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
MEMORANDUM OPINION
Kelly James McCarty was convicted of two counts of indecency with a child by
contact. See Tex. Penal Code § 21.11(a). After the jury found McCarty guilty, the district court
sentenced him to five years’ imprisonment for the first count and to ten years’ imprisonment for the
second count, but the court placed him on community supervision for the second count. Although
McCarty sought to appeal those convictions, this Court dismissed his appeal because it was not
timely filed. See McCarty v. State, No. 03-09-00378-CR, 2009 Tex. App. LEXIS 5722, at *1 (Tex.
App.—Austin July 22, 2009, no pet.) (mem. op., not designated for publication); see Tex. R. App.
P. 26.2(a) (setting out deadline for perfecting appeal). After this Court’s ruling, McCarty filed a writ
of habeas corpus under article 11.07 of the Code of Criminal Procedure urging that he was denied
his right to appeal, and the district court determined that McCarty’s attorney failed to file a timely
notice of appeal. See Ex parte McCarty, No. AP-76,607, 2011 Tex. Crim. App. Unpub. LEXIS 610,
at *1 (Tex. Crim. App. Aug. 24, 2011); see Tex. Code Crim. Proc. art. 11.07 (providing procedure
for applicant seeking relief from felony judgment imposing penalty other than death penalty).
When the case was transferred to the court of criminal appeals, the court concluded that because
“[t]he trial court determined that appellate counsel failed to timely file a notice of appeal,” he “is
entitled to the opportunity to file an out-of-time appeal of the judgment of conviction in Count I,”
but the court dismissed his out-of-time claim regarding the second count. McCarty, 2011 Tex.
Crim. App. Unpub. LEXIS 610, at *1-2.
Following the ruling by the court of criminal appeals, McCarty filed an application
for writ of habeas corpus concerning the second count, but this writ application was filed under
article 11.072 of the Code of Criminal Procedure, which establishes habeas procedures for convictions
imposing community supervision. See Tex. Code Crim. Proc. art. 11.072. In his application, McCarty
reasserted his claim that although he wanted his attorney to appeal his conviction under the second
count, his attorney miscalculated the deadline for filing an appeal and filed the appeal “three days
too late.” Accordingly, he asked the district court to convene a hearing and determine whether he
was entitled to pursue an out-of-time appeal.
In response, the State urged that McCarty’s application should be denied because his
claim does not fall under article 11.072. Article 11.072 “establishes the procedures for an application
for a writ of habeas corpus in a felony or misdemeanor case in which the applicant seeks relief from
an order or a judgment of conviction ordering community supervision.” Id. § 1. To be entitled to
relief, “the applicant must be, or have been, on community supervision, and the application must
challenge the legal validity of: (1) the conviction for which or order in which community supervision
was imposed; or (2) the conditions of community supervision.” Id. § 2(b). In light of this language,
the State asserted in its response that McCarty’s claim regarding his attorney’s failure to timely file
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an appeal does not “specify any facts or authority indicating how the order under which community
supervision was imposed is not legal nor does [McCarty] specify any facts or authority indicati[ng]
how any of the conditions of community supervision are not legal.” After considering the State’s
response, the district court agreed with the State and issued an order denying McCarty’s request for
an out-of-time appeal.
We will reverse the district court’s ruling and remand this case for further proceedings.
STANDARD OF REVIEW
“In general, a trial court’s ruling in a habeas proceeding should not be overturned
unless there is a clear abuse of discretion by the court.” Ex parte Mann, 34 S.W.3d 716, 718 (Tex.
App.—Fort Worth 2000, no pet.); see also State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App.
2005) (stating that trial court abuses its discretion if its ruling is arbitrary or unreasonable); Lopez v.
State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002) (providing that trial court abuses its discretion
if its ruling lies outside zone of reasonable disagreement). “In an article 11.072 habeas case,” the
trial court “is the sole finder of fact.” Ex parte Garcia, 353 S.W.3d 785, 787-88 (Tex. Crim. App.
2011). Accordingly, reviewing courts “afford great deference to the habeas court’s findings of fact
and conclusions of law that are supported by the record.” Ex parte Mello, 355 S.W.3d 827, 832 (Tex.
App.—Fort Worth 2011, pet. ref’d). However, if the resolution of the ultimate questions only turns
on the application of legal standards, appellate courts review those determinations de novo. Id.
