TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00575-CR
Ex parte Kelly James McCarty
FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
NO. 30842B, HONORABLE J. ALLAN GARRETT, JUDGE PRESIDING
DISSENTING OPINION
Article 11.072 of the Code of Criminal Procedure, the statute pursuant to which
McCarty filed his application for writ of habeas corpus, explicitly states that the application “must”
challenge the legal validity of either the conviction for which community supervision was imposed
or the conditions of community supervision.1 McCarty’s application challenges neither—instead,
he seeks only an out-of-time appeal. The Court of Criminal Appeals, in the context of an application
for writ of habeas corpus filed pursuant to article 11.07, has characterized a request for an
out-of-time appeal as seeking “only an opportunity to appeal.”2 Such a request is not, according to
the high court, “a challenge to the conviction” and does not “concern the validity of the prosecution
or the judgment of guilt.”3 Following the same logic, this Court has previously held (albeit in an
unpublished opinion) that a complaint concerning the denial of a right to appeal, including a request
1
Tex. Code Crim. Proc. art. 11.072, § 2(b).
2
Ex parte McPherson, 32 S.W.3d 860, 861 (Tex. Crim. App. 2000).
3
Id.
for an out-of-time appeal, is “not a valid claim under article 11.072.”4 Unless and until the Court
of Criminal Appeals instructs us otherwise, I would rely on the same logic today.
Whether McCarty has, or ought to have, some remedy in his circumstances may
be another matter, but he has invoked only article 11.072, and courts are bound to construe
and apply the statute as the Legislature has given it to us. I cannot conclude that the trial court
abused its discretion in denying McCarty’s request for an out-of-time appeal on the ground that
article 11.072, as written and as applied to this record, does not authorize such relief. Accordingly,
I respectfully dissent.
__________________________________________
Bob Pemberton, Justice
Before Justices Puryear, Pemberton, and Bourland
Filed: April 29, 2015
Do Not Publish
4
Ex parte Sheikh, No. 03-10-00370-CR, 2012 Tex. App. LEXIS 7098, at *41-43
(Tex. App.—Austin Aug. 17, 2012, pet. ref’d) (mem. op., not designated for publication).
2