appeal was assigned to this court. We dismiss the appeal. First, the trial court entered a certification of the defendant s right to appeal in which the court certified that this is a plea bargain case, and the defendant has no right of appeal. See Tex. R. App. P. 25.2(a)(2). The trial court s certification is included in the record on appeal. See Tex. R. App. P. 25.2(d). The record supports the trial court s certification. See Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005). Moreover, this court lacks jurisdiction over this attempted appeal from a 2005 conviction. Neither the trial court nor this court may grant appellant an out-of-time appeal. The exclusive post-conviction remedy after final felony convictions in Texas courts is through a writ of habeas corpus returnable to the Texas Court of Criminal Appeals, pursuant to article 11.07 of the Code of Criminal Procedure. Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991); Tex.Code Crim. Proc. Ann. art. 11.07, § 3(a) (Vernon Supp. 2009). Accordingly, we dismiss the appeal. PER CURIAM Panel consists of Chief Justice Hedges and Justices Anderson and Christopher. Do Not Publish Tex. R. App. P. 47.2(b). 2

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.