                                                                        ACCEPTED
                                                                   03-14-00575-CR
                                                                          3802072
                                                         THIRD COURT OF APPEALS
          NO. 03-14-00575-CR                                        AUSTIN, TEXAS
                                                              1/16/2015 3:09:26 PM
                                                                 JEFFREY D. KYLE
                                                                            CLERK
     IN THE COURT OF APPEALS

OF THE THIRD DISTRICT OF TEXAS                     FILED IN
                                            3rd COURT OF APPEALS
                                                AUSTIN, TEXAS
                                            1/16/2015 3:09:26 PM
                                              JEFFREY D. KYLE
      KELLY JAMES McCARTY,                          Clerk


                               Appellant

                    V.


        THE STATE OF TEXAS
                        Appellee

   Appeal in Cause No. 30842B in the
Judicial District Court of Burnet County, Texas



         Brief For       Appellee



                  OFFICE OF DISTRICT ATTORNEY
                  3 3 ^ and 424* JUDICL\ 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

                  By: Gary W. Bunyard
                     Assistant District Attorney
                     State Bar No. 03353500
                     ATTORNEY FOR APPELLEE

            January 16, 2015

         Oral Argument Waived
                              Identity Of The Parties


Trial Court - Plea in 2008 and Retrial in 2009

      Honorable Gilford L. Jones III (Retired)
      33'"* Judicial District
      Burnet County Courthouse Annex (North)
      1701 East Polk St., Suite 74
      Burnet, TX 78611

Trial Court - Habeas Corpus Application

      Honorable Daniel H. Mills (former)
      424* Judicial District
      Burnet County Courthouse Annex (North)
      1701 East Polk St., Suite 74
      Burnet, TX 78611




State/Appellee

      Sam Oatman                               (Trial Counsel)
      District Attorney (Retired)
      P. O. Box 725
      Llano, Texas 78643
      (325) 247-5755
      State Bar No. 15161100

      Cheryl Nelson                            (Trial Counsel)
      Assistant District Attorney (former)
      P. O. Box 725
      Llano, Texas 78643
      (325) 247-5755
      State Bar No. 06839380


                                          ii
      Gary Prust                                (Trial Counsel)
      Assistant District Attorney (former)
      P. O. Box 725
      Llano, Texas 78643
      (325) 247-5755
      State Bar No. 24056166


      Gary W. Bunyard                           (Appellate Counsel - Count One,
      Assistant District Attorney                Habeas Corpus Counsel, Appellate
      P. O. Box 725                              Counsel - Count Three [present])
      Llano, Texas 78643
      (325) 247-5755
      State Bar No. 03353500
      g.bunyard@co.llano.tx.us




Appellant

     Richard Davis                              (Trial Coimsel)
     Public Defender (former)
     P.O. Box 398
     Burnet, TX 78611
     State Bar No. 05537100

     Travis Williams                            (Trial Counsel)
     Assistant Public Defender (former)
     P.O. Box 398
     Burnet, TX 78611
     State Bar No. 00797743

     Revis Kanak                                (Trial Counsel)
     Assistant Public Defender (former)
     P.O. Box 398
     Burnet, TX 78611
     State Bar No. 11091500

                                          iii
Evan Stubbs                           (Appellate Counsel - Count One)
Attorney at Law (currently 424* Judicial District Judge)
202 North Porter Street
Lampasas, TX 76550
State Bar No. 24039198


Kelly James McCarty                   (Appellant Pro Se - Habeas Corpus and
114 OaMeaf Dr.                         Appeal - Count Three [present])
San Antonio, TX 78209
(210) 275-1875
kjmcc09@gmail.com




                                 iv
                               Table Of Contents

                                                                  Page

Index of Authorities                                                     vi

Statement of the Case                                                    2

Statement on Oral Argument                                               4

Response to Issues Presented                                             5

Statement of the Facts                                                   6

Summary of the Argument - Response to Issue No. 1                        8
                 The trial court properly denied the relief
                 requested in Appellant's Application for Writ
                 of Habeas Corpus filed under Art. 11.072 of
                 the Texas Code of Criminal Procedure because
                 the relief requested is not authorized by Art.
                  11.072.

Argument on Response to Issue No. 1                                      9

Prayer for Relief                                                        12

Certificate of Word Count                                                13

Certificate of Service                                                   13

Appendix I (Indictment)                                                  14

Appendix II (Judgment Deferring Adjudication of Guilt)                   18

Appendix III (Order setting aside the Judgment Deferring
     Adjudication of Guilt)                                              21


                                        V
Appendix IV (Judgments on Count One, Count Two,
     and Count Three)                                            23

Appendix V (Order Dismissing Appeal)                             29

Appendix V I (Order Granting Out-Of-Time Appeal for Count One)   32

Appendix VII (Memorandum Opinion Affirming Conviction)           35

Appendix VIII (Terms and Conditions of Probation)                49

Appendix IX (Application for Writ of Habeas Corpus under
     Art. 11.08                                                  56




                                       vl
                            Index Of          Authorities


Case Law                                                    Page

Ex parte AIL 368 S.W.3d 827 (Tex. App. -
      Austin 2012, pet. refd)                                         10

Ex parte Avers. 921 S.W.2d 438, 440 (Tex. App.-Houston
      [IstDist] 1996, no pet.)                                         9

Ex parte Balderrama. 214 S.W.3d 530 (Tex. App. -
      Austin 2006, pet. refd)                                      10, 11

Ex parte Enriquez. 227 S.W.3d 779 (Tex. App. -
      El Paso 2005, pet. refd)                                        10

Ex parte Mann. 34 S.W.3d 716, 718 (Tex. App.--

      Fort Worth 2000, no pet.)                                        9

Ex parte McPherson. 32 S. W.3d 860 (Tex. Crim. App. 2000)             11

Ex parte Phillips. 02-08-259-CR unpublished opinion

      (Tex. App. - Fort Worth 2008, no pet.)                          11

Guzman v. State. 955 S.W.2d 85 (Tex. Crim. App. 1997)                  9

Morin v. State. 13-05-00181-CR unpublished opinion
      (Tex. App. - Corpus Christi 2006, no pet.)                      10


Constitutions

None cited


                                        vii
Statutes/Rules

TEX. R. APP. PROC. Rule 38.1(d)

TEX. CODE CRJM. PROC. Art. 11.072 Sec. 1

TEX. CODE CRJM. PROC. Art. 11.072 Sec. 2 (b)

TEX. CODE CRIM. PROC. Art. 11.08




                                   viii
                                 NO. 03-14-00575-CR

                                        IN THE

                                COURT OF APPEALS

                       OF THE THIRD DISTRICT OF TEXAS




                             KELLY JAMES McCARTY,

                                                       Appellant

                                            V.


                               THE STATE OF TEXAS
                                               Appellee


                              Appeal in Cause No. 30842B
                          in the 33*^^ Judicial District Court of
                                  Burnet County, Texas




                                Brief For        Appellee


To The Honorable Justices Of Said Court:

      Now comes the State of Texas, hereiaafter called Appellee, and submits this

brief pursuant to the provisions of the Texas Rules of Appellate Procedure in support

of the State's request affirm the judgment of the trial court.


                                            1
                        statement         Of The Case

      Appellant has not adequately described the Statement of the Case under the

provisions of Rule 38.1(d) TEX. R. APP. PROC.

      Applicant was indicted on September 9, 2004, for three counts of Indecency

With a Child by Contact, each count involving separate children. APPENDIX I .       A

trial by jury was conducted in February 2006, however, a mistrial was declared by the

trial court on the grounds that the jury was unable to come to a unanimous verdict.

On February 22, 2008, pursuant to a plea bargain agreement, the trial court accepted

Applicant's plea of Guilty to a single count of Injury to a Child as a lesser-included

offense.   The trial court deferred adjudication of guilt and placed Applicant on

Community Supervision for a period of five years. APPENDIX II.         On February 9,

2009, the trial court granted Applicant's motion to withdraw his plea of Guilty.

APPENDIX III.

      A jury trial was then conducted and on March 7, 2009, the jury returned a

verdict of Guilty as to Count One and Count Three and a verdict of Not Guilty as to

Count Two. The punishment was assessed by the jury at five years imprisonment in

TDCJ, which was not recommended to be probated, on Count One and ten years

imprisonment in TDCJ, which was recommended to be probated, on Count Three.



                                          2
The trial court ordered the term of community supervision for Count Three to begin

when the sentence imposed in Count One ceased to operate.           APPENDIX IV.

Although Applicant's counsel filed a Notice of Appeal, such filing was untimely.

APPENDIX V.

         Applicant filed an Application for Writ of Habeas Corpus under art. 11.07 of

the Code of Criminal Procedure. On August 26,2011, the Court of Criminal Appeals

granted Applicant an out-of-time appeal as to Count One but dismissed his claim as

to Count Three under art. 11.07 Sec. 3(a). APPENDIX VI.

         On appeal of Count One, the Court of Appeals affirmed the conviction and

sentence on April 15, 2014. APPENDIX VII. Upon his release from incarceration.

Appellant, acting pro se, then filed this Application for Writ of Habeas Corpus under

art. 11.072 of the Code of Criminal Procedure seeking an out-of-time appeal of Count

Three.     CR Vol. I Pages 3 - 6.      The trial court denied the relief requested by

Appellant. CR Vol. 1 Page 12. This appeal was then initiated. CR Vol 1 Pages 11,

13.




                                           3
                        statement       on Oral      Argument

      The undersigned waives Oral Argument. The undersigned does not believe that

Oral Argument will be beneficial for this case for the reason that the issues are straight

forward and lack any novel or complex nuances.             Appellant has waived Oral

Argument. Should the Court believe that Oral Argument will assist the Court in any

way, the undersigned will gladly accommodate the Court.




                                            4
                    Response     To Issues      Presented

Response To Issue One: The trial court properly denied the relief requested in
                       Appellant's Application for Writ of Habeas Corpus filed
                       under Art. 11.072 of the Texas Code of Criminal Procedure
                       because the relief requested is not authorized by Art.
                       11.072.




                                       5
                        statement         Of The Facts
      Appellant has not fully described the facts of this case.

      In the case that is the focus of this appeal. Appellant was a camp counselor in

charge of 10 year old boys. RR Vol. 4 Pages 93 - 94. The boys and Appellant lived

together during the camp period in a dormitory. RR Vol. 4 Page 98. As described

by victim Burnet County Buck 2004-25, Appellant taught the boys to pour Gold Bond

powder on the boys' penises and then rub the penises with water to create a stinging

sensation. RR Vol. 4 Pages 100-101. Then Appellant touched the penis of Burnet

County Buck 2004-25 telling him that he should get used to pulling the foreskin back

because girls will get freaked out seeing an uncircumcised penis. Appellant also told

Burnet County Buck 2004-25 that he needed to get a "boner" to help pull it back. RR

Vol. 4 Pages 104- 105. This touching of the penis of Burnet County Buck 2004-25

happened after Appellant showed the boys the "Gold Bond" trick. RR Vol. 4 Pages

109 - 110. Appellant also told the boys in the dorm that they needed to get used to

getting naked around boys because they would have to do it in the locker room at

school. RR Vol. 4 Pages 107,110. Appellant told the boys i f they get naked they can

listen to their favorite songs. RR Vol. 4 Pages 111, 116.




