Ex Parte Kelly James McCarty

ACCEPTED
03-14-00575-CR
3993427
THIRD COURT OF APPEALS
AUSTIN, TEXAS
2/3/2015 2:08:30 AM
JEFFREY D. KYLE
CLERK
No. 03-14-00575-CR

FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
IN THE COURT OF APPEALS
2/3/2015 2:08:30 AM
JEFFREY D. KYLE
THIRD DISTRICT OF TEXAS Clerk

SITTING IN AUSTIN, TEXAS

___________________

KELLY JAMES MCCARTY

Appellant

VS.

THE STATE OF TEXAS

The State

__________________

Appealed from the 33rd Judicial District Court

Of Burnet County, Texas

___________________________________________________________________

APPELLANT’S REPLY BRIEF

___________________________________________________________________

KELLY JAMES MCCARTY
Pro Se Appellant
114 Oakleaf Dr.
San Antonio TX 78209
(210) 275-1875 phone
kjmcc09@gmail.com email

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 IDENTITY OF PARTIES & COUNSEL

Pursuant to the provisions of Rule 38.1(a), Texas Rules of Appellate
Procedure, a complete list of the names of all parties to this action and counsel
are as follows:

Parties: Kelly James McCarty, Appellant

State of Texas, Appellee

Appellant is representing himself.

Appellant was represented at trial by:
Richard Davis
Texas Bar No. 05547100
P. O. Box 398
Burnet, Texas 78611
Tel. (512) 556-8970
Fax (512) 556-8975

Appellee was represented at trial by:

Mr. Sam Oatman
District Attorney for Burnet County
33rd Judicial District
P. O. Box 725
Llano, Texas 78643

Appellee is currently represented by:

Gary W. Bunyard
Assistant District Attorney
P. O. Box 725
Llano, Texas 78643
Tel. (325) 247-5755
Fax (325) 247-5274

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 TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL – pg. 2
INDEX OF AUTHORITIES – pg. 4
ISSUES PRESENTED – pg. 6
SUMMARY OF FACTS – pg. 6
SUMMARY OF THE ARGUMENT – pg. 7
ARGUMENT – pg. 7
Issue One: APPELLANT IS CHALLENGING THE LEGAL VALIDITY OF HIS
CONVICTION ON COUNT THREE THROUGH THIS WRIT OF HABEAS CORPUS AND
IS ENTITLED TO RELIEF IN THE FORM OF AN OUT OF TIME APPEAL, WHICH IS A
FORM OF RELIEF AUTHORIZED UNDER ARTICLE 11.072 OF THE TEXAS CODE OF
CRIMINAL PROCEDURE.
– pg. 7
PRAYER – pg. 15
CERTIFICATE OF SERVICE – pg. 16
CERTIFICATE OF COMPLAINCE – pg. 17
APPENDIX I – pg. 18

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 INDEX OF AUTHORITIES

CASES

Allen v. Hardy
478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986) – pg. 9

Cheek v. State
No. 03-08-00540-CR (Tex. App. –Austin 2008, not published) – pg. 13

Evitts v. Lucey
469 U.S. 387, 396, 105 S. Ct. 830, 836 (1985) – pgs. 9, 11, 14

Ex Parte Kelly James McCarty
No. AP-76,607 (Tex. Crim. App. 2011, not published) – pgs. 8, 14

Ex parte Parodi
No. PD-1740-11 (Tex. Crim. App. 2012, not published) – pg. 12

Ex parte Twyman
716 S.W.2d 951 (Tex. Crim. App., 1986) – pg. 8

Ex Parte Villanueva
252 S.W.3d 391 (Tex. Crim. App 2008) – pgs. 13, 14

Taiwo v. State
No. 01-07-00487-CR (Tex. App. – Houston 2010, not published) – pg. 12

State v. Burnett
No. 05-13-00247-CR (Tex. App. - Dallas 2013, not published) – pg. 12

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 STATUTES

Texas Code of Criminal Procedure
Article 11.072 – pgs. 9, 11, 12, 13, 14

Texas Code of Criminal Procedure
Article 44.02 (c) – pg. 9

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TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
NOW COMES, Kelly James McCarty, Appellant in this cause, and files this
reply to Appellee’s brief.

ISSUES PRESENTED

Response to Appellee’s Issue One: APPELLANT IS CHALLENGING THE LEGAL
VALIDITY OF HIS CONVICTION ON COUNT THREE THROUGH THIS WRIT OF
HABEAS CORPUS AND IS ENTITLED TO RELIEF IN THE FORM OF AN OUT OF TIME
APPEAL, WHICH IS A FORM OF RELIEF AUTHORIZED UNDER ARTICLE 11.072 OF
THE TEXAS CODE OF CRIMINAL PROCEDURE.

