Ex Parte Kelly James McCarty

ACCEPTED
03-14-00575-CR
3802072
THIRD COURT OF APPEALS
NO. 03-14-00575-CR AUSTIN, TEXAS
1/16/2015 3:09:26 PM
JEFFREY D. KYLE
CLERK
IN THE COURT OF APPEALS

OF THE THIRD DISTRICT OF TEXAS FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
1/16/2015 3:09:26 PM
JEFFREY D. KYLE
KELLY JAMES McCARTY, Clerk

Appellant

V.

THE STATE OF TEXAS
Appellee

Appeal in Cause No. 30842B in the
Judicial District Court of Burnet County, Texas

Brief For Appellee

OFFICE OF DISTRICT ATTORNEY
3 3 ^ and 424* JUDICL\ DISTRICTS
Wiley B. McAfee, District Attorney
P. O. Box 725, Llano, Texas 78643
Telephone Telecopier
(325) 247-5755 (325) 247-5274
g.bunyard@co. llano .tx.us

By: Gary W. Bunyard
Assistant District Attorney
State Bar No. 03353500
ATTORNEY FOR APPELLEE

January 16, 2015

Oral Argument Waived
 Identity Of The Parties

Trial Court - Plea in 2008 and Retrial in 2009

Honorable Gilford L. Jones III (Retired)
33'"* Judicial District
Burnet County Courthouse Annex (North)
1701 East Polk St., Suite 74
Burnet, TX 78611

Trial Court - Habeas Corpus Application

Honorable Daniel H. Mills (former)
424* Judicial District
Burnet County Courthouse Annex (North)
1701 East Polk St., Suite 74
Burnet, TX 78611

State/Appellee

Sam Oatman (Trial Counsel)
District Attorney (Retired)
P. O. Box 725
Llano, Texas 78643
(325) 247-5755
State Bar No. 15161100

Cheryl Nelson (Trial Counsel)
Assistant District Attorney (former)
P. O. Box 725
Llano, Texas 78643
(325) 247-5755
State Bar No. 06839380

ii
 Gary Prust (Trial Counsel)
Assistant District Attorney (former)
P. O. Box 725
Llano, Texas 78643
(325) 247-5755
State Bar No. 24056166

Gary W. Bunyard (Appellate Counsel - Count One,
Assistant District Attorney Habeas Corpus Counsel, Appellate
P. O. Box 725 Counsel - Count Three [present])
Llano, Texas 78643
(325) 247-5755
State Bar No. 03353500
g.bunyard@co.llano.tx.us

Appellant

Richard Davis (Trial Coimsel)
Public Defender (former)
P.O. Box 398
Burnet, TX 78611
State Bar No. 05537100

Travis Williams (Trial Counsel)
Assistant Public Defender (former)
P.O. Box 398
Burnet, TX 78611
State Bar No. 00797743

Revis Kanak (Trial Counsel)
Assistant Public Defender (former)
P.O. Box 398
Burnet, TX 78611
State Bar No. 11091500

iii
Evan Stubbs (Appellate Counsel - Count One)
Attorney at Law (currently 424* Judicial District Judge)
202 North Porter Street
Lampasas, TX 76550
State Bar No. 24039198

Kelly James McCarty (Appellant Pro Se - Habeas Corpus and
114 OaMeaf Dr. Appeal - Count Three [present])
San Antonio, TX 78209
(210) 275-1875
kjmcc09@gmail.com

iv
 Table Of Contents

Page

Index of Authorities vi

Statement of the Case 2

Statement on Oral Argument 4

Response to Issues Presented 5

Statement of the Facts 6

Summary of the Argument - Response to Issue No. 1 8
The trial court properly denied the relief
requested in Appellant's Application for Writ
of Habeas Corpus filed under Art. 11.072 of
the Texas Code of Criminal Procedure because
the relief requested is not authorized by Art.
11.072.

Argument on Response to Issue No. 1 9

Prayer for Relief 12

Certificate of Word Count 13

Certificate of Service 13

Appendix I (Indictment) 14

Appendix II (Judgment Deferring Adjudication of Guilt) 18

Appendix III (Order setting aside the Judgment Deferring
Adjudication of Guilt) 21

V
Appendix IV (Judgments on Count One, Count Two,
and Count Three) 23

Appendix V (Order Dismissing Appeal) 29

Appendix V I (Order Granting Out-Of-Time Appeal for Count One) 32

Appendix VII (Memorandum Opinion Affirming Conviction) 35

Appendix VIII (Terms and Conditions of Probation) 49

Appendix IX (Application for Writ of Habeas Corpus under
Art. 11.08 56

vl
 Index Of Authorities

Case Law Page

Ex parte AIL 368 S.W.3d 827 (Tex. App. -
Austin 2012, pet. refd) 10

Ex parte Avers. 921 S.W.2d 438, 440 (Tex. App.-Houston
[IstDist] 1996, no pet.) 9

Ex parte Balderrama. 214 S.W.3d 530 (Tex. App. -
Austin 2006, pet. refd) 10, 11

Ex parte Enriquez. 227 S.W.3d 779 (Tex. App. -
El Paso 2005, pet. refd) 10

Ex parte Mann. 34 S.W.3d 716, 718 (Tex. App.--

Fort Worth 2000, no pet.) 9

Ex parte McPherson. 32 S. W.3d 860 (Tex. Crim. App. 2000) 11

Ex parte Phillips. 02-08-259-CR unpublished opinion

(Tex. App. - Fort Worth 2008, no pet.) 11

Guzman v. State. 955 S.W.2d 85 (Tex. Crim. App. 1997) 9

Morin v. State. 13-05-00181-CR unpublished opinion
(Tex. App. - Corpus Christi 2006, no pet.) 10

Constitutions

None cited

vii
Statutes/Rules

TEX. R. APP. PROC. Rule 38.1(d)

TEX. CODE CRJM. PROC. Art. 11.072 Sec. 1

TEX. CODE CRJM. PROC. Art. 11.072 Sec. 2 (b)

TEX. CODE CRIM. PROC. Art. 11.08

viii
 NO. 03-14-00575-CR

IN THE

COURT OF APPEALS

OF THE THIRD DISTRICT OF TEXAS

KELLY JAMES McCARTY,

Appellant

V.

