Ex Parte Kelly James McCarty ( 2015 )

ACCEPTED
03-15-00213-CR
5122488
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/1/2015 2:59:44 PM
JEFFREY D. KYLE
CLERK
CASE NO. 03-15-00213-CR
EX PARTE § IN THE COURT OF APPEALS
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
VS. § THIRD SUPREME DISTRICT
5/1/2015 2:59:44 PM
JEFFREY D. KYLE
KELLY JAMES McCARTY § SITTING IN AUSTIN Clerk
MOTION TO DISMISS AS MOOT
This motion is filed by the State of Texas, Appellee, and in support would show
as follows:
I.
BACKGROUND
Appellant was Indicted for three counts of the offense of Indecency with a Child
by Contact. Appellant elected to have a trial to a jury and was convicted in Count One
and Count Three on March 07, 2009. After being found Guilty of the underlying
offenses Appellant elected for the Jury to assess punishment. After having received
evidence and argument of counsel thereon the jury assessed punishment in Count One
at 5 years imprisonment and a fine of $10,000. The jury further assessed punishment
in Count Three at 10 years imprisonment and a fine of $10,000. The jury
recommended that both the incarceration and the fine in Count Three be probated. The
trial court ordered that the sentence in Count Three not begin until the sentence in
Count One ceases to operate. An appeal of these convictions and sentences was not
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timely perfected. After considering an Application for Writ of Habeas Corpus under
Art. 11.07 the Court of Criminal Appeals granted an out-of-time appeal in Count One
but dismissed the claim in Count Three pursuant to Art. 11.07 Sec. 3(a). Upon his
release from prison on parole for Count One, Appellant filed his pro se application for
writ of habeas corpus under art. 11.072 Code of Criminal Procedure in which the only
relief being sought by Appellant therein was an out-of-time appeal of his conviction
in Count Three. The trial court denied the relief requested and Appellant filed his
notice of appeal which was docketed in this Court as 03-14-575-CR. Prior to a final
ruling in case number 03-14-575-CR, Appellant filed an application for writ of habeas
corpus under art. 11.08 Code of Criminal Procedure in which the only relief being
sought by Appellant therein was an out-of-time appeal of his conviction in Count
Three. The trial court denied the relief requested and Appellant filed his notice of
appeal which was docketed in this Court as 03-15-213-CR, the case now pending
herein.
II.
PRESENT COMPLAINT
As described in the Notice of Appeal filed by Appellant Pro Se on
September 4,2014, the trial court denied Appellant's request for an out-of-time appeal
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of his conviction in Count 3 of Cause Number 30842. On April 28, 2015, this Court
granted in Case No. 03-14-575-CR Appellant's request for an out-of-time appeal of
his conviction in Count 3 of Cause Number 30842. The State of Texas will not be
requesting rehearing, petition for discretionary review, or other such action the result
of which would be to delay the out-of-time appeal granted in Case No. 03-14-575-CR.
In as much as the relief that Appellant seeks in this cause has been granted in Case No.
03-14-575-CR, this pending case is now MOOT and should be dismissed.
PRAYER
WHEREFORE, the State prays the Court grant this motion and dismiss this
cause as being MOOT.
Respectfully submitted.
OFFICE OF DISTRICT ATTORNEY
3 3 ^ and 424^ JUDICIAL 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
Assistant District Attorney
State Bar No. 03353500
ATTORNEY FOR APPELLEE
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CERTIFICATE OF COMPLIANCE
This is to certify that the pertinent portion of this brief contains 459 words
printed in Times New Roman 14 font according to the WordPerfect™ X7 word count
tool.
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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 EServe on the 1st day of May
2015, to Kelly James McCarty, Appellant Pro Se.
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