IN THE
TENTH COURT OF APPEALS
No. 10-12-00316-CR
EX PARTE JAMES KEVIN KELCH
From the 249th District Court
Johnson County, Texas
Trial Court No. F33975-C
MEMORANDUM OPINION
James Kelch appeals from the denial of an application for a writ of habeas corpus
that challenged the extension of his deferred adjudication community supervision for a
period of five years. TEX. CODE CRIM. PROC. ANN. art. 11.072; 42.12, § 22A(b) (West 2005;
Supp. 2012). Kelch was originally sentenced to concurrent terms of twelve years in
prison on two counts of aggravated sexual assault of a child and ten years of deferred
adjudication community supervision on an indecency with a child count. The State
filed a motion to extend Kelch's community supervision just prior to the expiration of
the ten years of Kelch's community supervision and the trial court extended Kelch's
community supervision for five years prior to that expiration in an agreed order signed
by Kelch. Kelch filed an application for a writ of habeas corpus in the trial court which
was denied. In that application and in his sole issue before this Court, Kelch complains
that the trial court lacked jurisdiction to extend his community supervision because the
original sentence was unlawful in that the trial court was without authority to sentence
Kelch to community supervision because of the nature of the offense. See TEX. CODE
CRIM. PROC. ANN. art. 42.12, § 3g (West Supp. 2012). Because the trial court did not have
the legal authority to sentence Kelch to community supervision Kelch contends that the
trial court was also without jurisdiction to extend that community supervision.
The State argues that Kelch was not sentenced to community supervision in
violation of article 42.12, section 3g of the Code of Criminal Procedure but was
sentenced to deferred adjudication community supervision, which may properly be
imposed pursuant to section 5 of article 42.12. Based on our review of the record, we
agree with the State. Kelch was originally sentenced to deferred adjudication
community supervision, which was not an unlawful sentence. The probation was
properly extended prior to its expiration. The trial court did not err by denying Kelch's
application for a writ of habeas corpus. We overrule Kelch's sole issue.
Conclusion
Having found no error, we affirm the judgment of the trial court.
TOM GRAY
Chief Justice
Ex parte Kelch Page 2
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed January 10, 2013
Do not publish
[CR25]
Ex parte Kelch Page 3