THE STATE OF TEXAS
Appellee

Appeal in Cause No. 30842B
in the 33*^^ Judicial District Court of
Burnet County, Texas

Brief For Appellee

To The Honorable Justices Of Said Court:

Now comes the State of Texas, hereiaafter called Appellee, and submits this

brief pursuant to the provisions of the Texas Rules of Appellate Procedure in support

of the State's request affirm the judgment of the trial court.

1
 statement Of The Case

Appellant has not adequately described the Statement of the Case under the

provisions of Rule 38.1(d) TEX. R. APP. PROC.

Applicant was indicted on September 9, 2004, for three counts of Indecency

With a Child by Contact, each count involving separate children. APPENDIX I . A

trial by jury was conducted in February 2006, however, a mistrial was declared by the

trial court on the grounds that the jury was unable to come to a unanimous verdict.

On February 22, 2008, pursuant to a plea bargain agreement, the trial court accepted

Applicant's plea of Guilty to a single count of Injury to a Child as a lesser-included

offense. The trial court deferred adjudication of guilt and placed Applicant on

Community Supervision for a period of five years. APPENDIX II. On February 9,

2009, the trial court granted Applicant's motion to withdraw his plea of Guilty.

APPENDIX III.

A jury trial was then conducted and on March 7, 2009, the jury returned a

verdict of Guilty as to Count One and Count Three and a verdict of Not Guilty as to

Count Two. The punishment was assessed by the jury at five years imprisonment in

TDCJ, which was not recommended to be probated, on Count One and ten years

imprisonment in TDCJ, which was recommended to be probated, on Count Three.

2
The trial court ordered the term of community supervision for Count Three to begin

when the sentence imposed in Count One ceased to operate. APPENDIX IV.

Although Applicant's counsel filed a Notice of Appeal, such filing was untimely.

APPENDIX V.

Applicant filed an Application for Writ of Habeas Corpus under art. 11.07 of

the Code of Criminal Procedure. On August 26,2011, the Court of Criminal Appeals

granted Applicant an out-of-time appeal as to Count One but dismissed his claim as

to Count Three under art. 11.07 Sec. 3(a). APPENDIX VI.

On appeal of Count One, the Court of Appeals affirmed the conviction and

sentence on April 15, 2014. APPENDIX VII. Upon his release from incarceration.

Appellant, acting pro se, then filed this Application for Writ of Habeas Corpus under

art. 11.072 of the Code of Criminal Procedure seeking an out-of-time appeal of Count

Three. CR Vol. I Pages 3 - 6. The trial court denied the relief requested by

Appellant. CR Vol. 1 Page 12. This appeal was then initiated. CR Vol 1 Pages 11,

13.

3
 statement on Oral Argument

The undersigned waives Oral Argument. The undersigned does not believe that

Oral Argument will be beneficial for this case for the reason that the issues are straight

forward and lack any novel or complex nuances. Appellant has waived Oral

Argument. Should the Court believe that Oral Argument will assist the Court in any

way, the undersigned will gladly accommodate the Court.

4
 Response To Issues Presented

Response To Issue One: The trial court properly denied the relief requested in
Appellant's Application for Writ of Habeas Corpus filed
under Art. 11.072 of the Texas Code of Criminal Procedure
because the relief requested is not authorized by Art.
11.072.

5
 statement Of The Facts
Appellant has not fully described the facts of this case.

In the case that is the focus of this appeal. Appellant was a camp counselor in

charge of 10 year old boys. RR Vol. 4 Pages 93 - 94. The boys and Appellant lived

together during the camp period in a dormitory. RR Vol. 4 Page 98. As described

by victim Burnet County Buck 2004-25, Appellant taught the boys to pour Gold Bond

powder on the boys' penises and then rub the penises with water to create a stinging

sensation. RR Vol. 4 Pages 100-101. Then Appellant touched the penis of Burnet

County Buck 2004-25 telling him that he should get used to pulling the foreskin back

because girls will get freaked out seeing an uncircumcised penis. Appellant also told

Burnet County Buck 2004-25 that he needed to get a "boner" to help pull it back. RR

Vol. 4 Pages 104- 105. This touching of the penis of Burnet County Buck 2004-25

happened after Appellant showed the boys the "Gold Bond" trick. RR Vol. 4 Pages

109 - 110. Appellant also told the boys in the dorm that they needed to get used to

getting naked around boys because they would have to do it in the locker room at

school. RR Vol. 4 Pages 107,110. Appellant told the boys i f they get naked they can

listen to their favorite songs. RR Vol. 4 Pages 111, 116.

6
 Appellant was convicted by the jury for this conduct and on March 7,2009, the

jury assessed punishment at 10 years imprisonment and a fine of $10,000 with a

recommendation that both the find and the imprisonment be probated. APPENDIX

IV. The trial court imposed its standard terms and conditions of probation for sex

offenders. APPENDIX VIII.

As described by Appellant, the original Notice of Appeal was not timely filed.

APPENDIX V. As relief granted in Appellant's Application for Writ of Habeas

Corpus filed under art. 11.07 of the Code of Criminal Procedure, the Court of Criminal

Appeals permitted Appellant to pursue an appeal of his conviction in Count One but

dismissed the claim as to Count Three because of the limitations under art. 11.07

Sec. 3(a). APPENDIX VI. No further action was taken by Appellant as to the

conviction under Count Three until Appellant was released from prison on his sentence

under Count One and the probation imposed under Count Three began, at which time

Appellant filed the instant Application for Writ of Habeas Corpus under art. 11.072

of the Code of Criminal Procedure in which the remedy Appellant seeks is an out-of-

time appeal for Count Three. CR Vol. 1 Pages 3 - 6.

7
 Summary Of The Argument on
Response to issue No. i

(1) The trial court properly denied the relief requested in

Appellant's Application for W r i t of Habeas Corpus filed

under Art. 11.072 of the Texas Code of Criminal Procedure

because the relief requested is not authorized by Art. 11.072.