                                           6
      Appellant was convicted by the jury for this conduct and on March 7,2009, the

jury assessed punishment at 10 years imprisonment and a fine of $10,000 with a

recommendation that both the find and the imprisonment be probated. APPENDIX

IV.   The trial court imposed its standard terms and conditions of probation for sex

offenders. APPENDIX VIII.

      As described by Appellant, the original Notice of Appeal was not timely filed.

APPENDIX V.       As relief granted in Appellant's Application for Writ of Habeas

Corpus filed under art. 11.07 of the Code of Criminal Procedure, the Court of Criminal

Appeals permitted Appellant to pursue an appeal of his conviction in Count One but

dismissed the claim as to Count Three because of the limitations under art. 11.07

Sec. 3(a).   APPENDIX VI. No further action was taken by Appellant as to the

conviction under Count Three until Appellant was released from prison on his sentence

under Count One and the probation imposed under Count Three began, at which time

Appellant filed the instant Application for Writ of Habeas Corpus under art. 11.072

of the Code of Criminal Procedure in which the remedy Appellant seeks is an out-of-

time appeal for Count Three. CR Vol. 1 Pages 3 - 6.




                                          7
                      Summary Of The Argument on
                        Response to issue No. i

      (1)    The trial court properly denied the relief requested in

             Appellant's Application for W r i t of Habeas Corpus filed

             under Art. 11.072 of the Texas Code of Criminal Procedure

             because the relief requested is not authorized by Art. 11.072.




      Appellant complains that his right to effective assistance of counsel under the

Fourteenth Amendment was violated and that the trial court's denial of the relief

requested in his art. 11.072 writ application was a denial of Appellant's right to due

process. However, the relief requested by Appellant in his art. 11.072 writ application

is for an out-of-time appeal. This is not a relief that is authorized under art. 11.072

of the Code of Criminal Procedure.




                                          8
                 Argument        On Response         to issue No. i

       A trial court's decision to grant or deny relief on a writ of habeas corpus under

an abuse of discretion standard of review. Ex parte Mann. 34 S. W.3d 716, 718 (Tex.

App.-Fort Worth 2000, no pet.); Ex parte Avers. 921 S.W.2d 438, 440 (Tex.

App.-Houston [1st Dist.] 1996, no pet.).

       As a general rule, the appellate courts, should afford ahnost total deference to

a trial court's determination of the historical facts that the record supports especially

when the trial court's fact findings are based on an evaluation of credibility and

demeanor. The appellate courts should afford the same amount of deference to trial

courts' rulings on "application of law to fact questions," also known as "mixed

questions of law and fact," i f the resolution of those ultimate questions turns on an

evaluation of credibility and demeanor. The appellate courts may review de novo

"mixed questions of law and fact" not falling within this category. Guzman v. State.

955 S.W.2d 85 (Tex. Crim. App. 1997).

      In habeas corpus proceedings, virtually every fact finding involves a credibility

determination and the fact finder is the exclusive judge of the credibility of the

witnesses. In a Tex. Code Crim. Proc. Ann. art. 11.072 habeas case, the trial court is

the sole finder of fact. There is less leeway in an article 11.072 context to disregard the

findings of a trial court" than there is in a Tex. Code Crim. Proc. Ann. art. 11.07

                                            9
habeas case, in which the Court of Criminal Appeals of Texas is the ultimate fact

finder. Thus, the familiar Guzman standard of review controls in such cases. Under

this standard, the appellate court affords ahnost total deference to a trial court's factual

findings when supported by the record, especially when those findings are based upon

credibility and demeanor. Ex parte Ali. 368 S.W.3d 827 (Tex. App. - Austin 2012,

pet   refd).

       Art. 11.072 establishes the procedures for an application for writ of habeas

corpus in which the applicant seeks relief from an order or judgment of conviction

ordering community supervision.       TEX. CODE CRIM. PROC. Art. 11.072 Sec. 1.

The two forms of relief authorized under Art. 11.072 are that the application must

either challenge the legal validity of the conviction or order in which the community

supervision is imposed or the legal validity of the conditions of the community

supervision. TEX. CODE CRIM. PROC. Art. 11.072 Sec. 2 (b).

       Challenges to the legal validity of the conviction or order in which the

community supervision is imposed would include claims of actual innocence (Morin

V. State. 13-05-00181-CR unpublished opinion [Tex. App. - Corpus Christi 2006, no

pet. ]), insufficiency of the evidence (Ex parte Balderrama. 214 S.W.3d 530 [Tex.

App. - Austin 2006, pet. refd]), ineffective assistance of counsel at trial (Ex parte

Enriquez. 227 S.W.3d 779 [Tex. App. - El Paso 2005, pet. refd]), and involuntary

                                            10
plea (Ex parte Phillips. 02-08-259-CR unpublished opinion [Tex. App. - Fort Worth

2008, no pet.]).   In comparison, the relief being sought by Appellant 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 in filing the Notice of Appeal

untimely and due to his second appellate counsel failing to pursue an appeal of this

Count Three conviction by way of habeas corpus once the Court of Criminal Appeals

dismissed his claim on Count Three in the art. 11.07 habeas corpus order.

      Art. 11.08 has been held to be the vehicle by which persons who are subject to

community supervision may seek relief which is not otherwise available under Art.

11.072. TEX. CODE CRIM. PROC. Art. 11.08; see Ex parte McPherson. 32 S.W.3d

860, 861 (Tex. Crim. App. 2000)(Because Applicant's initial application seeking an

out-of-time appeal did not pertain to the validity of the prosecution or the judgment

of guilt, it was not a challenge to the conviction....); Ex parte Balderrama, 214 S.W.3d

530 [Tex. App. - Austin 2006, pet. refd]).     In fact Appellant has already determined

this distinction and has filed an Application for Writ of Habeas Corpus under Art.

11.08 with the clerk of the trial court which has been docketed as 30842C and is

currently pending. APPENDIXIX.




                                          11
      For these reasons the relief requested by Appellant in his Issue No. I must be

denied and the order of the trial court denying the relief requested be affirmed.




                              PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Appellee prays the Court deny

Appellant's appeal and affirm the judgment of the trial court.

                                        Respectfully submitted,

                                        OFFICE OF DISTRICT ATTORNEY
                                        3 3 ^ and 424* JUDICL\ DISTRICTS
                                        Wiley B. McAfee, District Attorney
                                        P. O. Box 725
                                        Llano, Texas 78643
                                        Telephone         Telecopier
                                        (325) 247-5755    (325) 247-5274

                                        By.
                                           .^gafy'w.iimyard^
                                            Assistant District Attorney
                                            State Bar No. 03353500
                                            g.bunyard@co.llano.tx.us
                                            ATTORNEY FOR APPELLEE




                                          12
                       CERTIFICATE OF WORD COUNT

       This is to certify that the pertinent portion of this brief contains 1,379 words
printed in Times New Roman 14 font according to the WordPerfect™ X7 word comit
tool.




                           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 standard mail on the 16th day
of January 2014, to Kelly James McCarty, Appellant Pro Se, by email and by EServe.

                                                          ^ ^ ^ ^ ^
                                                Assistant District Attorney




                                           13
APPENDIX I
NO.                    THF. S T A T E OF TEXAS VS. KELLY JAMES MCCARTY

INDICTMENT:            INDECENCY WITH A CHILD BY CONTACT - 3 Comits

DEGREE OF FELONY SECOND DEGREE                    OFFENSE CODE 36010001 BOND 7 i y ^ < ^               ^

m THE 33^^ JUDICIAL DISTRICT COURT OF BURNET COUNTY. TEXAS                                      ^«rffi^^



       IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS:

COUNT ONE: INDECENCY WITH A CHILD BY CONTACT

       THE GRAND JURY, for the County ofBURNET. State of Texas, duly organized,

impaneled and sworn as such at the April Term. A.D. 2004. of the 33"* Judicial District Court for

said County, upon their oaths present in and to said court at said term that KELLY JAMES

MCCARTY, hereinafter referred to as Defendant, on or about the 28^ day of July. 2004. and

before the presentment of this Indictment, in the County ofBURNET. and the State of Texas, did

then and there, with the intent to arouse or gratify the sexual desire of the said defendant,

intentionally or knowingly engage m sexual contact with BURNET CO, BUCK 2004-23 by

touching the genitals ofBURNET CO. BUCK 2004-23, a child younger than 17 years of age and

not the spouse of the defendant,




                                                1 of 3
COUNT TWO: INDECENCY WITH A CHILD

       And the Grand Jurors aforesaid, upon their oaths aforesaid, do further say, charge and

present in and to said Court at said Term that on or about the 28^ day of July. 2004. and anterior

to the presentment of this Indictment, in the said County ofBURNET. State of Texas, the said

KELLY JAMES MCCARTY, hereinafter referred to as defendant, did then and there, with the

intent to arouse or gratify the sexual desire of the said defendant, intentionally or knowingly

engage in sexual contact with BURNET CO. BUCK 2004-24 by touching the genitals of

BURNET CO. BUCK 2004-24, a child younger than 17 years of age and not the spouse of the

defendant,




                                               2 of 3
COUNT THREE: INDECENCY WITH A CHILD

       And the Grand Jurors aforesaid, upon their oaths aforesaid, do fiirther say, charge and

present in and to said Court at said Term that on or about the 28^^ day of July. 2004. and anterior

to the presentment of this Indictment, in the said County of BURNET. State of Texas, the said

KELLY JAMES MCCARTY, hereinafter referred to as defendant, did then and there, with the

intent to arouse or gratify the sexual desire of the said defendant, intentionally or knowingly

engage in sexual contact with BURNET CO. BUCK 2004-25 by touching the genitals of

BURNET CO. BUCK 2004-25, a child younger than 17 years of age and not the spouse of the

defendant.




AGAINST THE PEACE AND DIGNITY OF THE STATE.




