In district court, I have an 11.072 application seeking an out of time appeal on a probation case. The issue the defendant seeks to appeal is the restitution amount. There is a very strong Laches issue for the State, however I am concerned that the district judge will not agree. If the Trial Judge grants the out of time appeal, do I need to appeal the ruling on that issue separately or is a cross appeal issue that would be taken up with the defendants appeal? Any guidance would be greatly appreciated!
Posts: 260 | Location: Lampasas, Texas, USA | Registered: November 29, 2007
You have the right to appeal an 11.072 grant of relief directly, and that's how I would do it. I would be afraid of a cross-appeal being dismissed as moot, since he was already given the opportunity to appeal.
Posts: 1111 | Location: Waxahachie | Registered: December 09, 2004
I am not understanding this use of 11.072. It provides: "the application must challenge the legal validity of: (1) the conviction for which or order in which community supervision was imposed; or (2) the conditions of community supervision." The basis for an out-of-time appeal is neither of those things, but rather that counsel abandoned his client or failed to timely file a notice of appeal. And, if the defendant first attempted "to gain relief by filing a motion to amend the conditions of community supervision," as is required, then how did he not have notice that his desired appeal was in jeopardy? Justice Pemberton's opinion in Ex parte McCarty is the only one that makes any sense. If the trial court lacks jurisdiction (and it clearly does), then so does the court of appeals. Why is a defendant who accepts the initial terms of the probation contract not estopped? Is that not the very purpose behind the inclusion of sec. 3(a) of 11.072?
Despite Judge Richardson's interpretation of the statute in Valdez, 489 S.W.3d 462, I would now say the four judges joining in Presiding Judge Keller's opinion have correctly construed the scope of the statute as far as out-of-time appeals are concerned.This message has been edited. Last edited by: Martin Peterson,