David Kirby v. State

• Court: Court of Appeals of Texas
• Decided: December 31, 2015
• Docket: 11-15-00300-CR
• Status: Published

Opinion

Opinion filed December 31, 2015

In The

Eleventh Court of Appeals ____________

No. 11-15-00300-CR ____________

DAVID KIRBY, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 244th District Court Ector County, Texas Trial Court Cause No. C-44,870

MEMORANDUM OPINION Appellant, David Kirby, pleaded guilty to the offense of attempted failure to comply with sex offender registration, a state jail felony. The trial court assessed Appellant’s punishment in accordance with the terms of his plea agreement at confinement for nine months in a state jail facility. We dismiss the appeal. This court notified Appellant by a letter dated December 14, 2015, that we had received information from the trial court that Appellant waived his right of appeal in this cause. The trial court certified that Appellant waived his right of appeal. See TEX. R. APP. P. 25.2. The trial court’s certification was signed by Appellant, his trial attorney, and the judge of the trial court. We requested that Appellant respond and show grounds to continue the appeal. Appellant’s attorney on appeal has filed a response in which he states that he was not the attorney at trial but that Appellant may have entered into a conditional plea or reserved the right to appeal an adverse ruling on a motion to dismiss. A review of the documents on file in this court reflect otherwise. Rule 25.2(d) provides that an appeal must be dismissed absent a certification that shows that the defendant has a right of appeal. TEX. R. APP. P. 25.2(d). The trial court certified that Appellant waived the right of appeal. Documents on file in this court reflect that Appellant waived various rights, including his right of appeal. These waivers were signed by Appellant, his trial attorney, and the trial judge. Among the waivers was a “WAIVER OF RIGHT TO APPEAL” in which Appellant affirmatively, “voluntarily, knowingly and intelligently WAIVE[D] [HIS] RIGHT TO APPEAL.” Appellant’s waiver of his right to appeal expressly included “matters raised by written motion filed prior to trial.” The documents on file in this case support the trial court’s certification and show that Appellant waived his right of appeal. See Dears v. State, 154 S.W.3d 610 (Tex. Crim. App. 2005). Accordingly, we must dismiss this appeal without further action. TEX. R. APP. P. 25.2(d); Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006). This appeal is dismissed.

PER CURIAM December 31, 2015 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J., Willson, J., and Bailey, J.