Appellant complains that his right to effective assistance of counsel under the

Fourteenth Amendment was violated and that the trial court's denial of the relief

requested in his art. 11.072 writ application was a denial of Appellant's right to due

process. However, the relief requested by Appellant in his art. 11.072 writ application

is for an out-of-time appeal. This is not a relief that is authorized under art. 11.072

of the Code of Criminal Procedure.

8
 Argument On Response to issue No. i

A trial court's decision to grant or deny relief on a writ of habeas corpus under

an abuse of discretion standard of review. Ex parte Mann. 34 S. W.3d 716, 718 (Tex.

App.-Fort Worth 2000, no pet.); Ex parte Avers. 921 S.W.2d 438, 440 (Tex.

App.-Houston [1st Dist.] 1996, no pet.).

As a general rule, the appellate courts, should afford ahnost total deference to

a trial court's determination of the historical facts that the record supports especially

when the trial court's fact findings are based on an evaluation of credibility and

demeanor. The appellate courts should afford the same amount of deference to trial

courts' rulings on "application of law to fact questions," also known as "mixed

questions of law and fact," i f the resolution of those ultimate questions turns on an

evaluation of credibility and demeanor. The appellate courts may review de novo

"mixed questions of law and fact" not falling within this category. Guzman v. State.

955 S.W.2d 85 (Tex. Crim. App. 1997).

In habeas corpus proceedings, virtually every fact finding involves a credibility

determination and the fact finder is the exclusive judge of the credibility of the

witnesses. In a Tex. Code Crim. Proc. Ann. art. 11.072 habeas case, the trial court is

the sole finder of fact. There is less leeway in an article 11.072 context to disregard the

findings of a trial court" than there is in a Tex. Code Crim. Proc. Ann. art. 11.07

9
habeas case, in which the Court of Criminal Appeals of Texas is the ultimate fact

finder. Thus, the familiar Guzman standard of review controls in such cases. Under

this standard, the appellate court affords ahnost total deference to a trial court's factual

findings when supported by the record, especially when those findings are based upon

credibility and demeanor. Ex parte Ali. 368 S.W.3d 827 (Tex. App. - Austin 2012,

pet refd).

Art. 11.072 establishes the procedures for an application for writ of habeas

corpus in which the applicant seeks relief from an order or judgment of conviction

ordering community supervision. TEX. CODE CRIM. PROC. Art. 11.072 Sec. 1.

The two forms of relief authorized under Art. 11.072 are that the application must

either challenge the legal validity of the conviction or order in which the community

supervision is imposed or the legal validity of the conditions of the community

supervision. TEX. CODE CRIM. PROC. Art. 11.072 Sec. 2 (b).

Challenges to the legal validity of the conviction or order in which the

community supervision is imposed would include claims of actual innocence (Morin

V. State. 13-05-00181-CR unpublished opinion [Tex. App. - Corpus Christi 2006, no

pet. ]), insufficiency of the evidence (Ex parte Balderrama. 214 S.W.3d 530 [Tex.

App. - Austin 2006, pet. refd]), ineffective assistance of counsel at trial (Ex parte

Enriquez. 227 S.W.3d 779 [Tex. App. - El Paso 2005, pet. refd]), and involuntary

10
plea (Ex parte Phillips. 02-08-259-CR unpublished opinion [Tex. App. - Fort Worth

2008, no pet.]). In comparison, the relief being sought by Appellant 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 in filing the Notice of Appeal

untimely and due to his second appellate counsel failing to pursue an appeal of this

Count Three conviction by way of habeas corpus once the Court of Criminal Appeals

dismissed his claim on Count Three in the art. 11.07 habeas corpus order.

Art. 11.08 has been held to be the vehicle by which persons who are subject to

community supervision may seek relief which is not otherwise available under Art.

11.072. TEX. CODE CRIM. PROC. Art. 11.08; see Ex parte McPherson. 32 S.W.3d

860, 861 (Tex. Crim. App. 2000)(Because Applicant's initial application seeking an

out-of-time appeal did not pertain to the validity of the prosecution or the judgment

of guilt, it was not a challenge to the conviction....); Ex parte Balderrama, 214 S.W.3d

530 [Tex. App. - Austin 2006, pet. refd]). In fact Appellant has already determined

this distinction and has filed an Application for Writ of Habeas Corpus under Art.

11.08 with the clerk of the trial court which has been docketed as 30842C and is

currently pending. APPENDIXIX.

11
 For these reasons the relief requested by Appellant in his Issue No. I must be

denied and the order of the trial court denying the relief requested be affirmed.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Appellee prays the Court deny

Appellant's appeal and affirm the judgment of the trial court.

Respectfully submitted,

OFFICE OF DISTRICT ATTORNEY
3 3 ^ and 424* JUDICL\ DISTRICTS
Wiley B. McAfee, District Attorney
P. O. Box 725
Llano, Texas 78643
Telephone Telecopier
(325) 247-5755 (325) 247-5274

By.
.^gafy'w.iimyard^
Assistant District Attorney
State Bar No. 03353500
g.bunyard@co.llano.tx.us
ATTORNEY FOR APPELLEE

12
 CERTIFICATE OF WORD COUNT

This is to certify that the pertinent portion of this brief contains 1,379 words
printed in Times New Roman 14 font according to the WordPerfect™ X7 word comit
tool.

CERTIFICATE OF SERVICE

This is to certify that a true copy of the above and foregoing instrument, together
with this proof of service hereof, has been forwarded by standard mail on the 16th day
of January 2014, to Kelly James McCarty, Appellant Pro Se, by email and by EServe.