                                              FOREMAN OF THE GRAND JURY



                                               3 of 3
APPENDIX II
                                        CASE NO. 30,842                                COUNT Single
                                                 iNCmEOT NO./TRN: 000 9520 465

T H E STATE OF TEXAS                                                                  I N T H E 33RD DISTRICT

V.                                                                                    COURT

K E L L Y JAMES MCCARTY                                                               BURNET COUNTY, TEXAS

STATE ID No.: TX

                                 ORDER OF D E F E R R E D ADJUDICATION

Judge Presiding:      HON. GUILFORD L . JONES, HI                            Date Order Entered:    2/22/2008

Attorney for State:   CHERYL NELSON                                         Attorney for
                                                                            De£Bndant:
Offense:
INJURY TO A CHILD
                                                                         Statiut?forQffpiW-
INDICTMENT                                                               Sec. 22.04 Penal Code
DateofOfiFenae:
7/28/2004
pfigyg^l^f Offense:                                                      Plea to OfEen^^:                  Findings on Deadly Weapon:
3RD D E G R E E FELONY                                                   GUILTY                            N/A
Terms pfPtea Bargain:
FIVE (5) YEARS DEFERRED ADJUDICATION, $3,000 FINE, NO CONTACT WITH CHILDREN UNDER
17 YEARS OF AGE, NO CONTACT WITH VICTIMS OR THEIR FAMIUES, AND SEX OFFENDER
COUNSEUNG WITH A PROVIDER AND PROGRAM APPROVED BY DR. MATTHEW FERRERA.
Plea to 1»* Enhancement                                 Plea to Z"'^ Enhancement/Habitual
Paragraph:                          N/A                 Paragraph:                             N/A
Findings on 1** Enhancement                             Findings on 2""*
Paragraph:                        N/A                   Enhancement/Habittial Paragraph:       N/A
                                          ADJUDICATION OF GUILT DEFERRED;
                                DEFENDANT PLACED ON COMKfUNITY SUPERVISION.
                             P E R I O D O F O^^fUNI:TY SUPERVISION: F I V E (5) Y E A R S
Fine:                                             Esst
                                                  RggtitUtipn:        RgstjtfttiPn Payable to:
$3,000                                             $N/A               • VICTIM (see below) • A G E N C Y / A G E N T (see below)
Sex Offender Regiatration Requirements apply to the Defendant TEX. CODE CRIM. FROC. chapter 62
The age of the victim at thetimeof the offense was 11 years.
Time           N/A DAYS
Credited:      NOTES: N/A
                                                   lanto Indicatod above im iocoqporHtod into tlM
        Thia cause was calkd for trial in Burnet County, Texas. The State appeared by her District Attorney as named above.

IS Defendant appeared in person with Counsel.
01 Defendant knowingly, intelligently, and voluntarily waived the right to representation by counsel in writing in open court.
        Both parties announced ready for trial. Defendant waived the right of trial by jury and entered a plea as indicated
above. The Court admonished the Defendant as required by law. It appeared to the Court that Defendant was mentally
competent to stand trial, made the plea &eely and voluntarily, and was aware of the consequences of this plea. The Court
received the plea and entered it of record. Having heard the evidence submitted, the Court FENDS such evidence substantiates
Defendanlfs guilt. The Court FiNDB that, in this cause, it is in the best interest of society and Defendant to defer proceedings
without entering an adjudication of guilt and to place Defendant on community supervision.
         The Court Fnros the Presentence Investigation, if so ordered, was done according to the applicable provisions of TEX. CODE
CRM. PROC. art. 42.12 § 9.


                                      Otder_i4_Deferred_A4)(idieatiaa_050I06.doc
         The Covirt OsDEsa that Defendant is given credit noted above for thetimespent incarcerated. The Court ORDERS Defendant
to pay allfines,court costs, and restitution as indicated above.
         The Court ORDSHS that no judgment shall be entered at this time. The Court further ORDERS that Defendant be placed on
community supervision for the adjudged period so long as Defendant abides by and does not violate the terms and conditions of
community supervision. See TEX. CODE CRIM. PROC. art. 42.12 § 5(a}.
                               F^rtfogmft)re. thgfoltowingmmfiil fiTifaw or pyd^ra apply:



Signed and entered on

                                                            X
                                                            JUDGE PRESIDING




Clerk:




                                                                                               Right Thumbprint




                                                                                 Pare 2 of 2
APPENDIX HI
                                             Cause No. 30842


 STATE OF T E X A S                                                             IN T H E DISTRICT COURT OF



 V.                                                                                 Bumet COUNTY,       TEXAS

 K E L L Y JAMES M C C A R T Y                                                      33*^" JUDICIAL DISTRICT




                    ORDER SETTING ASIDE ORDER OF DEFERRED ADJUDICATION

         Came on to be considered on February 25,2008, Oral Motion to Set Aside Order of Deferred
Adjudication and Withdraw Plea of Guiltyfiledby Defendant, Kelly James McCarty
Appearances: State of Texas by her Assistant District Attorney Cheryl Nelson and Defendant McCarty
and his attorney Tim Inman.
         On February 22,2008 all parties were present in court and Defendant entered his plea of guilty to
the offense, which plea was accepted by the Court and he was placed on deferred adjudication probation.
All relevant papers were signed and the Community Supervision and Corrections Department (CSCD)
made contact with the Interstate Compact for Adult Probationers for permission to transfer the case to
Defendant's home state. He was instructed to remain in Texas until clearance was gained and he did so.
On Monday, February 25,2008 all parties again appeared in court.
         On February 25,2008 all parties were advised by CSCD that transfer was denied by the
Compact, whereupon Defendant, through his attorney, moved to set aside the Order of Deferred
Adjudication and to withdraw his plea of guilty. The Court granted the motion and from the bench
pronounced the granting of the motion and thereupon set aside the Order.
         Counsel were instructed to prepare an order to memorialize the action taken but the same was not
done. Therefore, this Order is entered to evidence such prior action.
         Richard Davis has since been appointed to represent the Defendant.
         The Court is of the opinion that the same should be Granted, accordingly, it is
ORDERED AND DECREED that the Order of Deferred Adjudication signed by the Court on February
22, 2008 was and hereby is SET ASIDE for all purposes and held for naught.



Signed on               ^    ,   20^^
                                                   GuirfordfL. Jones
                                                   Presiding Judge

AGREED AS T O SUBSTANCE AND FORM:




                                                   Richafd CJavis, (current) Atty. For Defendant

                                        C:\Oocuments and Settfngs\Gil\My Documents\BU30842McCarty_Order_vacate.doc



      FEB - 9 2009
APPENDIX IV
                                                                                                                        P5|
                                                  NO. 3 0 8 4 2             Couirr
                                                    INCIDENT No./TRN:

T H E STATB OP T E X A S                                      s            IN T H E 33"> D I S T R I C T         1
                                                              s                                                          r.3
V.                                                            s            COURT
                                                              s
KELLT JAMES MCCARTY                                           s            BURNET COUNTY,              TEXAdj
                                                              s
STATE ID No.: TX                                              a                                                          § 1

                                 JUDGMENT O F CONVICTION B Y J U R Y
Judge Presiding:      HoM. GUILFORD L . JONES, U I                Date Judgment        3/7/2009
                                                                  Entered:
Attorney for State:   CHERYL NELSON                               Attorney for        RICHARD DAVIS
                                                                  Defendant:
Offense for which Defendant Convicted:
INDECENCY WITH A CHILD BY CONTACT
Charging Instrument                                               statute for Offense:
INDICTMENT                                                        21.11 Penal Code
Da^ygfOffgn^e:
7/28/2004
Degree of Offense:                                 Ple^tpQff^n^e-.
2ND DEGREE FELONY                                  NOT GUILTY
Verdict of Jury:                                   Findings on Deadly Weapon:
GUILTY                                             N/A
Plea to i« Enhancement                      Plea to 2"d Enhancement/Habitual
Paragraph:                N/A               Paragraph:                            N/A
Findings on 1"* Enhancement                 Findings on 2^
Paragraph:                N/A               Enhancement/ Habitual
                                            Paragraph:                            N/A
Punished Assessed bv;           PR^e g?ntence lmpQ8e<j:                D^te Sentence to Ppipmeng?:
JURY                            3/7/2009                               3/7/2009
Punishment and I%ce Five (5) YEARS INSTITUTIONAL DIVISION, TDCJ
of Confinement
                             THIS   SMtTBitcB SHALL ROW OONOBOUTIVBH^ (eee below). ^5EWC<M4»3»^                                ^
       n     SERTBHCB OF CONFmEMBNT SOSPERDED, DEFENDANT PLACED ON CX>llinmnT SUPERVISION FOR N / A .
Fine:                                   Court Costs: Restitution:              Restitution Payable to:
$10,000                                 $ 5H< OO $ N / A                       • VICTIM (see below) • AGEWCY/AIMBNT (see below)
Sex Offender Rsgiitmtion Requirements apply to the Defendant. TEX. CODE CRIM. PROC. chapter 62.
The age of the victim at the time of the offense was Ten (10) years.
                 If Pefen4ant i? tQ        WAtei^g in TDCJ, entgr jfipflrggrjitiffl rioda in chronological order,
                 From          to              From      to             Ftom           to
Time             From          to              From      to             Prom
Credited:                                                                              to
                 If Pfffim4flpt i§ tP »CTV<? sentence mCTWitY1 Wl W isffiVfflcredit towardflfl?Bad gp^,ffRtCTdffY? «?reditp4 belgw,
                          DAYS NOTES: N / A
      All p*ttla«»tfaftenuktioatBUUM mad maammmmntm ladlmted abova laeoiponitad Into thm Jmngmmgt of th* JndffBMit below hj niBunmom.
         This cause was called for trial in Burnet County, Texas. The State appeared by her District Attorn^.
         CwuMel/Waiver of Countel (select one)
IHt Defendant appeared in person with Counsel.
• Defendant knowingly, intelligently, and voluntarily wawed the right to representation by counsel in writing in open court.
         It appeared to the Court that Defendant was mentally competent and had pleaded as shown above to the charging
instrument. Both parties announced ready for trial. A jury was selected, impaneled, and sworn. The INDICTMENT was read
to the jury, and Defendant entered a plea to the charged offense. The Court received the plea and entered it of record.
         The jury heard the evidence submitted and argument of counsel. The Court charged the jury as to its duty to
determine the guilt or innocence of Defendant, and the jury retired to consider the evidence. ,Uponreturningto open court,
the jury deUvered its verdict in the pr^ence of Defendant and defense counsel, if any.
         The Court received the verdict and OBDBMSD it entered upon the minutes of the Com
         "nr'7*'"Tirint ^tTP*^ ^               / court / NQ election feelect onel
                                     Judginent_McCarty
                                                                                     Page 1 of 2   I
      Jwrf. Defendant entered a plea ancBpd a written election to have the juty assesttpniahment The juiy heard evidence
  relative to the question of punishment Trie Court charged the juty and it retired to ccm^er the question of punishment After
 due deliberation, the jury was brought into Court, and, in open court, it returned its verdict as indicated above.
 • Court. Defendant elected to have the Court assess punishment After hearing evidence relative to the question of
 punishment, the Court assessed Defendant's punishment as indicated above.
 U Ho Blectlon. Defendant did not file a written election as to whether the judge or juiy should assess punishment After
 hearing evidencerelativeto the question of punishment the Court assessed Defendant's punishment as indicated above.
           The Court FniDS Defendant committed the above offense and ORDERS, ADJUDGES AND DBCRBBS that Defendant is
 GUILTY of the above offense. The Court FINDS the Presentence Investigation, if so ordered, was done according to the
 applicable provisions of TEX. CODE CRIM. PROC. art. 42.12 § 9.
           The Court ORDBRS Defendant pimished as indicated above. The Court OKOKRS Defendant to pay allfines,court costs,
 andrestitutionas indicated above.
           Pnntohmeat Qptlont fselect one)
 ^ Conflnemeat in State JaU or Institutional Division. The Court Omnia the authorized agent of the State of Texas or the
 Sheriff of this County to take, safely convey, and deliver Defendant to the Director, Institutional Division, TDCJ. The Court
 Otaaaa Defendant to be confined for the period and in the manner indicated above. The Court ORDERS Defendant remanded
 to the custody of the Sheriff of this county until the Sheriff can obey the directions of this sentence. The Court ORDBRB that
 uponreleasefrom confinement Defendant proceed immediately to the Bumet County District Clerk Once there, the Court
 ORDVMB Defendant to pay, or make arrangements to pay, anyremainingimpaidfines,court costs, andrestitutionas ordered
     the Court above.
      County Jail>-Conflnement / Confinement In Lieu of Payment. The Court O S D B M Defendant immediately committed
 to the custody of the Sheriff of        County, Texas on the date the sentence is to commence. Defendant shall be confined in
 the         County Jail for the period indicated above. The Court 0RI»R8 that uponreleasefrom confinement Defendant shall
 proceed immediately to the          . Once there, the Court Onmaa Defendant to pay, or make arrangements to pay, any
 remaining unpaidfines,court costs, and restitution as ordered by the Court above.
 • line Only Payment. The punishment assessed ai^inst Defendant is for a wmm OHLT. The Court ORDBRS Defendant to
 proceed immediateb^ to the Office of the         County . Once there, the Court ORDBM Defendant to pay or make
 arrangements to pay allfinesand court costs as ordered by the Court in this cause.
           Brocution / Snaneneion of Sentence feelect onel
 IS The Court ORDBHS Defendant's sentence BXBCOTSD.
 • The Court ORDERS Defendant's sentence of confinement SDSPIIIDBD. The Court ORDBUB Defendant placed on community
 supervision for the adjudged period (above) so long as Defendant abides by and does not violate the terms and conditions of
community supervision. The order setting forth the terms and conditions of community supervision is incorporated into this
judgment by reference.
           The Court OKinBRfl that Defendant is given credit noted above on this sentence for the time spent incarcerated.
                                Fnrthermore, the following apecial flndinga or ordera apply;