SUMMARY OF FACTS

The first paragraph of Appellee’s Statement of the Facts is comprised of
inaccurate statements regarding the facts of this case. The record he cites is not
before this Court. As such, his statements must be disregarded as
unsubstantiated.

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 SUMMARY OF THE ARGUMENT

Since Appellant’s conviction on count three was able to become final only
through the violation of his Sixth and Fourteenth Amendment Constitutional
rights, he is challenging the validity of that conviction when he seeks relief in the
form of an out of time appeal through this writ of habeas corpus pursuant to
article 11.072 of the Texas Code of Criminal Procedure.

ARGUMENT

ISSUE ONE: APPELLANT IS CHALLENGING THE LEGAL VALIDITY OF HIS
CONVICTION ON COUNT THREE THROUGH THIS WRIT OF HABEAS CORPUS AND IS
ENTITLED TO RELIEF IN THE FORM OF AN OUT OF TIME APPEAL, WHICH IS A
FORM OF RELIEF AUTHORIZED UNDER ARTICLE 11.072 OF THE TEXAS CODE OF
CRIMINAL PROCEDURE.

This entire case turns on the question of whether or not Appellant is
challenging the validity of his conviction on count three when he asserts that he
was denied his Sixth Amendment right to effective assistance of counsel on
appeal and his Fourteenth Amendment right to due process. Appellant is
challenging the validity of the conviction because the conviction was only able to
become final through the violation of Appellant’s Sixth and Fourteenth
Amendment rights.

Appellant will briefly review several important facts that are pertinent to
this case that are not being disputed by the Appellee. To begin with, no one is
disputing the fact that the conviction that is the subject of this writ of habeas

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corpus has never been appealed. Nor is anyone disputing the fact that the
Appellant Kelly McCarty desired to appeal this conviction in a timely fashion but
was prevented from doing so when his court appointed appellate attorney, John
Butler, failed to file a timely notice of appeal. This fact was ascertained when the
Trial Court conducted a hearing to determine findings of fact in regard to Ex parte
Kelly James McCarty (No. AP-76,607 Tex. Crim. App. 2011, not published). A
transcript of the hearing can be found in Appendix I of this brief. This Court also
recognized that John Butler, the Appellant’s original appellate attorney, failed to
file a timely notice of appeal in the opinion issued in Ex parte McCarty, Id. A copy
of this opinion is attached in Appellee’s brief under Appendix VI. Following the
dismissal of Appellant’s claim as to count three in Ex parte McCarty, Id., no further
action was taken in regard to count three until this writ of habeas corpus was filed
with the Trial Court. All proceedings conducted regarding count one, including the
out of time appeal that was granted and is referenced in Appendix VII of
Appellee’s brief, have no bearing on this case because the Court of Appeals did
not have jurisdiction over count three until notice of appeal was filed for this writ
of habeas corpus. See Ex parte McCarty, Id. and Ex parte Twyman, 716 S.W.2d 951
(Tex. Crim. App., 1986). Having established that this is the first time the Court of
Appeals has jurisdiction for the conviction on count three and that the Appellant’s
original appellate attorney failed to provide effective assistance by missing the
deadline to file a timely notice of appeal for count three, Appellant can address
the issues raised in Appellee’s brief.

Appellee argues that since the only relief sought by Appellant is an out of
time appeal, Appellant is not challenging the validity of his conviction. Appellee
also asserts that the relief being sought (the out of time appeal) is not authorized

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under art. 11.072 of the Texas Code of Criminal Procedure. However, Appellee
does not reference any law, case law, or statute that expressly states that an out
of time appeal is not authorized under art. 11.072 of the Texas Code of Criminal
Procedure. As such, it is necessary to evaluate his arguments further.

In this case it is necessary to define what constitutes a final conviction. This
was done by the US Supreme Court in Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878,
92 L.Ed.2d 199 (1986) when they stated, “By final we mean where the judgment
of conviction was rendered, the availability of appeal exhausted, and the time for
petition for certiorari had elapsed.” The fact that a conviction is not considered
final until all appeals have been resolved is reflected in article 44.04 (c) of the
Texas Code of Criminal Procedure where it states, “The court may impose
reasonable conditions on bail pending the finality of his conviction.” As such, John
Butler’s ineffective assistance as appellate counsel occurred before the conviction
became final, and the conviction became final as a direct result of his inaction.