^ ^ ^ ^ ^
Assistant District Attorney

13
APPENDIX I
NO. THF. S T A T E OF TEXAS VS. KELLY JAMES MCCARTY

INDICTMENT: INDECENCY WITH A CHILD BY CONTACT - 3 Comits

DEGREE OF FELONY SECOND DEGREE OFFENSE CODE 36010001 BOND 7 i y ^ < ^ ^

m THE 33^^ JUDICIAL DISTRICT COURT OF BURNET COUNTY. TEXAS ^«rffi^^

IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS:

COUNT ONE: INDECENCY WITH A CHILD BY CONTACT

THE GRAND JURY, for the County ofBURNET. State of Texas, duly organized,

impaneled and sworn as such at the April Term. A.D. 2004. of the 33"* Judicial District Court for

said County, upon their oaths present in and to said court at said term that KELLY JAMES

MCCARTY, hereinafter referred to as Defendant, on or about the 28^ day of July. 2004. and

before the presentment of this Indictment, in the County ofBURNET. and the State of Texas, did

then and there, with the intent to arouse or gratify the sexual desire of the said defendant,

intentionally or knowingly engage m sexual contact with BURNET CO, BUCK 2004-23 by

touching the genitals ofBURNET CO. BUCK 2004-23, a child younger than 17 years of age and

not the spouse of the defendant,

1 of 3
COUNT TWO: INDECENCY WITH A CHILD

And the Grand Jurors aforesaid, upon their oaths aforesaid, do further say, charge and

present in and to said Court at said Term that on or about the 28^ day of July. 2004. and anterior

to the presentment of this Indictment, in the said County ofBURNET. State of Texas, the said

KELLY JAMES MCCARTY, hereinafter referred to as defendant, did then and there, with the

intent to arouse or gratify the sexual desire of the said defendant, intentionally or knowingly

engage in sexual contact with BURNET CO. BUCK 2004-24 by touching the genitals of

BURNET CO. BUCK 2004-24, a child younger than 17 years of age and not the spouse of the

defendant,

2 of 3
COUNT THREE: INDECENCY WITH A CHILD

And the Grand Jurors aforesaid, upon their oaths aforesaid, do fiirther say, charge and

present in and to said Court at said Term that on or about the 28^^ day of July. 2004. and anterior

to the presentment of this Indictment, in the said County of BURNET. State of Texas, the said

KELLY JAMES MCCARTY, hereinafter referred to as defendant, did then and there, with the

intent to arouse or gratify the sexual desire of the said defendant, intentionally or knowingly

engage in sexual contact with BURNET CO. BUCK 2004-25 by touching the genitals of

BURNET CO. BUCK 2004-25, a child younger than 17 years of age and not the spouse of the

defendant.

AGAINST THE PEACE AND DIGNITY OF THE STATE.

FOREMAN OF THE GRAND JURY

3 of 3
APPENDIX II
 CASE NO. 30,842 COUNT Single
iNCmEOT NO./TRN: 000 9520 465

T H E STATE OF TEXAS I N T H E 33RD DISTRICT

V. COURT

K E L L Y JAMES MCCARTY BURNET COUNTY, TEXAS

STATE ID No.: TX

ORDER OF D E F E R R E D ADJUDICATION

Judge Presiding: HON. GUILFORD L . JONES, HI Date Order Entered: 2/22/2008

Attorney for State: CHERYL NELSON Attorney for
De£Bndant:
Offense:
INJURY TO A CHILD
Statiut?forQffpiW-
INDICTMENT Sec. 22.04 Penal Code
DateofOfiFenae:
7/28/2004
pfigyg^l^f Offense: Plea to OfEen^^: Findings on Deadly Weapon:
3RD D E G R E E FELONY GUILTY N/A
Terms pfPtea Bargain:
FIVE (5) YEARS DEFERRED ADJUDICATION, $3,000 FINE, NO CONTACT WITH CHILDREN UNDER
17 YEARS OF AGE, NO CONTACT WITH VICTIMS OR THEIR FAMIUES, AND SEX OFFENDER
COUNSEUNG WITH A PROVIDER AND PROGRAM APPROVED BY DR. MATTHEW FERRERA.
Plea to 1»* Enhancement Plea to Z"'^ Enhancement/Habitual
Paragraph: N/A Paragraph: N/A
Findings on 1** Enhancement Findings on 2""*
Paragraph: N/A Enhancement/Habittial Paragraph: N/A
ADJUDICATION OF GUILT DEFERRED;
DEFENDANT PLACED ON COMKfUNITY SUPERVISION.
P E R I O D O F O^^fUNI:TY SUPERVISION: F I V E (5) Y E A R S
Fine: Esst
RggtitUtipn: RgstjtfttiPn Payable to:
$3,000 $N/A • VICTIM (see below) • A G E N C Y / A G E N T (see below)
Sex Offender Regiatration Requirements apply to the Defendant TEX. CODE CRIM. FROC. chapter 62
The age of the victim at thetimeof the offense was 11 years.
Time N/A DAYS
Credited: NOTES: N/A
lanto Indicatod above im iocoqporHtod into tlM
Thia cause was calkd for trial in Burnet County, Texas. The State appeared by her District Attorney as named above.

IS Defendant appeared in person with Counsel.
01 Defendant knowingly, intelligently, and voluntarily waived the right to representation by counsel in writing in open court.
Both parties announced ready for trial. Defendant waived the right of trial by jury and entered a plea as indicated
above. The Court admonished the Defendant as required by law. It appeared to the Court that Defendant was mentally
competent to stand trial, made the plea &eely and voluntarily, and was aware of the consequences of this plea. The Court
received the plea and entered it of record. Having heard the evidence submitted, the Court FENDS such evidence substantiates
Defendanlfs guilt. The Court FiNDB that, in this cause, it is in the best interest of society and Defendant to defer proceedings
without entering an adjudication of guilt and to place Defendant on community supervision.
The Court Fnros the Presentence Investigation, if so ordered, was done according to the applicable provisions of TEX. CODE
CRM. PROC. art. 42.12 § 9.

