Kirk Wayne McBride v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-02-00186-CV

Kirk Wayne McBride , Appellant v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT NO. C2001-944B, HONORABLE CHARLES RAMSAY, JUDGE PRESIDING

Kirk Wayne McBride appeals from the district court=s order dismissing this cause pursuant to civil practice and remedies code sections 14.003, 14.005, and 14.006(f). Tex. Civ. Prac. & Rem. Code Ann. '' 14.003, .005, .006(f) (West 2003). McBride is serving a ninety-nine-year prison sentence for aggravated sexual assault imposed in Comal County cause number CR95-129. We will affirm the dismissal order.

In his original petition, McBride alleged causes of action seeking:

$ A ADeclaratory Judgment, Judgment, and a Judicial Acknowledgment@ that he is Athe lawful Holder in due course of the Acceptance of Value of the Birth Certificate which is the legal instrument for the Title of Ownership or Deed to@ KIRK WAYNE MCBRIDE. 1

$ A ADeclaratory Judgment, Judgment, [and] Judicial Acknowledgment@ that no contract Aunifying@ KIRK WAYNE MCBRIDE and Kirk Wayne McBride ever existed and that the AIndemnification Contract@ between McBride and MCBRIDE is valid and enforceable.2 $ A ADeclaratory Judgment, Judgment, and Judicial Acknowledgment@ making the United States Treasury the fiduciary for Kirk Wayne McBride and the account holder for KIRK WAYNE MCBRIDE for purposes of enforcing the Apromissory note@ and Acomposition deed of debenture@ executed by McBride and MCBRIDE on January 2, 2001.3

$ A ADeclaratory Judgment, Monetary Judgment, and a Judicial Acknowledgment@ that the State of Texas breached its Aimplied-in-law contract@ with Kirk Wayne McBride and KIRK WAYNE MCBRIDE under which the State surrendered its right to prosecute McBride and MCBRIDE after the limitations period expired.

$ A ADeclaratory Judgment, Monetary Judgment, and a Judicial Acknowledgment@ that the State of Texas and the United States breached their Aimplied-in-law contract@ with Kirk Wayne McBride and KIRK WAYNE MCBRIDE under which McBride and MCBRIDE would be prosecuted only by persons who had filed the constitutional oath of office.

After the State filed its motion to dismiss under chapter 14, McBride filed his first and second supplemental petitions. These supplemental petitions contain Asupplemental claims@ challenging the grounds for dismissal urged by the State and elaborating on the original petitions=s allegations regarding McBride=s contention that his prosecution for aggravated sexual assault was barred by limitations.4 A claim or cause of action brought by an inmate who files an affidavit or declaration of inability to pay costs may be dismissed if the court finds that the claim is frivolous. Tex. Civ. Prac. & Rem. Code Ann. ' 14.003(a)(2) (West 2003). In determining whether a claim is frivolous, the court may consider whether the claim=s realistic chance of ultimate success is slight, whether the claim has no arguable basis in law or fact, and whether the claim is substantially similar to a previous claim filed by the inmate. Id. ' 14.03(b). Having considered the allegations in McBride=s petitions and the arguments advanced in his brief on appeal, we conclude that the district court did not abuse its discretion by dismissing this cause as frivolous. We need not address McBride=s challenge to the other stated grounds for dismissal.

The order of dismissal is affirmed.

__________________________________________ Mack Kidd, Justice Before Justices Kidd, Patterson and Puryear

Affirmed

Filed: December 5, 2002

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