Signed and entered o n Blarclt 7, 2009



                                                            JUDGE PRESIDING




Clerk:




                                                                                             Right Thumbprint




                                    Judgn>ent_McCarty                            Pa«e2 of2
T H E STATE OF TEXAS                                                                  IN T H E 33RD DISTRICT

V.                                                                                    COURT

K E L L Y JAMES M C C A R T Y                                                         BURNET COUNTY, TEXAS

STATE ID No.: TX

                                       JUDGMENT OF ACQUITTAL BY JURY
Judge Presiding:         HON. GUILFORD L. JONES, HI                           Date Ju^ment
                                                                              Entered:            3/7/2009
Attorney for State:     CHERYL NELSON                                         Attorney for
                                                                              Defendant:         RICHARD DAVIS
Charg^4 QS^n^'
INDECENCY WITH A CHILD B Y CONTACT
                                                                             Statute for Offense:
INDICTMENT                                                                   2L11 Penal Code
     to Qffense:
NOT GUILTY
               All pertinent infismation, naaias end aeaeMmente indkatad above too inompozatad into the languace of the jadpnent bekw hy rafinence.
         This cause was called for trial in Bumet County, Texas. The State appeared by her District Attorney.
         Counael / Waiver of Counsel Oselect one)
13 Defendant appeared in person with Counsel.
D Defendant knowingly, intelligently, and volimtarily waived the right to representation by counsel in writing in open court.
         It appeared to the Court that Defendant was mentally competent and had pleaded as shown above to the charging
instrument. Both parties announced readyfortrial A jury was selected, impaneled, and sworn. The INDICTMENT was read to the
jury, and Defendant entered a plea of NOT GUILTY to the charged offense. The Court received the plea and entered it of record.
         The jury heard the evidence submitted and the argument of counsel. The Court charged the jury as to its duty to determine
the guilt or innocence of Defendant, and the jury retired to consider the evidence. Upon returning to open court, the jury delivered its
verdict. The Court received the jury's verdict and ordered the verdict entered of re(X>rd upon the minutes of the Court as follows:
                  ' m , the Jury, find the defendant NOT GUILTY."

         The Court ORDERS. ADJUDGES, AND DECREES that Defendant is NOT GUILTY of the charged offense as
FOUND BY THE VERDICT OF THE JURY. The Court PURTHEE ORDEES Defendant immediately discharged.

Signed and entered on March 7, 2009

                                                                            X
                                                                            SON. GUILFORD L. JONgS, H I
                                                                            JUDGE PRESIDING


Clerk:
                                                                                                                   .0-aociuLJF
                                                                                                                   BiSTRICTOERK

                                                                                                            MAR     9 2009

                                                                                                                     iRNtTCOUNniX
                                                                                                                           „ DEPUTY




                                          Judginent_oLAcquttalJ>y_Jtuy_050106. doc            Page 1 of 1
                                              IB N o . 3 0 8 4 2                 CotnrrTtlJlP
                                                      INCIDENT       No./TRN:

T H E STATE OF TBXAS                                                  S          IN T H B 3 3 " D I S T R I C T
                                                                      §
V.                                                                    s          COURT
                                                                      s
K B I X Y JAMBS MCCARTY                                               s          B U R N B T COUVTYY T E X A S
                                                                      s
STATE ID No.: TX                                                      §

                                 JUDGMENT O F CONVICTION B Y J U R Y
Judge Presiding:      ROM. GUILFORD L . JONES, I I I                    Date Judgment
                                                                        Entered:            3/7/2009
Attorney for State:   CHERYL NELSON                                     Attorney for
                                                                        Defendant:         RICHARD DAVIS
Offense for which Defendant Convicted:
INDECENCY WITH A CHILD BY CONTACT
pi^fflgfflg In^tmment:                                                  Statute for Offense:
mDICTMENT                                                               21.11 Penal Code
7/28/2004
Degree ofOffenae:                                                       Plea to Offeq^:
2ND DEGREE FELONY                                                       NOT GUILTY
v<^rdly^pf^\try:                                                        Findings on Deadlv Weapon:
GUILTY                                                                  N/A
Plea to l«t Enhancement                                          Plea to 2n<* Enhancement/Habitual
Paragraph:                  N/A                                  Paragraph:                              N/A
Findings on 1** Enhancement                                      Findings on 2n<«
Paragraph:                  N/A                                  Enhancement/Habitual
                                                                 l^uragp:aph:
                                                                                                          N/A
                                     P^t? g^n^nce Impp?^:        Pate Se^t^nge ^ (^jpam^nq^;
JURY                                 3/7/2009                    3/7/2009
Punishment and Place
of Confinement-          Ten (10) YEARS INSTITUTIONAL DIVISION, TDCJ
                             THIS SEHTBHCB SHALL RUN              C O N S B C U n V ^ Y (see below).
     SBRTEirCB OP COHFIHBMEirr SUSFERDED, DBTEliSAHT PLACKD ON COlOnmiTT SOPESRVISIOH F O R Ten (10) YEARS.
Fine:                               Court Costs: l^e^ti^tion:             Restitution Pavable to:
$ lOjOOO PROBATED                                    $N/A                 • V I C T I M (see below] • AQEWCY/ACMT (see below)
Sex OCfender Registration Requirements apply to the Defendant. TEX. CODE CRIM. PROC. chapter 6 2 .
The age of the victim at the time of the offense was Ten (10) years.
               If Defendant is to serve sentence in TDCJ. enter incarceration periods in chronological order.
               From        to              From       to             Ftcm        to
Time           From        to             From       to              From        to
Credited:
               If PCfeR4mt i919 yrve sentence in county jail or is givencredit towardfineand costs, enter davs credited below.
                      DAYS     NOTES: N/A
      AU fwtfaumt lafimnation, ammmm and i iBta tadlratod abov* an laoerponted late thm laagiiag* of Uw joAgmrat bakm by rafarMHw.
         Tliis cause was called for trial in Bomet County, Texas. The State appeared by her District Attorney.
         CoimefI / WirfVfy Qf g^HBfffelfCt onft)
1^ Defendant appeared in person with Counsel.
Q Defendant loiowingly, intelligently, and voluntarily waived the right to representation by counsel in writing in open court.
         It appeared to the Court that Defendant was mentally competent and had pleaded as shown above to the charging
instrument. Both parties announced ready for trial. A jury was selected, impaneled, and sworn. The INDICTMENT was read
to the juiy, and Defendant entered a plea to the chsu-ged offense. The Court received the plea and entered it of record.
         Hie jury heard the evidence submitted and argument of counsel. The Court charged the jury as to its duty to
determine the guilt or iimocence of Defendant, and the jury retired to consider the evidence. Upon returning to open court,
the jtuy delivered its verdict in the presence of Defendant and defense counsel, if any.                                    ——
         The Court received the verdict and Oamam it entered upon the minutes of the Court. :
         FmiilfflimTTt Aseeseed by Jury / Court / No electton feclect onet
                                     Ji)dgineiit_McCany(Count   Tiim)                     PR«e l o f 2
SI i||nqr.> Pttfendant entered a plea an<jfipd a written election to have the jury asses^wnishment The juiy heard evidence
fit^tive to <iie question of punishment TOe Court charged the jury and it retired to colder the question of punishment After
due deliberation, the jury was brought into Court, and, in open court, it returned its verdict as indicated above.
• Conrt. Defendant elected to have the Court assess punishment After hearing evidence relative to the question of
punishment, the Court assessed Defendant's punishment as indicated above.
U Ifo Eleetioii. Defendant did notfilea written election as to whether the judge or juiy should assess punishment After
hearing evidence relative to the question of punicdiment, the Court assessed Defendant's punishment as indicated above.
          The Court Voam Defendant committed the above offense and ORDJBRB, ADJUDGES AND DBCRBBS that Defendant is
OinLTY of the above offense. The Court FllfDS the Presentence Investigation, if so ordered, was done according to the
applicable provisions of TEX. CODE CRIM. PROC. art. 42.12 § 9.
          The Court OHOBIW Defendant punished as indicated above. The Court OSDBIUI Defendant to pay all fines, court costs,
and restitution as indicated above.
 IS Confiaainaiit in State JaU or Inatitnttonal Diviston. The Court OSDBRS the authorized agent of the State of Texas or the
 Sheriff of this County to take, safely convey, and delh^er Defendant to the Director, Inttltuttonal Divieion, TDCJ. The Court
 Osaam Defendant to be confmed for the period and in the manner indicated above. The Court ORDERS Defendant remanded
 to the custody of the Sheriff of this county until the Sheriff can obey the directions of this sentence. The Court ORi»Re that
 upon release from confinement, Defendant proceed immediately to the Bumet County District Clerk. Once there, the Court
 OmoaaB Defendant to pay, or make arrangements to pay, any remaining unpaid fines, court costs, and restitution as ordered