Otder_i4_Deferred_A4)(idieatiaa_050I06.doc
 The Covirt OsDEsa that Defendant is given credit noted above for thetimespent incarcerated. The Court ORDERS Defendant
to pay allfines,court costs, and restitution as indicated above.
The Court ORDSHS that no judgment shall be entered at this time. The Court further ORDERS that Defendant be placed on
community supervision for the adjudged period so long as Defendant abides by and does not violate the terms and conditions of
community supervision. See TEX. CODE CRIM. PROC. art. 42.12 § 5(a}.
F^rtfogmft)re. thgfoltowingmmfiil fiTifaw or pyd^ra apply:

Signed and entered on

X
JUDGE PRESIDING

Clerk:

Right Thumbprint

Pare 2 of 2
APPENDIX HI
 Cause No. 30842

STATE OF T E X A S IN T H E DISTRICT COURT OF

V. Bumet COUNTY, TEXAS

K E L L Y JAMES M C C A R T Y 33*^" JUDICIAL DISTRICT

ORDER SETTING ASIDE ORDER OF DEFERRED ADJUDICATION

Came on to be considered on February 25,2008, Oral Motion to Set Aside Order of Deferred
Adjudication and Withdraw Plea of Guiltyfiledby Defendant, Kelly James McCarty
Appearances: State of Texas by her Assistant District Attorney Cheryl Nelson and Defendant McCarty
and his attorney Tim Inman.
On February 22,2008 all parties were present in court and Defendant entered his plea of guilty to
the offense, which plea was accepted by the Court and he was placed on deferred adjudication probation.
All relevant papers were signed and the Community Supervision and Corrections Department (CSCD)
made contact with the Interstate Compact for Adult Probationers for permission to transfer the case to
Defendant's home state. He was instructed to remain in Texas until clearance was gained and he did so.
On Monday, February 25,2008 all parties again appeared in court.
On February 25,2008 all parties were advised by CSCD that transfer was denied by the
Compact, whereupon Defendant, through his attorney, moved to set aside the Order of Deferred
Adjudication and to withdraw his plea of guilty. The Court granted the motion and from the bench
pronounced the granting of the motion and thereupon set aside the Order.
Counsel were instructed to prepare an order to memorialize the action taken but the same was not
done. Therefore, this Order is entered to evidence such prior action.
Richard Davis has since been appointed to represent the Defendant.
The Court is of the opinion that the same should be Granted, accordingly, it is
ORDERED AND DECREED that the Order of Deferred Adjudication signed by the Court on February
22, 2008 was and hereby is SET ASIDE for all purposes and held for naught.

Signed on ^ , 20^^
GuirfordfL. Jones
Presiding Judge

AGREED AS T O SUBSTANCE AND FORM:

Richafd CJavis, (current) Atty. For Defendant

C:\Oocuments and Settfngs\Gil\My Documents\BU30842McCarty_Order_vacate.doc

FEB - 9 2009
APPENDIX IV
 P5|
NO. 3 0 8 4 2 Couirr
INCIDENT No./TRN:

T H E STATB OP T E X A S s IN T H E 33"> D I S T R I C T 1
s r.3
V. s COURT
s
KELLT JAMES MCCARTY s BURNET COUNTY, TEXAdj
s
STATE ID No.: TX a § 1

JUDGMENT O F CONVICTION B Y J U R Y
Judge Presiding: HoM. GUILFORD L . JONES, U I Date Judgment 3/7/2009
Entered:
Attorney for State: CHERYL NELSON Attorney for RICHARD DAVIS
Defendant:
Offense for which Defendant Convicted:
INDECENCY WITH A CHILD BY CONTACT
Charging Instrument statute for Offense:
INDICTMENT 21.11 Penal Code
Da^ygfOffgn^e:
7/28/2004
Degree of Offense: Ple^tpQff^n^e-.
2ND DEGREE FELONY NOT GUILTY
Verdict of Jury: Findings on Deadly Weapon:
GUILTY N/A
Plea to i« Enhancement Plea to 2"d Enhancement/Habitual
Paragraph: N/A Paragraph: N/A
Findings on 1"* Enhancement Findings on 2^
Paragraph: N/A Enhancement/ Habitual
Paragraph: N/A
Punished Assessed bv; PR^e g?ntence lmpQ8ellinmnT SUPERVISION FOR N / A .
Fine: Court Costs: Restitution: Restitution Payable to:
$10,000 $ 5H< OO $ N / A • VICTIM (see below) • AGEWCY/AIMBNT (see below)
Sex Offender Rsgiitmtion Requirements apply to the Defendant. TEX. CODE CRIM. PROC. chapter 62.
The age of the victim at the time of the offense was Ten (10) years.
If Pefen4ant i? tQ WAtei^g in TDCJ, entgr jfipflrggrjitiffl rioda in chronological order,
From to From to Ftom to
Time From to From to Prom
Credited: to
If Pfffim4flpt i§ tP »CTV-Conflnement / Confinement In Lieu of Payment. The Court O S D B M Defendant immediately committed
to the custody of the Sheriff of County, Texas on the date the sentence is to commence. Defendant shall be confined in
the County Jail for the period indicated above. The Court 0RI»R8 that uponreleasefrom confinement Defendant shall
proceed immediately to the . Once there, the Court Onmaa Defendant to pay, or make arrangements to pay, any
remaining unpaidfines,court costs, and restitution as ordered by the Court above.
• line Only Payment. The punishment assessed ai^inst Defendant is for a wmm OHLT. The Court ORDBRS Defendant to
proceed immediateb^ to the Office of the County . Once there, the Court ORDBM Defendant to pay or make
arrangements to pay allfinesand court costs as ordered by the Court in this cause.
Brocution / Snaneneion of Sentence feelect onel
IS The Court ORDBHS Defendant's sentence BXBCOTSD.
• The Court ORDERS Defendant's sentence of confinement SDSPIIIDBD. The Court ORDBUB Defendant placed on community
supervision for the adjudged period (above) so long as Defendant abides by and does not violate the terms and conditions of
community supervision. The order setting forth the terms and conditions of community supervision is incorporated into this
judgment by reference.
The Court OKinBRfl that Defendant is given credit noted above on this sentence for the time spent incarcerated.
Fnrthermore, the following apecial flndinga or ordera apply;

Signed and entered o n Blarclt 7, 2009

JUDGE PRESIDING

Clerk:

Right Thumbprint

Judgn>ent_McCarty Pa«e2 of2
T H E STATE OF TEXAS IN T H E 33RD DISTRICT

V. COURT

K E L L Y JAMES M C C A R T Y BURNET COUNTY, TEXAS

STATE ID No.: TX

JUDGMENT OF ACQUITTAL BY JURY
Judge Presiding: HON. GUILFORD L. JONES, HI Date Ju^ment
Entered: 3/7/2009
Attorney for State: CHERYL NELSON Attorney for
Defendant: RICHARD DAVIS
Charg^4 QS^n^'
INDECENCY WITH A CHILD B Y CONTACT
Statute for Offense:
INDICTMENT 2L11 Penal Code
to Qffense:
NOT GUILTY
All pertinent infismation, naaias end aeaeMmente indkatad above too inompozatad into the languace of the jadpnent bekw hy rafinence.
This cause was called for trial in Bumet County, Texas. The State appeared by her District Attorney.
Counael / Waiver of Counsel Oselect one)
13 Defendant appeared in person with Counsel.
D Defendant knowingly, intelligently, and volimtarily waived the right to representation by counsel in writing in open court.
It appeared to the Court that Defendant was mentally competent and had pleaded as shown above to the charging
instrument. Both parties announced readyfortrial A jury was selected, impaneled, and sworn. The INDICTMENT was read to the
jury, and Defendant entered a plea of NOT GUILTY to the charged offense. The Court received the plea and entered it of record.
The jury heard the evidence submitted and the argument of counsel. The Court charged the jury as to its duty to determine
the guilt or innocence of Defendant, and the jury retired to consider the evidence. Upon returning to open court, the jury delivered its
verdict. The Court received the jury's verdict and ordered the verdict entered of re(X>rd upon the minutes of the Court as follows:
' m , the Jury, find the defendant NOT GUILTY."

The Court ORDERS. ADJUDGES, AND DECREES that Defendant is NOT GUILTY of the charged offense as
FOUND BY THE VERDICT OF THE JURY. The Court PURTHEE ORDEES Defendant immediately discharged.

Signed and entered on March 7, 2009

X
SON. GUILFORD L. JONgS, H I
JUDGE PRESIDING

Clerk:
.0-aociuLJF
BiSTRICTOERK

MAR 9 2009

iRNtTCOUNniX
„ DEPUTY

Judginent_oLAcquttalJ>y_Jtuy_050106. doc Page 1 of 1
 IB N o . 3 0 8 4 2 CotnrrTtlJlP
INCIDENT No./TRN:

T H E STATE OF TBXAS S IN T H B 3 3 " D I S T R I C T
§
V. s COURT
s
K B I X Y JAMBS MCCARTY s B U R N B T COUVTYY T E X A S
s
STATE ID No.: TX §

JUDGMENT O F CONVICTION B Y J U R Y
Judge Presiding: ROM. GUILFORD L . JONES, I I I Date Judgment
Entered: 3/7/2009
Attorney for State: CHERYL NELSON Attorney for
Defendant: RICHARD DAVIS
Offense for which Defendant Convicted:
INDECENCY WITH A CHILD BY CONTACT
pi^fflgfflg In^tmment: Statute for Offense:
mDICTMENT 21.11 Penal Code
7/28/2004
Degree ofOffenae: Plea to Offeq^:
2ND DEGREE FELONY NOT GUILTY
v<^rdly^pf^\try: Findings on Deadlv Weapon:
GUILTY N/A
Plea to l«t Enhancement Plea to 2n<* Enhancement/Habitual
Paragraph: N/A Paragraph: N/A
Findings on 1** Enhancement Findings on 2n<«
Paragraph: N/A Enhancement/Habitual
l^uragp:aph:
N/A
P^t? g^n^nce Impp?^: Pate Se^t^nge ^ (^jpam^nq^;
JURY 3/7/2009 3/7/2009
Punishment and Place
of Confinement- Ten (10) YEARS INSTITUTIONAL DIVISION, TDCJ
THIS SEHTBHCB SHALL RUN C O N S B C U n V ^ Y (see below).
SBRTEirCB OP COHFIHBMEirr SUSFERDED, DBTEliSAHT PLACKD ON COlOnmiTT SOPESRVISIOH F O R Ten (10) YEARS.
Fine: Court Costs: l^e^ti^tion: Restitution Pavable to:
$ lOjOOO PROBATED $N/A • V I C T I M (see below] • AQEWCY/ACMT (see below)
Sex OCfender Registration Requirements apply to the Defendant. TEX. CODE CRIM. PROC. chapter 6 2 .
The age of the victim at the time of the offense was Ten (10) years.
If Defendant is to serve sentence in TDCJ. enter incarceration periods in chronological order.
From to From to Ftcm to
Time From to From to From to
Credited:
If PCfeR4mt i919 yrve sentence in county jail or is givencredit towardfineand costs, enter davs credited below.
DAYS NOTES: N/A
AU fwtfaumt lafimnation, ammmm and i iBta tadlratod abov* an laoerponted late thm laagiiag* of Uw joAgmrat bakm by rafarMHw.
Tliis cause was called for trial in Bomet County, Texas. The State appeared by her District Attorney.
CoimefI / WirfVfy Qf g^HBfffelfCt onft)
1^ Defendant appeared in person with Counsel.
Q Defendant loiowingly, intelligently, and voluntarily waived the right to representation by counsel in writing in open court.
It appeared to the Court that Defendant was mentally competent and had pleaded as shown above to the charging
instrument. Both parties announced ready for trial. A jury was selected, impaneled, and sworn. The INDICTMENT was read
to the juiy, and Defendant entered a plea to the chsu-ged offense. The Court received the plea and entered it of record.
Hie jury heard the evidence submitted and argument of counsel. The Court charged the jury as to its duty to
determine the guilt or iimocence of Defendant, and the jury retired to consider the evidence. Upon returning to open court,
the jtuy delivered its verdict in the presence of Defendant and defense counsel, if any. ——
The Court received the verdict and Oamam it entered upon the minutes of the Court. :
FmiilfflimTTt Aseeseed by Jury / Court / No electton feclect onet
Ji)dgineiit_McCany(Count Tiim) PR«e l o f 2
SI i||nqr.> Pttfendant entered a plea anDu ocHiipty with die & I b ^ ^

ofprobotkm date as diracted by Piobotkm

1 Attmd,paitk:;i»teandooiiipiBtBaps^^^
pfmider,asd]is:tBdbydieProbatkmO£Qcer Remam in said program until siKcess&fiy
dischaiged by the sex oflfender provider.