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DISCUSSION
On appeal, McCarty contends that the district court erred by denying his application
because the claim that he made and the relief that he sought fall under article 11.072 and because the
evidence showed that his appointed attorney failed to timely file a notice of appeal, which he insists
violated his due process rights under the Fourteenth Amendment. See U.S. Const. amend. XIV;
see also Strickland v. Washington, 466 U.S. 668, 688, 694 (1984) (explaining that to succeed on
ineffectiveness claim, defendant must show that his attorney’s “representation fell below an objective
standard of reasonableness . . . under prevailing professional norms” and that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different”). Moreover, when explaining how his claim falls within article 11.072, McCarty
contends that by seeking an out-of-time appeal, he is challenging the validity of the conviction
that imposed community supervision.
When supporting the district court’s ruling, the State repeats its assertion that article
11.072 does not specifically authorize the relief sought by McCarty. In particular, the State asserts
that article 11.072 may only be used to challenge a condition of community supervision or to
challenge the legality of the conviction imposing community supervision, see Tex. Code Crim. Proc.
art. 11.072(b), and insists that “the relief sought by [McCarty] is not a direct challenge to the legal
validity to the conviction or order in which his community supervision was imposed but a complaint
that he was not afforded his right of direct appeal due to the failure of his first appellate counsel” to
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timely file his notice of appeal.1 Accordingly, the State insists that the district court properly denied
McCarty’s application.
However, we cannot agree with the State’s assertion that McCarty is not challenging
the legality of his conviction. First, the State’s contention is inconsistent with the Supreme Court’s
description of the effect of an appeal as described in Evitts v. Lucey, 469 U.S. 387 (1985). In Evitts,
the defendant’s lawyer failed to comply with all of the requirements for perfecting an appeal. Id.
at 389. Eventually, the defendant sought habeas relief from his conviction. Id. at 390-91. In affirming
1
In its brief, the State also asserts that McCarty employed the wrong procedural mechanism
by pursuing habeas relief under article 11.072 and that McCarty should have relied on article 11.08
instead. See Tex. Code Crim. Proc. art. 11.08 (allowing writs of habeas corpus for individuals who
have been charged with felonies). Given our resolution of this appeal, we need not decide whether
article 11.08 would also have been an appropriate procedural vehicle for McCarty to present his
claim.
However, we do note that when this Court was faced with a situation in which the State
alleged that an applicant (Balderrama) improperly used article 11.08 and should have instead relied
on article 11.072, we noted that Balderrama complied with the relevant procedural requirements for
seeking relief under article 11.072, that the State responded to Balderrama’s claims, and that the
habeas trial court denied relief. See Ex parte Balderrama, 214 S.W.3d 530, 532 (Tex. App.—Austin
2006, pet. ref’d). Moreover, we explained that under both statutes, Balderrama was entitled to appeal
the denial of the relief requested and that if we dismissed the appeal on the ground that the applicant
“incorrectly relied on article 11.08, she would be entitled to reapply under article 11.072.” Id.
Accordingly, we determined as follows:
It is reasonable to anticipate that the State would then file the same answer, the
district court would again deny relief on the basis of the same findings and
conclusions, the case would return to this Court on appeal, and the parties would
make the same arguments on the merits of Balderrama’s claim. In other words,
whether Balderrama properly invoked article 11.08 or should have relied instead on
article 11.072 is of little consequence—jurisdictional, procedural, or otherwise—under
the circumstances of this case.
Id.
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the habeas relief, the Supreme Court determined that due process requires that an appellant be
provided with effective assistance of counsel during an appeal and explained that “[i]n bringing an
appeal as of right from his conviction, a criminal defendant is attempting to demonstrate that the
conviction, with its consequent drastic loss of liberty, is unlawful.” Id. at 396.
In addition, the State’s contention is inconsistent with various appellate cases,
including one from this Court, which have suggested that applicants may seek out-of-time
appeals under article 11.072 when an appeal was not timely filed. See, e.g., State v. Burnett,
No. 05-13-00247-CR, 2013 Tex. App. LEXIS 7422, at *3-6 (Tex. App.—Dallas June 18, 2013,
no pet.) (mem. op., not designated for publication) (relating that although habeas trial court granted
applicant’s application for writ of habeas corpus under article 11.072 and vacated conviction when
applicant claimed that “he was prevented from appealing because he did not receive timely notice
of the judgment of conviction,” court should have instead granted out-of-time appeal because
applicant’s claims attacked trial proceedings and “should have been raised by appeal”); Cheek v.