It is also important to determine whether a conviction can be deemed valid
if it became final without being subjected to direct appeal as a result of the
ineffective assistance of appellate counsel. The answer is no. The following is an
excerpt from the summary of Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83
L.Ed.2d 821 (1985).

After respondent was convicted of a drug offense in a Kentucky state
court, his retained counsel filed a timely notice of appeal to the Kentucky
Court of Appeals. But because counsel failed to file the statement of appeal
required by a Kentucky Rule of Appellate Procedure when he filed his brief
and record on appeal, the Court of Appeals dismissed the appeal and later

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denied a motion for reconsideration. The Kentucky Supreme Court
affirmed, and the trial court denied a motion to vacate the conviction or
grant a belated appeal. The respondent then sought habeas corpus relief in
Federal District Court, challenging the dismissal of his appeal on the ground
that it deprived him of the right to effective assistance of counsel on appeal
guaranteed by the Due Process Clause of the Fourteenth Amendment. The
District Court granted a conditional writ of habeas corpus, ordering
respondent's release unless the Commonwealth either reinstated his
appeal or retried him. The United States Court of Appeals affirmed.

Held: The Due Process Clause of the Fourteenth Amendment
guarantees a criminal defendant the effective assistance of counsel on his
first appeal as of right. Pp. 391-405.

(a) Nominal representation on an appeal as of right—like nominal
representation at trial—does not suffice to render the proceedings
constitutionally adequate; a party whose counsel is unable to provide
effective representation is in no better position than one who has no
counsel at all. A first appeal as of right therefore is not adjudicated in
accord with due process of law if the appellant does not have the effective
assistance of an attorney. The promise of Douglas v. California, 372 U.S.
353, 83 S.Ct. 814, 9 L.Ed.2d 811, that a criminal defendant has a right to
counsel on his first appeal as of right—like the promise of Gideon v.
Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, that a criminal
defendant has a right to counsel at trial—would be a futile gesture unless it
comprehended the right to effective assistance of counsel. Pp. 391-400.

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 (b) When a State opts to act in a field where its action has significant
discretionary elements, such as where it establishes a system of appeals as
of right although not required to do so, it must nonetheless act in accord
with the dictates of the Constitution, and, in particular, in accord with the
Due Process Clause. P. 400-401.

The situation outlined in Evitts v. Lucey, Id., is very similar to the one which
is the subject of this writ of habeas corpus. In both instances an individual was
deprived of his right to due process as a direct result of his attorney failing to file
the proper paperwork in time. The only two courses of action deemed acceptable
by the US Supreme Court in a situation like this are to reinstate an appeal (which
in Texas can be done through the granting of an out of time appeal), or overturn
the conviction and retry the defendant. Evitts v. Lucey, Id. Either form of relief is
acceptable to Appellant.

Appellant would draw the Court’s attention to the final paragraph of page
10 of the Appellee’s brief. In this paragraph the Appellee lists what he would
consider to be challenges to the legal validity of a conviction. In this list he
includes “ineffective assistance of counsel at trial” and cites Ex parte Enriquez,
227 S.W. 3d 779 (Tex. App. – El Paso 2005, pet. ref’d) as the authority for his
statement. Having read Ex parte Enriquez, Id., Appellant was unable to find any
reference in the Court’s opinion that indicated the Court made any rulings
regarding “ineffective assistance of counsel at trial.” More importantly, the case
does not in any way restrict ineffective assistance of counsel claims under art.
11.072 to only those involving trial counsel. As was made clear in Evitts v. Lucey,

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infra., the right to effective assistance of counsel includes both trial and appellate
counsel.

Having established that Appellant is indeed challenging his conviction
through this writ, he can now address the question of whether or not relief in the
form of an out of time appeal is authorized under art. 11.072 of the Texas Code of
Criminal Procedure. As was pointed out previously, Appellee offers no authority
that expressly prohibits relief in the form of an out of time appeal under art.
11.072. However, there are numerous cases in which out of time appeals have
been granted. In Taiwo v. State, No. 01-07-00487-CR (Tex. App. – Houston 2010,
not published), the Court of Appeals addresses an out of time appeal that was
granted by a trial court in response to an art. 11.072 writ of habeas corpus. In Ex
parte Parodi, No. PD-1740-11 (Tex. Crim. App. 2012, not published), the Court of
Criminal Appeals recognized that the appropriate remedy to correct a due process
violation that leads to the deprivation of a defendant’s right to attack his
conviction is to file a writ of habeas corpus under art. 11.072 seeking an out of
time appeal. The Court has also remanded cases back to trial courts when the trial
courts have overturned convictions challenged under art. 11.072 when the
situation could have been remedied by granting an out of time appeal. In State v.
Burnett, No. 05-13-00247-CR (Tex. App. - Dallas 2013, not published), the State of
Texas appealed a trial court’s ruling to overturn Ross Martin Burnett’s judgment
of conviction for consumption of alcohol by a minor. In their opinion, the Fifth
District Court of Appeals reversed the lower court’s ruling, stating that the lower
court granted the appellee more relief than was necessary to preserve his rites
since an out of time appeal would have been sufficient to remedy the situation.