3. diereasonabfeand necessary (»sisjbrps)dn^
tieatnientof1hcvictim(s)wfaichliavebeenn^^
not exceed one (1) >ear.

4. DonotbeabnewifearydnkiorcMdimunderiheageofS (17) yEOTSwifliaut written pennissicai
of>our I M a l m Ofifcer witboiit a treadnoit apf^

5. ll)el>elendamwinotnx>veoutofihecoun^ofresjden^
^ supervising probotKHi officer.

6. The Defiaxlant win prepare written assigprneols as do

7. llieDe&ndant win not have ai^oonlad with tbevic^

8. SiihniitlDabloodsanspleorodierspecimeDtetheDq^^
Govemmem Gxle^ ibr puipose of oeatiqg a DNA lecoidit^

9. Subniitapo];ygi!^tesdi%asdii«:tedfay1hBC(mnu^
same.

10. Do not possess ai^ sexually-sdmulating ixv sex^^
patninizeai^place where suc^matenal or eotert^^ Avoiduseof
siteinet uidess given pemifisicm ^

11. Do not utilize 900teiephonenumbetsunless approved in advance and in w i ^ ^
OflScer.

12. C H i m SAFETY ZOWE-SEXUAL ( M I L D E R ITOBATION
 a Do i»t a^iervise cr pEBtici»le in anypipgi^
wbo are underflieage of 17 and iat r^gulariy provides aWetic, dvic, or cultural activities.

b. Donotgoon,in,orwilfainadistaiiceof2(X)>aids^K4ierechfl^
dayzffie &ci%, pl^/ground, public or private )ouifaceda; piblic swimming pool, or video
arcade

c. Donotinitiatet,establisfa,normaiatBincontactw]thaay(^
in advance and in writing bythe District Judge, Do not date or socialize wifli ai^person^^
has chiklim under tlie £ ^ of 17 unless approved in advance and in writi^
Supersdsdon officer.

d Dotiotresidewidianydiildutidertfaeageofnorcotd^
approved by die Court.

13. Abkle by aDtreatmaotnilesofdie sex o&nder provider.

14. Do not biteh hike or pick up hitch bikers.

15. CkiCk;tober31 ofeachysarofprobatbnAeD^iidantmustiemain^
November 1 and nnjstnDtpaitic^pQte in Halbweenacfiviti^ Ihepoidili^Qalfaeiesideoceniustbeoffaal
the door cbsed ta aO dnkfaen/jpeisoas paitk^^

16. aher JT^

Sjgnedtedate:

JUDGE PRESIDING

I hadOy ackDO\Kiedgetfiat1 have received a copy oftiietemis an^ cond^ions of probation, inckidiqg ai^ tenns
oonditiais set out in any Supplements.

RIGHT THUMB PRINT

revised 1-04
APPENDIXIX
 Cause No. 30842

KELLY JAMES MCCARTY § IN THE DISTRICT COURT OF
§
VS. § BURNET COUNTY, TEXAS
§

THE STATE OF TEXAS § 3 3 ^ JUDICIAL DISTRCT

APPLICATION FOR WRIT OF HABEAS CORPUS
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, K E L L Y JAM£S MCCARTY, hereinafter referred
to as "Applicant, and pursuant to article 11 .OS, Texas Code of Criminal
Procedure, and submits this, his Application for Writ of Habeas Corpus
complaining as follows:
Applicant, K£LLY JAM£S MCCARTY, is illegally restrained of
his liberty by THE HONORABLE J. ALLEN GARRETT, PRESIDING
JUDGE 33^ JUDICIAL COURT OF BURNET COUNTY, TEXAS, by
being currently subjected to terms and conditions of commimity supervision
for the offense of indecency with a child by contact - a felony conviction in
catise number 30842, based upon a jury finding of guilty that was never
subject to appeal due to a mistake by John Butler, Applicant's former
appellate attorney, that is in no way attributable to Applicant. This is a
violation of the Fifth Amendment to the United States Constitution, and in
support of the same. Petitioner would show this Honorable Court as follows:
L
Applicant, Kelly James McCarty, is restrained of his liberty pursuant
to article 11.01, Texas Code of Criminal Procedure, in that he is currently
subject to terms and conditions of conununity supervision.
n . FACTUAL BACKGROUND
 Applicant Kelly James McCarty was convicted by a jury on two
counts of Indecency with a Child by Contact on March 7,2009. The jury
assessed punishment for count one at five years prison and a $10,000 fine.
Punishment for count three was assessed at ten years prison and a $10,000
fine with botii prison time and fine suspended. Following the convictions
and a motion for new trial, attorney John Butler was appointed to represent
Applicant on direct appeal. However, Mr. Butler foiled to file a timely notice
of appeal and the appeal was dismissed for want of jurisdiction. This was in
03-09-00378-CR.
An application for writ of habeas corpus was later filed under article
11.07 of the Texas Code of Criminal Procedure. In WR-74,352-01, the Court
of Criminal Appeals granted Applicant an out-of-time appeal for count one
but denied the request for an out-of-time appeal on count three for want of
jurisdiction.