S    the Court above.
      County JalI-~Confinenient / Confinement in Lien of Payment. The Court ORDSRA Defendant immediate^ committed
 to the custody of the Sheriff of       County, Texas on the date the sentence is to commence. Defendant shall be confmed in
 the        County Jail for the period indicated above. The Court ORDSRS that upon release from confmement, Defendant shall
 proceed immediately to the         . Once there, the Court ORDSRS Defendant to pay, or make arran^ments to pay, any
remaining impaidfines,court costs, and restitution as ordered by the Court above.
 • Fine Otdy Payment. The punishment assessed against Defendant is for a FOIK OHLY. The Court ORDERS Defendant to
proceed immediately to the Office of the         County . Once there, the Court ORDERS Defendant to pay or make
arran^ments to pay an fines and court costs as ordered by the Court in this cause.
          Execution / Suspension of Sentence (select one)
 • The Court ORDERS Defendant's sentence MXECOTED.
 IS The Court ORDERS Defendant's sentence of confinement SDSPBRDSD. The Court ORDERS Defendant placed on community
supervision for the adjudged period (above) so long as Defendant abides by and does not violate the terms and conditions of
community supervision. The order setting forth the terms and conditions of community supervision is uicorporated into this
judgment by reference.
          The Court ORDERS that Defendant is given credit noted above on this sentence for the time spent incarcerated.
                              Fiirthermore. the following special findings or orders apply;


Signed and entered o n March 7, 2009




Clerk:




                                                                                            Right Thumbprint




                                    JudgmenUtlcCartyfCount Three)                PageSoTS
APPENDIX V
           TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                                    NO. 03-09-00378-CR




                                         Kelly James McCarty, Appellant
                                                                                                JUL 2 3 2009
                                                            V.


                                          The State of Texas, AppeUee                    DISTRICT.OauS^dUtJRNET COUNIX TX
                                                                                                              _ DEPUTY

SSSSSSSS    •   "i! '           I    „    "i 'II,     I          ' ,   ,   ,.   I   •"


       FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
          NO. 30842, HONORABLE GUILFORD L . JONES, III, JUDGE PRESIDING



                                    MEMORANDUM                         OPINION


                        Kelly James McCarty seeks to appeal convictions for two covmts of indecency with

a child by contact. Sentence was imposed on March 7,2009, and there was a timely motion for new

trial. The deadline for perfecting appeal was therefore June 5, 2009. Tex. R, App. P. 26.2(a)(2).

Notice of appeal was filed on June 15, but no extension of time for filing notice of appeal was

requested.* Tex. R. App. P. 26.3. McCarty's counsel has informed the Court that the notice of

appeal was mailed on June 12, and therefore the mailbox rule does not apply. Tex. R. App. P. 9.2(b).

Under the circumstances, we lack jurisdiction to dispose of the purported appeal in any manner other




  * There is no implied motion for extension of time in criminal appeals as there is in civil appeals.
Compare Verburgt v. Domer, 959 S.W.2d 615, 616-17 (Tex. 1997), with Olivo v. State,
918 S.W.2d 519, 522 (Tex. Crim. App. 1996).
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).

              The appeal is dismissed.




                                            Jan P. Patterson, Justice

Before Justices Patterson, Puryear and Pemberton

Dismissed for Want of Jurisdiction

Filed: July 22,2009

Do Not Publish




        McCarty must seek an out-of-time appeal by means of post-conviction habeas corpus.
See Tex. Code Crim. Proc. Ann. art. 11.07 (West Supp. 2008).

                                              2
APPENDIX VI
             IN T H E 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 Coimt 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 hisrightto appeal. We remanded this application to

the trial court for findings of fact and conclusions of law. The trial court has determined thai
                                                                                                      2

appellate counsel failed to timely file a notice of appeal. Wefind,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 Bumet 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. T E X . C O D E CRIM. PROC.

art. 11.07, § 3(a); Ex parte Twyman, 716 S.W.2d 951,952 (Tex. Crim. App. 1986).



Delivered: August 24,2011
Do Not Publish
APPENDIX VII
      TEXAS COURT OF APPEALS, THIRD DISTRICT, A T AUSTIN


                                            NO. 03-11-00628-CR



                                    Kelly James McCarty, Appellant

                                                        V.

                                       The State of Texas, Appellee



     F R O M T H E D I S T R I C T C O U R T O F B U R N E T C O U N T Y , 33RD J U D I C I A L D I S T R I C T
            NO. 30842, H O N O R A B L E G U I L F O R D L . J O N E S I I I , J U D G E P R E S I D I N G
                                                                                        ———--      "   ———~




                                MEMORANDUM                        OPINION


                Appellant Kelly James McCarty was indicted for three counts of indecency with a

child by contact. See Tex. Penal Code §21.11. The charges arose from allegations made by three

children who had been campers at a summer camp where the Appellant had worked as a counselor.

The Appellant's first trial ended in a mistrial after the jury was unable to reach a verdict. The jury

in the Appellant's second trial convicted him of the first and third counts of indecency with a child

by contact but acquitted him of the second count. The Appellant was sentenced to five years'

imprisonment for the first count and ten years' community supervision for the third count. After filing

an untimely appeal that was dismissed for lack ofjurisdiction, the Appellant filed an application for

habeas corpus relief to file an out-of-time appeal. See Tex. Code Crim. Proc. art. 11.07. The Court

of Criminal Appeals granted the Appellant leave to file an out-of-time appeal as to Count I but

denied relief as to Count IE.
               The Appellant now appeals his conviction as to Count I , contending the trial court

erred by: (1) admitting evidence of unnoticed extraneous bad acts; (2) admitting the State's expert

testimony but excluding his expert's testimony; and (3) submitting an improper jury charge. As the

parties are familiar with the facts and applicable standards of review, we will not recite them here

except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex.

R. App. P. 47.4. We will affirm the trial court's judgment.


                         ADMISSION OF EXTRANEOUS BAD ACTS

               In his first point of error, the Appellant contends the trial court erred by admitting

evidence he characterizes as "extraneous bad acts" without the prosecution having provided him

timely notice of their intent to use such evidence in response to his request under Texas Rule of

Evidence 404(b). The first two alleged extraneous acts we address involve the Appellant's conduct

with two of the minor complainants. First, a camp counselor testified during the State's case-in-chief

that—sometime before the events giving rise to Count I of the indictment involving camper number

2004-23—he observed camper 2004-23 and the Appellant alone in a cabin sitting on a bed together

and talking.' The second incident involved another complainant, camper number 2004-25, who

testified during the State's case-in-chief that the Appellant told him—sometime before the events

giving rise to Count III of the indictment—^that he needed to be more comfortable being naked and

that his prior group of campers had initially been airaid to be naked but by the end of the term, they

were having "naked concerts in their bathroom . . . playing penis guitar and banging their butts as



        *• At trial, the minor complainants were referred to by their camp numbers to protect their
identity.
drums." The Appellant complains these were unnoticed extraneous bad acts admitted in violation

of Rule of Evidence 404(b). See Tex. R. Evid. 404(b) (evidence of other crimes, wrongs, or acts not

admissible to show character conformity but is admissible for other purposes, provided that upon

timely request by the accused in a criminal case, reasonable notice is given in advance of trial of

intent to introduce such evidence in State's case-in-chief).

               But in sexual abuse cases involving minors. Article 38.37 of the Texas Code of

Criminal Procedure provides that evidence of crimes, wrongs, or acts committed by the defendant

against a child who is the victim of the alleged offense shall be admitted for its bearing on relevant

matters, including the state of mind and previous relationship between the defendant and child.

Tex. Code Crim. Proc. art. 38.37. Article 38.37 is an evidentiary rule and by its express terms

supercedes in certain sexual abuse cases the application of Texas Rule of Evidence 404(b). See

Hitt V. State, 53 S.W.3d 697, 705 (Tex. App.—Austin 2001, pet. refd). Further, the State is only

required to provide prior notice of their intent to use such evidence i f the defendant makes a specific

request for such information pursuant to Tex. Code Crim. Proc. art. 38.37. See id. (request for

notice pursuant to Rule 404(b) does not entitle the defendant to prior notice of the State's intent to

use evidence admissible under Article 38.37).^ Here, the State argued this evidence was admissible

because it showed a pattern of grooming the complainants for sexual abuse, and the discovery order



        ^ Hitt V. State interprets a prior version of the statute that was in effect when the criminal
proceedings against the Appellant commenced. See Act of June 7,1995, 74th Leg., R.S., ch. 318,
§ 48,1995 Tex. Gen. Laws 2734, 2748 (amended 2013) (current version at Tex. Code Crim. Proc.
art. 38.37). The current version of the statute provides that in criminal proceedings commenced
after September 1, 2013, "the state shall give the defendant notice of the state's intent to introduce
in the case in chief evidence described [by Art. 38.37] no later than the 30th day before the date of
the defendant's trial."

                                                   3
identified in the Appellant's brief failed to request notice under Article 38.37. Accordingly, we

cannot conclude the trial court abused its discretion in overruling the Appellant's 404(b) objection

and admitting the testimony. See id. (witness's unnoticed testimony that he had seen defendant and

minor complainant alone on bed together admissible where defendant had requested notice under

Rule 404(b) but had failed to request notice imder Art. 38.37).^

               The Appellant further contends the State improperly introduced rebuttal evidence of

an unnoticed extraneous offense during the punishment phase of trial. During sentencing, however,

a defendant is only entitled to pretrial notice of extraneous offenses or bad acts the State intends to

offer in its case-in-chief. See Tex. Code. Crim. Proc. art. 37.07. The State is not required to give

notice of other offenses or bad acts introduced in rebuttal to the defendant's mitigation evidence.