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 Appellant would show that the Third Court of Appeals in Austin has
dictated that the appropriate relief in situations like the one at hand is an out of
time appeal. The following excerpt is from Cheek v. State, No. 03-08-00540-CR
(Tex. App. –Austin 2008, not published):

Christopher Cheek seeks to appeal his conviction for driving while license
suspended. Sentence was suspended on June 10, 2008, but the notice of
appeal was not filed until August 13, 2008. See Tex. R. App. P. 26.2(a)(1). In
the notice of appeal, Cheek's counsel acknowledges that the notice was not
timely, but urges that "[t]he plan was to file a notice, but trial counsel
became very sick and pre-occupied" with other matters.

When a notice of appeal is untimely, we lack jurisdiction to dispose of the
purported appeal in any manner other than by dismissing it for want of
jurisdiction. See Slaton v. State, 981 S.W.2d 208 (Tex. Crim. App. 1998);
Olivo v. State, 918 S.W.2d 519, 522-23 (Tex. Crim. App. 1996). 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. See Tex. Code
Crim. Proc. Ann. art. 11.072 (West 2005).

The circumstances of Cheek v. State, Id., are almost identical to the ones that are
the subject of this writ.

The Third Court of Appeals ruling in Cheek, Id. is also consistent with the
Court of Criminal Appeals ruling in Ex Parte Villanueva, 252 S.W.3d 391 (Tex. Crim.
App 2008). In Villanueva, Id, the Court of Criminal Appeals stated, “By enacting
Article 11.072, it is clear that the Legislature intended Article 11.072 to provide
the exclusive means by which the district courts may exercise their original
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habeas jurisdiction under Article V, Section 8 of the Texas Constitution in cases
involving an individual who is either serving a term of community supervision or
who has completed a term of community supervision.” To hold that the issue
presented through this writ must be pursued under any article other that 11.072
of the Texas Code of Criminal Procedure would contradict Villanueva, Id. Also,
given the Court of Criminal Appeals ruling in Villanueva, Id., to hold that Appellant
is not entitled to relief under article 11.072 would contradict Evitts v. Lucey, infra.

Appellant also requests that the Court not remand this case back to the
Trial Court for additional findings of fact and conclusions of law. All of the facts
pertinent to this case have already been determined by the Trial Court in
response to Ex parte McCarty, infra., and are contained in the cumulative
appendices of Appellant’s and Appellee’s briefs. Given that Appellant’s
community supervision will be suspended upon the undertaking of an out of time
appeal, additional delays will cause unnecessary confusion and uncertainty for
Appellant, the community supervision officers overseeing his case, and the
treatment providers overseeing his counseling.

In conclusion, Appellant has shown that his application for a writ of habeas
corpus pursuant to article 11.072 of the Texas Code of Criminal Procedure does
constitute a challenge to the legal validity of his conviction on count three, that
relief in the form of an out of time appeal is authorized under art. 11.072, and
that he is entitled to relief.

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 PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays that he
be granted an out-of-time appeal in the above entitled and numbered cause, or
that his conviction be reversed and the case be remanded to the Trial Court for a
new trial.

Respectfully Submitted,

/s/ Kelly James McCarty

Pro Se Appellant
114 Oakleaf Dr.
San Antonio TX 78209
Tel: (210) 275-1875

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 CERTIFICATE OF SERVICE

I certify that on February 3, 2015, a copy of Appellant’s Brief was served on
Appellee, The State of Texas, through counsel of record, as listed below, via
eServe.

Gary W. Bunyard
Assistant District Attorney
P. O. Box 725
Llano, Texas 78643
Tel. (325) 247-5755
Fax (325) 247-5274

Signed Electronically,

/s/ Kelly James McCarty

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 CERTIFICATE OF COMPLIANCE

I certify that on February 3, 2015, the length of this document is 2,249
words excluding the words contained in the following: caption, identity of parties
and counsel, statement regarding oral argument, table of contents, index of
authorities, statement of the case, statement of issues presented, statement of
jurisdiction, statement of procedural history, signature, proof of service,
certification, certificate of compliance, and appendix.

Signed Electronically,

/s/ Kelly James McCarty

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APPENDIX I

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