McCarty, Ex Parte Kelly James ( 2011 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,607
EX PARTE KELLY JAMES MCCARTY, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 30842 IN THE 33RD JUDICIAL DISTRICT COURT
FROM BURNET COUNTY
Per curiam.
OPINION
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 July 22, 2009, no pet.).
Applicant contends that he was denied his right to appeal. We remanded this application to
the trial court for findings of fact and conclusions of law. The trial court has determined that
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appellate counsel failed to timely file a notice of appeal. We find, therefore, that Applicant is entitled
to the opportunity to file an out-of-time appeal of the judgment of conviction in Count I in cause
number 30842 from the 33rd Judicial District Court of Burnet County. Applicant is ordered returned
to that time at which he may give a written notice of appeal so that he may then, with the aid of
counsel, obtain a meaningful appeal. Within ten days of the issuance of this opinion, the trial court
shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented
by counsel, the trial court shall immediately appoint an attorney to represent Applicant on direct
appeal. All time limits shall be calculated as if the sentence had been imposed on the date on which
the mandate of this Court issues. We hold that, should Applicant desire to prosecute an appeal, he
must take affirmative steps to file a written notice of appeal in the trial court within 30 days after the
mandate of this Court issues.
Applicant’s out-of-time appeal claim as to Count III is dismissed. TEX . CODE CRIM . PROC.
art. 11.07, § 3(a); Ex parte Twyman, 716 S.W.2d 951, 952 (Tex. Crim. App. 1986).
Delivered: August 24, 2011
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