Jaubertv. State, 74 S.W.3d 1,4 (Tex. Crim. App. 2002); Washington v. State, 943 S.W.2d501,505

(Tex. App.—^Fort Worth 1997, pet. refd) (op. on reh'g). In this case, the Appellant's defensive

theory at sentencing was that he should receive a recommendation for probation because he was a

suitable candidate for community supervision. In rebuttal, the State called a probation officer who

had met with the Appellant prior to trial. The officer testified, based on her conversation with the




         ^ Appellant additionally complains that a witness was permitted to testify—^without prior
notice—^that he observed the Appellant lying on a bed with a camper who has not made any
allegations of misconduct against the Appellant and is not a complainant in this suit. The witness
testified that there were other people in the cabin at the time he observed this conduct and did not
allege that he observed any misconduct. "To constitute an extraneous offense, the evidence must
show a crime or bad act, and that the defendant was connected to it." Moreno v. State, 858 S.W.2d
453,463 (Tex. Crim. App. 1993). Assuming this is evidence of a crime or bad act as contemplated
by Texas Rule of Evidence 404(b), the Appellant has not shown how his defense was injuriously
affected by the State's failure to provide reasonable notice of this testimony. See Hernandez v. State,
176 S.W.3d 821, 826 (Tex. Crim. App. 2005).

                                                  4
Appellant, that she understood he had been working as a referee for a children's soccer league since

his arrest. The officer fiirther testified that, at a prior hearing, the Appellant had told the trial court

that the officer had misunderstood him because he was actually working as a referee for a women's

soccer league. The officer testified that she did not believe she was mistaken that he had initially

said it was a children's league."* As the challenged testunony was offered in rebuttal to the Appellant's

mitigation evidence, we cannot conclude the trial court abused its discretion by admitting the

testimony without notice. See Jaubert, 74 S.W.3d at 4.

                The Appellant also complains that the State improperly impeached him during trial

with an unnoticed extraneous offense during the State's cross-examination of the Appellant. The

record reflects the trial court ruled during a bench conference that the State would be permitted to

impeach the Appellant on cross-examination with evidence showing he had lied to his bond officer

about residing out of the state. After reviewing the record, however, the State never impeached the

Appellant with this information during open court in front of the jury. Accordingly, there is nothing

to review. For the foregoing reasons, we overrule the Appellant's first point of error.


         ^ On cross-examination, Appellant expanded the scope of the probation officer's testimony
by asking whether in her professional experience she had known any offenders on probation for
sexual offenses against children and whether there were speciahzed probation officers to supervise
such offenders. She answered yes to both questions. On redirect, the State asked the officer questions
related to her experience working with pedophiles on probation, including whether the probation
office could guarantee that an offender would not abuse another child while on probation and
whether it was important for an offender to admit guilt for successful rehabilitation. In his fourth
point, the Appellant complains the trial court erred by allowing the probation officer "to offer expert
testimony about pedophilia." We disagree. The Appellant first asked the probation officer questions
related to her professional expertise and on redirect the State was entitled to ask questions to explain
the probation officer's answers given on cross-examination from which erroneous inferences might
be drawnby the jury. See Rogers v. State, 815 S.W.2d 811, 816 (Tex. App.—Amarillo 1991, no
pet.); see also Ellison v. State, 201 S.W.3d 714, 723 (Tex. Crim. App. 2006) (probation officer
qualified in punishment phase to give opinion on defendant's suitability for probation).

                                                    5
                                      E X P E R T TESTIMONY

                In his second point of error, the Appellant contends the trial court erred by both

excluding testimony from his expert witness and admitting testimony from the State's expert

witness. For expert testimony to be admissible under Texas Rule of Evidence 702, the party offering

the scientific expert testimony must demonstrate by clear and convincing evidence that such

testimony "is sufficiently reliable and relevant to help the jury in reaching accurate results." See

Kelly V. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992). Here, the Appellant does not attack

the reliability of the State's expert testimony but only its relevance to the issues at trial. Relevance,

rather than reliability, was also the basis for the trial court's exclusion of the Appellant's proffered

expert testimony. Accordingly, our analysis focuses on the relevance of the expert testimony at issue.

                We will first address the testimony of the State's expert witness. Dr. Ferrera,

who testified during the guilt/innocence phase of trial regarding the conduct of child molesters.

Dr. Ferrera testified that child molesters often groom children for sexual contact and described

common practices frequently used by sex offenders to groom children. In response to hypothetical

questions mirroring the facts of this case, Dr. Ferrera then testified that the scenarios depicted were

consistent with the practices he had described and were typical grooming behavior of an experienced

male pedophile. The Appellant contends the trial court erred by admitting Dr. Ferrera's testimony

because grooming was not a fact issue for the jury and the testimony was not relevant because there

was no evidence that the Appellant was engaged in grooming. We disagree. The Court of Criminal

Appeals has recognized that grooming of children for sexual molestation, as a phenomenon, is a

legitimate subject of expert testimony. Morris v. State, 361 S.W.3d 649, 656 (Tex. Crim. App.



                                                   6
2011). Further, the trial court was within its discretion in finding the evidence was relevant because

Dr. FeiTcra sufficiently tied his testimony regarding grooming to the specific facts of the case. See

Jordan v. State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996). Accordingly, we cannot conclude

the trial court abused its discretion by admitting the State's expert testimony.

               With regard to the Appellant's expert witness, Mark Steege, the trial court permitted

the expert to rebut Dr. Ferrera's testimony on grooming. The Appellant, however, also attempted

to proffer testimony from Steege during trial regarding his assessment of the Appellant's sexual

interests. Outside the presence ofthe jury, Steege—a. psychotherapist—testified that he had conducted

a clinical evaluation of the Appellant and had administered two exams designed to test the sexual

interest of a person, the Abel Assessment for Sexual Interest Test and the Sexual Adjustment

Inventory.^ Based on his clinical evaluation and the exam results, Steege testified outside the

presence of the jury that in his opinion the Appellant was a "normal sexual young man, with normal

ideas about sexuality, with no problems with drugs or alcohol, [and] with no significant interest in

being sexual with someone other than appropriate partners." The trial court excluded the testimony

on the grounds that it was not helpfiil to the jury in determining an ultimate fact at issue.

               Based on the record before us, we cannot conclude the trial court abused its discretion

by excluding the testimony. An intent to arouse and gratify the sexual desire of any person is an

element of the offense of indecent conduct with a child. See Tex. Penal Code §21.11. The Appellant

offered Steege's expert testimony to show that generally he does not have sexually deviant



        ^ The reliability of the Abel Assessment for Sexual Interest Test and the Sexual Adjustment
Inventory were not challenged by the State at the trial court or on appeal. As we determine the trial
court did not abuse its discretion by excluding the testimony as irrelevant, we express no opinion as
the reliability of the expert's opinions.

                                                  7
preferences and therefore could not have had the requisite intent to commit the charged offense. The

use of expert testimony, however, must be limited to situations in which the expert's knowledge and

experience on a relevant issue are beyond that of an average juror. Yount v. State, 872 S.W.2d 706,

711 (Tex. Crim. App. 1993). Here, the trial court was within its discretion in finding that a

determination of whether the Appellant had the intent to sexually gratify himself by touching a

camper's penis required no special knowledge or experience.* See In re J. G., No. 03-97-00217-CV,

1998 WL 271053, at *2 (Tex. App.—Austin May 29, 1998, no pet.) (mem. op.) (expert testimony

that appellant was generally not sexually aroused by young girls not relevant in helping jury

determine whether appellant had the requisite intent to be sexually gratified by touchings at issue).

Further, Steege made no "effort to tie the pertinent facts of the case to the scientific principles which

[were] the subject of his testimony." See Jordan, 928 S.W.2d at 555; see also Williams v. State, 895

S.W.2d 363, 366 (Tex. Crim. App. 1994) (expert testimony that defendant's psychological profile

was not compatible with profile of type of person who would have committed offense not helpful

when expert failed to connect generic testimony to facts of case). Accordingly, we cannot conclude

the trial court abused its discretion in determining that the Appellant failed to demonstrate by clear

and convincing evidence the relevance of Steege's excluded testimony. See Montgomery v. State,

810 S.W.2d 372,380 (Tex. Crim. App. 1990) (as long as trial court's ruling on relevance of evidence

is "at least within the zone of reasonable disagreement, the appellate court will not intercede").



         With regard to Count I of the indictment, the camper involved testified that the Appellant
had asked him to lay down on his bed and then started "masturbating" the boy's penis for
approximately five minutes while breathing heavy, despite the boy saying that he wanted to leave.
The boy fiirther testified that after he left the bed, the Appellant told him to not tell the other camp
counselor what had occurred.

                                                   8
               Appellant additionally complains the trial court wrongfully excluded Steege's

testimony during the punishment phase of trial. Appellant called Steege during the punishment

phase to give his expert opinion on Appellant's risk of future dangerousness and suitability for

community supervision. During direct examination, Steege testified to the jury that: (1) in the

profession of psychology there are certain characteristics mental health professionals use in

determining the risk associated with a sexual offender; (2) that he had tested the Appellant according

to that criteria using multiple psychological testing methods; and (3) that he did not discover that the

Appellant possessed any characteristics associated with a predatory, or risky, sex offender. The

Appellant contends that the trial court wrongfully excluded Steege's opinion that the Appellant

presented no risk to the community as long as he was under community supervision. All of the

evidence presented in the Appellant's bill of exception, however, was presented to the jury. The

fact that Steege was prevented from giving an opinion as to whether this evidence shows that the

Appellant was a suitable candidate for probation does not mean the jury was prevented from

considering and giving effect to this evidence in their determination of sentencing. See Reyes v. State,

84 S.W.3d 633, 639 (Tex. Crim. App. 2002) (no abuse of discretion where trial court permitted

expert to present mitigating evidence but precluded expert from testifying as to his opinion that

such evidence was mitigating). Finding no abuse of discretion, we overrule Appellant's second

issue on appeal.



                                         JURY C H A R G E

               hi his third point of error, the Appellant contends the trial court committed reversible

error by submitting a jury charge that erroneously defined the term "sexual contact" in the abstract
portion of the charge, hi this case, the Appellant was charged with thiee counts of indecency with

a child by contact. The penal code defines this offense as engaging in sexual contact with a child

or causing a child to engage in sexual contact with the intent to arouse or gratify the sexual desire

of any person. Tex. Penal Code §21.11. "Sexual contact" is defined as including "any touching... of

the anus, breast, or any part of the genitals of a child" i f the act is "committed with intent to arouse

or gratify the sexual desire of any person." See id. The Appellant's indictment for Count I, however,

limited the chai'ged offense by specifying that the Appellant had engaged in sexual contact with

Bumet Co. Buck 2004-23 to gratify his own sexual desire. See Crenshaw v. State, 378 S.W.3d 460,

465 (Tex. Crim. 2012) (state is bound by allegations in charging instrument because criminal

defendant is entitled to fair notice of the specific charged offense).

                hi the jury charge, the application paragraphs correctly tracked the indictment's

language verbatim. Specifically, the apphcation paragraphs instructed the jury:


                Now bearing in mind the foregoing instructions, i f you believe from the
        evidence beyond a reasonable doubt that the defendant . . . , as alleged in the
        indictment, did then and there, with the intent to arouse and gratify the sexual desire
        of said defendant, intentionally or knowingly engage in sexual contact with Bumet
        Co. Buck 2004-23, by touching the genitals of Bumet Co. Buck 2004-23, a child
        younger than 17 years of age and not the spouse of the defendant, you will find the
        defendant guilty of the offense of hidecency with a Child by Contact and so say by
        your verdict in Count One, but i f you do not so believe, or i f you have a reasonable
        doubt thereof, you will acquit the defendant and say by your verdict "Not Guilty."


