Ex Parte Kelly James McCarty

Opinion

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

1 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

2 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

3 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

4 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

5 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.

6 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

7 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

8 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

9 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.

10 (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,

11 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.

12 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 13 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.

14 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

15 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

16 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

17 APPENDIX I

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