McCarty, Kelly James ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-74,352-01

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EX PARTE KELLY JAMES MCCARTY, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 30842 IN THE 33RD DISTRICT COURT FROM BURNET COUNTY

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   Per curiam.

O R D E R  

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of two counts of indecency with a child. In Count I, he was sentenced to five years' imprisonment, and in Count III, he was placed on community supervision for ten years. His appeal was dismissed for lack of jurisdiction. McCarty v. State, No. 03-09-00378-CR (Tex. App.-Austin 2009, no pet.).

Applicant contends that he was denied his right to an appeal. On September 15, 2010, we remanded this application and directed the trial court to order trial counsel, Richard Davis, to respond to Applicant's claim. We also directed the trial court to make findings of fact "as to whether Applicant expressed a desire to appeal his conviction and sentence in Count I" and, if so, "whether trial counsel failed to file a timely notice of appeal." On remand, the trial court recommended that we grant Applicant an out-of-time appeal. The trial court, however, did not make the findings we requested. Nor did Davis's affidavit respond to Applicant's claim. Accordingly, the trial court shall order Davis to file a second response to Applicant's claim. The trial court shall also order John Butler to respond to Applicant's claim. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.

Applicant appears to be represented by counsel. If he is not and the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent him at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall make findings of fact as to whether Applicant expressed a desire to appeal his conviction and sentence in Count I. ⁽¹⁾ If so, the trial court shall make findings of fact as why a timely notice of appeal was not filed. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.

This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: February 16, 2011

Do not publish

1. Because Applicant's conviction in Count III is not final, we do not have jurisdiction to determine whether he was denied his right to an appeal. Tex. Code Crim. Proc. art. 11.07, § 3(a); Ex parte Twyman, 716 S.W.2d 951, 952 (Tex. Crim. App. 1986).