The preceding absti'act paragraph of the charge, however, defined sexual contact—^using the

definition from the penal code—as "any touching of the anus, breast, or any part of the genitals of




                                                   10
another person with intent to arouse or gratify the sexual desire ofany person." See Tex. Penal Code

§ 21.11 (emphasis added).

               The Appellant contends it was reversible error for the trial court to abstractly instruct

the jury regarding the penal code definition for "sexual contact" because it authorized a conviction

without requiring the jury to specifically find that "they believed that the defendant [acted] with the

intent to arouse or gratify his own sexual desire.'' We disagree. In determining whether there is

charge error, we must examine the charge as a whole and consider the interplay between the abstract

or definitional part of the charge and the application portion of the charge that applies the law to the

facts of the case. Plata v. State, 926 S.W.2d 300, 302 (Tex. Crim. App. 1996), overruled on other

grounds, Malik v. State, 953 S. W.2d 234 (Tex. Crim. App. 1997). Generally, reversible error occurs

in the giving of an abstract instruction only when the instruction is an incorrect or misleading

statement of the law that the jury must understand in order to implement the commands of the

application paragraph. Crenshaw, 378 S.W.3d at 466. This is true because an abstract statement of

the law that goes beyond the allegations in the indictment is ordinarily "effectively restricted by

the charge's application of the law to the facts, which should limit the jury's deliberations to the

allegations in the indictment supported by the evidence." See Sandig v. State, 580 S.W.2d 584,586

(Tex. Crim. App. 1979).

               In this case, although the abstract portion of charge included the full statutory

definition of "sexual contact," the application paragraphs properly authorized conviction only i f

the jury found beyond a reasonable doubt that the Appellant—as alleged in the indictment—^acted

with the intent to arouse and gratify his own sexual desires. Accordingly, the application paragraph



                                                  11
properly limited the jury's deliberations to the allegations in the indictment. Further, even i f we were

to find error, such error would not be reversible because the Appellant has not shown that he was

sufficiently harmed. When an appellant properly objects to a jury charge, as here, we may reverse

only i f we find "some harm" from the jury charge error. SeeAlmanza v. State, 686 S.W.2d 157,171

(Tex. Crim. App. 1985) (op. on reh'g). Here, the Appellant contends he was harmed because the

charge permitted the jury to convict him of an offense not charged in the indictment, but we have

already overruled this argument. Fuilher, reviewing the record of the trial as a whole, there was no

evidence or argument that the Appellant had engaged in these acts to satisfy the sexual desire of any

person other than himself See id. si Ml (actual degree of harm arising from jury charge error must

be "assayed in light of the entire jury charge, the state of the evidence, including the contested issues

and weight of probative evidence, the argument of counsel and any other relevant information

revealed by the record of the trial as a whole."). Therefore, even i f we found error, we cannot

conclude the Appellant suffered harm requiring reversal of his convictions. See Ramirez v. State,

967 S.W.2d 919, 922 (Tex. App.—Beaumont 1998, no pet.) (including full statutory definition of

"sexual contact" in abstract portion of jury charge harmless when application paragraph limited

circumstances upon which jury was authorized to convict to circumstances alleged in indictment).

Accordingly, we overrule Appellant's third point of error.


                                          CONCLUSION

                For the foregoing reasons, we affirm the judgment of the trial court as to Count L




                                                   12
                                           David Puryear, Justice

Before Justices Puryear, Pemberton, and Field

Affirmed

Filed: April 15, 2014

Do Not Publish




                                                13
APPENDIX   VIII
                     TERMS AND CONDITIONS OF PROBATION
                                    OF

                               K E L L Y JAMES McCARTY

                                  CAUSE NO.: 30842


COURT: 33RD JUDICIAL DISTRICT COURT OF BURNET COUNTY, TEXAS

DATE PROBATION GRANTED: FEBRUARY 22 . 2008 .

LENGTH OF PROBATION:          (5) FIVE YEARS DEFERRED ADJUDICATION

OFFENSE: INJURY TO A CHILD              DEGREE: 3RD

     During your probation, you are ORDERED to comply with and abide by the following terms
     and conditions of probation:

1.   Commit no offense against the laws of this State, or any other State of the United States.

2.   Completely abstainfromthe use and/or po ssession o f alcoholic beverages and illegal drugs.

3.   Avoid persons of disreputable or harmful character including, association with persons on
     probation or parole or who have been previously convicted of a crime, and specifically, avoid
     contact or association with                                              .

4.   Avoid places of disreputable or harmfiil character including, but not limited to, places where
     alcoholic beverages are sold, served or delivered, except bonafide eating establishments.

5.   Report in person immediately to the Probation Officer of the Community Supervision and
     Corrections Department of BURNET             County. Texas, and thereafter report at such
     other times and in such manner as directed by the Court or the Probation Officer.

6.   Permit the Probation Officer to visit you at your home, place of employment, or elsewhere,
     as directed by the Probation OflBcer.

7.   Inform the Probation Officer within 5 days of any charge or accusation of violating the law
     made against you or any contact with law enforcement officers pertaining to violations of the
     law.

8.   Do not purchase, manufacture, transport, repair, sell or possess a firearm or other illegal
     weapon as defined in Sec. 46,01, Texas Penal Code.
1



     9.   Rcmam within the limits of ROCKINGHAM COUNTY. VA                       unless given permission
          by the Probation Officer to leave such limits.

    10.   Support all dependents you now have or that you may acquire during the probation period,
          which includes, but is not limited to, payment of all court ordered child support.

    11.   Notify the Probation Officer of any change of address or employment within 5 days of such
          change.

    12.   Submit yourself to urine testing by your probation officer for detection of controlled
          substances, dangerous drugs, marijuana or alcohol and pay the established fee for such
          testing.

    13.   Participate and work, without conqjensatbn, ten hours per month in a community service
          program or task as directed by the Probation Officer for a total of 375 hours.

    14.   Pay the following amounts to and through the Community Supervision and Corrections
          Department:

          a.     Court costs in the anwunt of $    ^           due in     fall    fYMtfr^.MJ.
          b.     Probation fee of$ 60.00 each month during your probation period beginning
                  MARCH 22 .2008.

          c.     Crime Stoppers fee to the BURNET Crime Stoppers Program in the amount of
                 $50.00 at the rate ofiS 5.00 per month beginning MARCH 22 .2008.

          d.     Restitution/Reparation in the amount of $                             at the rate of:
                 $                 per month beginning          ,2          .

          e.     Fine in the amount of$ 3000.00        at the rate of$   75.00    per month beginning
                 MARCH 22.2008

          f      Court appointed attorney fees in the amount of $^.350.00 at the rate of:
                 $ ' 4 « ! ^ per month beginning MARCH 22 . 2008


    15.   Do not communicate with or contact the victini(s) of your ofFense(s) or the victim(s) family
          or go near a residence, school or other location of the victim(s) or victim(s)femilywithout
          permission of the Probation Officer,

    16.   Workfeithfullyat suitable ec^loyment.

    17.   Do not avail yourself to any law enforcement agency as a confidential informant, without
          prior written approvalfromyour Probation Officer.
18.    If you are unable to provide verification of a High School Dipbma, GED or current
       enrollment in school, you must attend Educational classes at the rate of two times per week
       for the duration of probation, or until a GED is obtained.

19.            Attend and coniplete a Drug/Alcohol evaluation and abide by any referrals made,

20.             Attend Alcoholics/Narcotics Anonymous a minimum of              per week while on
       probation and provide verification of attendance to the Probation Officer.

21.                  Attend and successfiiUy complete the 15 hour Drug Education class of the
       Supervising Probation Office within 90 daysfi-omdate of this order and pay the established
       fee for said classes.

22.            Attend and successfiiUy con^lete the 12 hour Texas DWI Education Class of the
       Supervising Probation Office within 180 days from this date of this order and pay the
       established foe for said classes.

23.    Attend and successfully conplete the Cognitive Skills Training Program of the Supervising
       Probation Office, if directed by the Probation Officer and pay cost of the same.

24.        X Attend and successfully attend a Victim Intact panel as directed by the Probation
       officer.

25.                                                                        .

       Con^jly with the further terms and conditions set out in the attached:
              ( )     SO Supplement
              ( )     DC Supplement

       It isfiirtherordered that the initial degree of probation supervision you will be under will be:
                       Intensive supervision probation (ISP)

        You are hereby advised that this court shall determine the terms and conditions of your
probatfon and may, at any time during the period of probation, alter or modify such terms and
conditions. The Court has the authority at any time during the period of probation to revoke your
probationforviolation of any of the terms and conditions of probation.




       Signed this date:


                                                    JUDGE PRESIDING
       I hereby acknowledge that 1 have received a copy of the terms and conditions of
probation, including any terms and conditions set out in any Supplements.




Right thumb
                                                   DATE




REVISED 3-01
PROBATIONER:         KCT J.V MiCARTY

CAUSE NO,:        30842

COURT: 33RDJUDIClALDlSTOICrCOURTOF BlE M I                        COUNTY, TEXAS


                                             SO SUPPLEMENT

                 PROBATION TERMS AND CONDHIONS FOR SEX OFFENDERS


      fi isfinlfaerordered diat >Du ocHiipty with die & I b ^ ^


      ofprobotkm date as diracted by     Piobotkm

1     Attmd,paitk:;i»teandooiiipiBtBaps^^^
      pfmider,asd]is:tBdbydieProbatkmO£Qcer                           Remam in said program until siKcess&fiy
      dischaiged by the sex oflfender provider.

3.         diereasonabfeand necessary (»sisjbrps)dn^
      tieatnientof1hcvictim(s)wfaichliavebeenn^^
      not exceed one (1) >ear.

4.    DonotbeabnewifearydnkiorcMdimunderiheageofS                         (17) yEOTSwifliaut written pennissicai
      of>our I M a l m Ofifcer witboiit a treadnoit apf^

5.     ll)el>elendamwinotnx>veoutofihecoun^ofresjden^
      ^ supervising probotKHi officer.