m . CLAIMS
A) Through nofouitoftilieApplicant, he was denied the right to an
effective appeal.
John Butler was appointed as the Applicant's appellate attorney
following ihe second trial (the first trial having ended m a mistrial when the
jury failed to reach a verdict). He was simultaneously appointed to represent
another client at the same tune he received Applicant's case. When
calendaring the deadlines for &e notice of appeal for the two cases, Mr.
Butler miscalculated the deadlme for Applicant and submitted the notice of
appeal three days too late. The ^peal was therefore dismissed for lack of
jurisdiction. Mr. Butler made no effort to correct his mistake and he took no
further action. Mr. Butler's mistake was not attributable to Applicant.
Therefore, Aj^licant's right to appeal the conviction was violated. In the
trial court's findings of fiacts submitted to the Court of Appeals in Ex Parte
Kelly James McCarty (WR-74352-01) the trial court determined that
Applicant had intended to appeal his conviction but appellate counsel failed
to timely file a notice of appeal. The Court of Appeals determined that
Applicant was entitled to an out of tune appeal as to Count One and granted
him that relief
In this situation, it is appropriate to seek habeas relief under Art.
11.08. In Ex Parte Balderrama, 214 S.W.3d 530 (Tex. App. 2006),
Balderrama invoked article 11.08 when seekmg an out of time appeal. In
their rulmg, the Court of Appeals stated,
^'Balderxama's writ application invoked code of criminal procedure
article 11.08, which has been held to be the appropriate procedural
vehicle for a person on felony probation seeking post-conviction
habeas corpus relief. Tex.Code Crim. Proc. Ann. art. 11.08 (West
2005); see Rodriguez v. Court ofAppeals, 769 S.W.2d 554,557
(Tex.Crim.App.1989); Ex parte Renier, 734 S.W.2d 349,353 (Tex.
Crim.App.1987).''
In this situation, article 11.072 of the code of criminal procedure does not
apply because Applicant does not seek to challenge the validity of his
conviction but is merely seeking an out oftimeappeal. As conceded by
Assistant District Attorney Bimyard m his response to Applicant's filing
under Cause No. 30842B, the only time relief is authorized under Art.
11.072 of the Code of Criminal Procedure is when the applicant meets tiie
grounds set forth under Art. 11.072 Sec. 2(b). These groimds are:
(b) At the time the application is filed, the applicant must be, or must
have been, on community supervision, and the application must
 challenge the legal validity of:
(1) the conviction for which or order in which community siqiervision
was imposed, or
(2) tiie conditions of community supervision.
In Ex parte McPhersoa 32 S.W.3d 860,861, the Court of Appeals held that
a habeas corpus application seeking an out-of-time appeal does not
challenge the conviction. Additionally, Applicant is not currently
challenging the conditions of commumty supervision. Since Applicant is
entitled to one appeal as of right, as mandated by the Supreme Court of the
United States in Douglas v. California, 372 U.S. 353 [83 S.Ct. 814,9
L.Ed.2d 811] (1963), and article 11.072 does not authorize that relief in this
situation, article 11.08 is the only remaining procedural avenue available
under habeas law through which Applicant can receive the required appeal.
Therefore, article 11.08 is the appropriate article under which this
application should be filed.
In this case the distiict court has the authority and duty to grant an out
of time appeal in accordance with Texas Code of Criminal Procedure article
11.05. In Rodriguez w. Court of Appeals, Eighth Supreme Judicial Dist., 769
S.W.2d 554 (Tex. Crim. App. 1989), the Court stated,
"We hold that the district court had jurisdiction to entertain the writ of
habeas corpus, and applicant in this cause properly invoked that
jurisdiction by filing his writ with the district court. Thus, the district
court had jurisdiction of the habeas application. Since the district
court had this jurisdiction, it had the authority to grant an out-of-time
appeal or other relief, such as appointment of counsel or compilation
of the record on E^peal."
With regard to jurisdiction. Article 5, § 8 of the Texas Constitution states:
 "^District Court jurisdiction consists of exclusive, appellate, and
original jurisdiction of all actions, proceedings, and remedies, except
in cases where exclusive, appellate, or original jurisdiction may be
conferred by this Constitution or other law on some other court,
tribunal, or administrative body. District Court judges shall have the
power to issue writs necessary to enforce their jurisdiction. The
District Court shall have appellate jurisdiction and general supervisory
control over the County Commissioners Court, with such exceptions
and under such regulations as may be prescribed by law."
Since tiiere is nothing in Article 11.08 that confers jimsdiction to any other
court, tiie District Court has the authority and duty to grant an out-of-tune
appeal.

In conclusion. Applicant has shown that, through no fault of his own,
he was denied his right to appeal his conviction on count three under cause
number 30842. This constitutes a violation of his Fifth Amendment right
under the United States Constitution. Since Applicant does not seek to
challenge the validity of his conviction or terms or community supervision,
the only available procedural avenue through which relief can be granted is
article 11.08 of the Texas Code of Criminal Procedure. The Court of
Appeals has established through multiple rulings that article 11.08 can be
invoked in cases involvmg community supervisioa Article 11.05 of the
Texas Code of Criminal Procedure and Article 5, § 8 of the Texas
Constitution provide this district court with the jurisdiction and authority to
issue an out-of-time appeal.
 WHEREFORE, PREMISES CONSIDERED, Applicant Kelly James
McCarty, respectfiiUy prays that this Honorable Court:
(1) Conduct a hearing on the allegations contained in this
Application.
(2) Afier notice and hearing, enter an Order granting Applicant
relief by granting Applicant an out-of-time appeal.

Respectfully submitted.

Kelly James McCarty
IHOakleafDr.
San Antonio TX 78209
Phone: (210)275-1875
Email: kjmcc09@gmail.com
STATE OF TEXAS §
COUNTY OF BEXAR §

BEFORE ME, the undersigned authority, personally appeared Kelly
James McCarty, Applicant herein, after being duly sworn, stated upon oath
that he has read the foregoing Application for Writ of Habeas Corpus and it
is true and correct to the best of his knowledge and belief

SWORN TO and subscribed before me on this 9^ day of
September, 2014.

M Notary Public, State of Texas _
My Commission Expires: ^ ^ ' ^ ^

km)
 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing
instrument has been delivered via certified mail, return receipt requested to
the office of Wiley B. McAfee, District Attorney, Bumet County District
Attorney's Office, Bumet, Texas,

SIGNED this day of September, 2014.