Kirk, Ex Parte Bruce Albert

• Court: Court of Criminal Appeals of Texas
• Decided: June 8, 2005
• Docket: AP-75,189
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,189 EX PARTE BRUCE ALBERT KIRK, Applicant

ON APPLICATION FOR WRIT OF HABEAS CORPUS

CAUSE NUMBER 91575

IN THE CRIMINAL DISTRICT COURT OF JEFFERSON COUNTY

Per curiam.

O P I N I O N

This is an application for a writ of habeas corpus which was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Article 11.07, Section 3 of the Texas Code of Criminal Procedure. Ex Parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of failing to comply with sex offender registration requirements and sentenced to two years in prison. Applicant's notice of appeal to the Beaumont Court of Appeals was dismissed for want of jurisdiction. Kirk v. State, No. 09-04-249-CR (Tex. App. - Beaumont July 22, 2004).

Applicant claims that he was denied the right to appeal. In its findings of fact and conclusions of law the trial court concludes, inter alia, that Applicant should have been certified the right to appeal because the appeal was based on written pretrial motions filed and ruled on before trial, and Applicant did not waive his right to appeal in the plea bargain agreement.

Habeas corpus relief is granted, in part, and Applicant is granted leave to file an out-of-time notice of appeal from his conviction in cause number 91575 in the Criminal District Court of Jefferson County, Texas. The proper remedy in a case such as this is to return Applicant to the point at which he can give notice of appeal. For purposes of the Texas Rules of Appellate Procedure, all time limits shall be calculated as if the conviction had been entered on the day that the mandate of this Court issues. We hold that Applicant, should he desire to prosecute an appeal, must take affirmative steps to see that notice of appeal is given within thirty days after the mandate of this Court has issued.

Applicant's remaining allegations are dismissed. Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).

DELIVERED: June 8, 2005

DO NOT PUBLISH