State, No. 03-08-00540-CR (Tex. App.—Austin Oct. 17, 2008, no pet.) (mem. op., not designated
for publication)2 (deciding that case should be dismissed because it was not timely filed by his
appellate counsel but also stating that “Cheek may be entitled to an out-of-time appeal under the
circumstances, but he must seek it by means of a post-conviction habeas corpus petition” and then
citing to article 11.072); cf. Taiwo v. State, No. 01-07-00487-CR, 2010 Tex. App. LEXIS 4364,
at *8-10 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (mem. op., not designated for publication)
2
We did not include an electronic database cite for this case because one is not available
through LEXIS or Westlaw.
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(noting in procedural history that applicant challenged order imposing community supervision
under article 11.072 on ground that she received ineffective assistance of counsel and that
habeas trial court granted out-of-time appeal); Ex parte Balderrama, 214 S.W.3d 530, 532-36
(Tex. App.—Austin 2006, pet. ref’d) (addressing habeas claim under both article 11.072 and 11.08
that applicant’s appellate attorney was ineffective for failing to assert on appeal that evidence of
conviction was legally insufficient).3 In addition, although not specifically dealing with an untimely
appeal of a judgment of conviction, the court of criminal appeals has explained that an applicant may
request that his application for writ of habeas corpus be reconsidered under article 11.072 if he
shows that the trial court clerk never gave him notice that his initial writ had been denied because
3
In reaching our decision in this case, we are aware of our prior analysis concerning out-
of-time appeals in 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). In that
case, we determined that the habeas trial court did not abuse its discretion by denying relief under
article 11.072 regarding Sheikh’s claim that he was denied his right to appeal. Id. at *42-43. When
reaching this result, we noted that Sheikh was not challenging the validity of the judgment of
conviction imposing community supervision and, therefore, determined that he was not presenting
a valid claim under article 11.072. Id. at *42.
However, there are significant differences between that case and the one currently before this
Court. First, Sheikh admitted in his brief before the habeas trial court that he was not challenging
the lawfulness of his conviction. Id. Moreover, the Sheikh case did not involve an untimely appeal.
In fact, rather than expressing a desire to appeal, Sheikh expressly waived his right to appeal under
a punishment agreement that he entered into with the State. Id. at *8. Moreover, although Sheikh
urged in his habeas application that his appeal was invalid because the trial court did not follow
the terms of the punishment agreement, both the habeas trial court and this Court determined that
the punishment imposed was consistent with the agreement. Id. at *10, *11, *43-48. Moreover, in
the present case, the court of criminal appeals has already determined that the failure to appeal
McCarty’s conviction in the first count entitled him to an out-of-time appeal, and that same failure
to appeal serves as the backdrop for this habeas proceeding. Accordingly, we do not believe that our
analysis in Sheikh can be read as prohibiting an applicant from seeking an out-of-time appeal under
the circumstances present here.
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the failure to provide notice deprived him of his right to appeal the denial of his writ application.
Ex parte Parodi, No. PD-1740-11, 2012 Tex. Crim. App. Unpub. LEXIS 141, at *2-3 (Tex. Crim.
App. Feb. 29, 2012) (not designated for publication). In explaining its reasoning, the court likened
the relief sought to an out-of-time appeal under article 11.07 when an appellate attorney fails to file
a notice of appeal. Id. at *3.
In light of the preceding, we must conclude that McCarty is seeking to challenge the
legality of his conviction and that an out-of-time appeal is a permissible remedy under article 11.072.
Accordingly, we must also conclude that the district court abused its discretion by denying
McCarty’s application on the ground that he is not seeking relief available under article 11.072.
CONCLUSION
Having determined that the district court abused its discretion, we reverse the district
court’s order denying McCarty’s application for writ of habeas corpus and remand this case for
further proceedings.
David Puryear, Justice
Before Justices Puryear, Pemberton, and Bourland
Dissenting Opinion by Justice Pemberton
Reversed and Remanded
Filed: April 29, 2015
Do Not Publish
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