6.    The Defiaxlant win prepare written assigprneols as do

7.    llieDe&ndant win not have ai^oonlad with tbevic^


8.    SiihniitlDabloodsanspleorodierspecimeDtetheDq^^
      Govemmem Gxle^ ibr puipose of oeatiqg a DNA lecoidit^

9.     Subniitapo];ygi!^tesdi%asdii«:tedfay1hBC(mnu^
      same.

10.   Do not possess ai^ sexually-sdmulating ixv sex^^
      patninizeai^place where suc^matenal or eotert^^                                             Avoiduseof
         siteinet uidess given pemifisicm ^

11.   Do not utilize 900teiephonenumbetsunless approved in advance and in w i ^ ^
      OflScer.

12.          C H i m SAFETY ZOWE-SEXUAL ( M I L D E R ITOBATION
                  a        Do i»t a^iervise cr pEBtici»le in anypipgi^
                           wbo are underflieage of 17 and iat r^gulariy provides aWetic, dvic, or cultural activities.

                  b.       Donotgoon,in,orwilfainadistaiiceof2(X)>aids^K4ierechfl^
                           dayzffie &ci%, pl^/ground, public or private )ouifaceda; piblic swimming pool, or video
                           arcade

                  c.        Donotinitiatet,establisfa,normaiatBincontactw]thaay(^
                           in advance and in writing bythe District Judge, Do not date or socialize wifli ai^person^^
                           has chiklim under tlie £ ^ of 17 unless approved in advance and in writi^
                           Supersdsdon officer.

                  d         Dotiotresidewidianydiildutidertfaeageofnorcotd^
                           approved by die Court.


13.       Abkle by aDtreatmaotnilesofdie sex o&nder provider.

14.       Do not biteh hike or pick up hitch bikers.

15.       CkiCk;tober31 ofeachysarofprobatbnAeD^iidantmustiemain^
          November 1 and nnjstnDtpaitic^pQte in Halbweenacfiviti^ Ihepoidili^Qalfaeiesideoceniustbeoffaal
          the door cbsed ta aO dnkfaen/jpeisoas paitk^^

16.       aher              JT^




          Sjgnedtedate:


                                                            JUDGE PRESIDING


          I hadOy ackDO\Kiedgetfiat1 have received a copy oftiietemis an^ cond^ions of probation, inckidiqg ai^ tenns
      oonditiais set out in any Supplements.




RIGHT THUMB PRINT

revised 1-04
APPENDIXIX
                              Cause No. 30842

KELLY JAMES MCCARTY §                      IN THE DISTRICT COURT OF
                                 §
VS.                              §           BURNET COUNTY, TEXAS
                                 §

THE STATE OF TEXAS               §              3 3 ^ JUDICIAL DISTRCT

           APPLICATION FOR WRIT OF HABEAS CORPUS
TO THE HONORABLE JUDGE OF SAID COURT:
      COMES NOW, K E L L Y JAM£S MCCARTY, hereinafter referred
to as "Applicant, and pursuant to article 11 .OS, Texas Code of Criminal
Procedure, and submits this, his Application for Writ of Habeas Corpus
complaining as follows:
      Applicant, K£LLY JAM£S MCCARTY, is illegally restrained of
his liberty by THE HONORABLE J. ALLEN GARRETT,                  PRESIDING
JUDGE 33^ JUDICIAL COURT OF BURNET COUNTY, TEXAS, by
being currently subjected to terms and conditions of commimity supervision
for the offense of indecency with a child by contact - a felony conviction in
catise number 30842, based upon a jury finding of guilty that was never
subject to appeal due to a mistake by John Butler, Applicant's former
appellate attorney, that is in no way attributable to Applicant. This is a
violation of the Fifth Amendment to the United States Constitution, and in
support of the same. Petitioner would show this Honorable Court as follows:
                                       L
      Applicant, Kelly James McCarty, is restrained of his liberty pursuant
to article 11.01, Texas Code of Criminal Procedure, in that he is currently
subject to terms and conditions of conununity supervision.
                      n . FACTUAL BACKGROUND
      Applicant Kelly James McCarty was convicted by a jury on two
counts of Indecency with a Child by Contact on March 7,2009. The jury
assessed punishment for count one at five years prison and a $10,000 fine.
Punishment for count three was assessed at ten years prison and a $10,000
fine with botii prison time and fine suspended. Following the convictions
and a motion for new trial, attorney John Butler was appointed to represent
Applicant on direct appeal. However, Mr. Butler foiled to file a timely notice
of appeal and the appeal was dismissed for want of jurisdiction. This was in
03-09-00378-CR.
      An application for writ of habeas corpus was later filed under article
11.07 of the Texas Code of Criminal Procedure. In WR-74,352-01, the Court
of Criminal Appeals granted Applicant an out-of-time appeal for count one
but denied the request for an out-of-time appeal on count three for want of
jurisdiction.


                                m . CLAIMS
A)     Through nofouitoftilieApplicant, he was denied the right to an
       effective appeal.
       John Butler was appointed as the Applicant's appellate attorney
following ihe second trial (the first trial having ended m a mistrial when the
jury failed to reach a verdict). He was simultaneously appointed to represent
another client at the same tune he received Applicant's case. When
calendaring the deadlines for &e notice of appeal for the two cases, Mr.
Butler miscalculated the deadlme for Applicant and submitted the notice of
appeal three days too late. The ^peal was therefore dismissed for lack of
jurisdiction. Mr. Butler made no effort to correct his mistake and he took no
further action. Mr. Butler's mistake was not attributable to Applicant.
Therefore, Aj^licant's right to appeal the conviction was violated. In the
trial court's findings of fiacts submitted to the Court of Appeals in Ex Parte
Kelly James McCarty (WR-74352-01) the trial court determined that
Applicant had intended to appeal his conviction but appellate counsel failed
to timely file a notice of appeal. The Court of Appeals determined that
Applicant was entitled to an out of tune appeal as to Count One and granted
him that relief
      In this situation, it is appropriate to seek habeas relief under Art.
11.08. In Ex Parte Balderrama, 214 S.W.3d 530 (Tex. App. 2006),
Balderrama invoked article 11.08 when seekmg an out of time appeal. In
their rulmg, the Court of Appeals stated,
      ^'Balderxama's writ application invoked code of criminal procedure
      article 11.08, which has been held to be the appropriate procedural
      vehicle for a person on felony probation seeking post-conviction
      habeas corpus relief. Tex.Code Crim. Proc. Ann. art. 11.08 (West
      2005); see Rodriguez v. Court ofAppeals, 769 S.W.2d 554,557
      (Tex.Crim.App.1989); Ex parte Renier, 734 S.W.2d 349,353 (Tex.
      Crim.App.1987).''
In this situation, article 11.072 of the code of criminal procedure does not
apply because Applicant does not seek to challenge the validity of his
conviction but is merely seeking an out oftimeappeal. As conceded by
Assistant District Attorney Bimyard m his response to Applicant's filing
under Cause No. 30842B, the only time relief is authorized under Art.
11.072 of the Code of Criminal Procedure is when the applicant meets tiie
grounds set forth under Art. 11.072 Sec. 2(b). These groimds are:
      (b) At the time the application is filed, the applicant must be, or must
      have been, on community supervision, and the application must
      challenge the legal validity of:
      (1) the conviction for which or order in which community siqiervision
      was imposed, or
      (2) tiie conditions of community supervision.
In Ex parte McPhersoa 32 S.W.3d 860,861, the Court of Appeals held that
a habeas corpus application seeking an out-of-time appeal does not
challenge the conviction. Additionally, Applicant is not currently
challenging the conditions of commumty supervision. Since Applicant is
entitled to one appeal as of right, as mandated by the Supreme Court of the
United States in Douglas v. California, 372 U.S. 353 [83 S.Ct. 814,9
L.Ed.2d 811] (1963), and article 11.072 does not authorize that relief in this
situation, article 11.08 is the only remaining procedural avenue available
under habeas law through which Applicant can receive the required appeal.
Therefore, article 11.08 is the appropriate article under which this
application should be filed.
      In this case the distiict court has the authority and duty to grant an out
of time appeal in accordance with Texas Code of Criminal Procedure article
11.05. In Rodriguez w. Court of Appeals, Eighth Supreme Judicial Dist., 769
S.W.2d 554 (Tex. Crim. App. 1989), the Court stated,
      "We hold that the district court had jurisdiction to entertain the writ of
      habeas corpus, and applicant in this cause properly invoked that
      jurisdiction by filing his writ with the district court. Thus, the district
      court had jurisdiction of the habeas application. Since the district
      court had this jurisdiction, it had the authority to grant an out-of-time
      appeal or other relief, such as appointment of counsel or compilation
      of the record on E^peal."
With regard to jurisdiction. Article 5, § 8 of the Texas Constitution states:
      "^District Court jurisdiction consists of exclusive, appellate, and
      original jurisdiction of all actions, proceedings, and remedies, except
      in cases where exclusive, appellate, or original jurisdiction may be
      conferred by this Constitution or other law on some other court,
      tribunal, or administrative body. District Court judges shall have the
      power to issue writs necessary to enforce their jurisdiction. The
      District Court shall have appellate jurisdiction and general supervisory
      control over the County Commissioners Court, with such exceptions
      and under such regulations as may be prescribed by law."
Since tiiere is nothing in Article 11.08 that confers jimsdiction to any other
court, tiie District Court has the authority and duty to grant an out-of-tune
appeal.

      In conclusion. Applicant has shown that, through no fault of his own,
he was denied his right to appeal his conviction on count three under cause
number 30842. This constitutes a violation of his Fifth Amendment right
under the United States Constitution. Since Applicant does not seek to
challenge the validity of his conviction or terms or community supervision,
the only available procedural avenue through which relief can be granted is
article 11.08 of the Texas Code of Criminal Procedure. The Court of
Appeals has established through multiple rulings that article 11.08 can be
invoked in cases involvmg community supervisioa Article 11.05 of the
Texas Code of Criminal Procedure and Article 5, § 8 of the Texas
Constitution provide this district court with the jurisdiction and authority to
issue an out-of-time appeal.
      WHEREFORE, PREMISES CONSIDERED, Applicant Kelly James
McCarty, respectfiiUy prays that this Honorable Court:
      (1)   Conduct a hearing on the allegations contained in this
            Application.
      (2)   Afier notice and hearing, enter an Order granting Applicant
            relief by granting Applicant an out-of-time appeal.


                                     Respectfully submitted.




Kelly James McCarty
IHOakleafDr.
San Antonio TX 78209
Phone: (210)275-1875
Email: kjmcc09@gmail.com
STATE OF TEXAS                  §
COUNTY OF BEXAR                 §


      BEFORE ME, the undersigned authority, personally appeared Kelly
James McCarty, Applicant herein, after being duly sworn, stated upon oath
that he has read the foregoing Application for Writ of Habeas Corpus and it
is true and correct to the best of his knowledge and belief




     SWORN TO and subscribed before me on this 9^             day of
September, 2014.




         M                             Notary Public, State of Texas          _
                                       My Commission Expires: ^ ^ ' ^         ^




        km)
                       CERTIFICATE      OF    SERVICE

       I hereby certify that a true and correct copy of the foregoing
instrument has been delivered via certified mail, return receipt requested to
the office of Wiley B. McAfee, District Attorney, Bumet County District
Attorney's Office, Bumet, Texas,

      SIGNED this         day of September, 2014.
