Ex Parte Kelly James McCarty ( 2015 )


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  •       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
    2
    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. 3 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
    4
    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. 5 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.
    6
    (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.
    7
    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
    8