Curtis Wayne Kingham v. State ( 2019 )


Menu:
  •                                   In The
    Court of Appeals
    Seventh District of Texas at Amarillo
    ________________________
    No. 07-19-00112-CR
    ________________________
    CURTIS WAYNE KINGHAM, APPELLANT
    V.
    THE STATE OF TEXAS, APPELLEE
    On Appeal from the 47th District Court
    Potter County, Texas
    Trial Court No. 76,303-A-CR; Honorable Dan L. Schaap, Presiding
    October 25, 2019
    MEMORANDUM OPINION
    Before QUINN, C.J., and PIRTLE and PARKER, JJ.
    Pursuant to an open plea of guilty, Appellant, Curtis Wayne Kingham, was
    convicted by the trial court of possession of methamphetamine in an amount of one gram
    or more but less than four grams,1 enhanced by two prior felonies,2 and assessed a
    sentence of twenty-five years confinement. In presenting this appeal, counsel has filed
    an Anders3 brief in support of a motion to withdraw. We affirm and grant counsel’s motion
    to withdraw.
    In support of her motion to withdraw, counsel certifies she has conducted a
    conscientious examination of the record, and in her opinion, it reflects no potentially
    plausible basis for reversal of Appellant’s conviction. Anders v. California, 
    386 U.S. 738
    ,
    744-45, 
    87 S. Ct. 1396
    , 
    18 L. Ed. 2d 493
    (1967); In re Schulman, 
    252 S.W.3d 403
    , 406
    (Tex. Crim. App. 2008).              Counsel candidly discusses why, under the controlling
    authorities, the record supports that conclusion. See High v. State, 
    573 S.W.2d 807
    , 813
    (Tex. Crim. App. 1978). Counsel has demonstrated that she has complied with the
    requirements of Anders and In re Schulman by (1) providing a copy of the brief to
    Appellant, (2) notifying him of the right to file a pro se response if he desired to do so, and
    (3) informing him of the right to file a pro se petition for discretionary review. In re
    
    Schulman, 252 S.W.3d at 408
    .4 By letter, this court granted Appellant an opportunity to
    1   TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West 2017).
    2 TEX. PENAL CODE ANN. § 12.42(d) (West 2019) (increasing range of punishment to twenty-five to
    ninety-nine years confinement). An offense “punished as” a higher offense raises the level of punishment,
    not the degree of the offense. Oliva v. State, 
    548 S.W.3d 518
    , 526-27 (Tex. Crim. App. 2018).
    3   Anders v. California, 
    386 U.S. 738
    , 
    87 S. Ct. 1396
    , 
    18 L. Ed. 2d 493
    (1967).
    4  Notwithstanding that Appellant was informed of his right to file a pro se petition for discretionary
    review upon execution of the Trial Court’s Certification of Defendant’s Right of Appeal, counsel must comply
    with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within five days
    after this opinion is handed down, send Appellant a copy of the opinion and judgment together with
    notification of his right to file a pro se petition for discretionary review. In re 
    Schulman, 252 S.W.3d at 408
    n.22, 411 n.35. The duty to send the client a copy of this court’s decision is an informational one, not a
    representational one. It is ministerial in nature, does not involve legal advice, and exists after the court of
    appeals has granted counsel’s motion to withdraw. 
    Id. at 411
    n.33.
    2
    exercise his right to file a response to counsel’s brief, should he be so inclined. 
    Id. at 409
    n.23. Appellant did not file a response. Neither did the State favor us with a brief.
    BACKGROUND
    Appellant’s current legal troubles began in February 2018, when an officer was
    dispatched to a call about an individual who was passed out behind the wheel of a
    vehicle.5      That individual was Appellant.               He was arrested for possession of drug
    paraphernalia.          A subsequent search at the jail revealed a baggie of crystal
    methamphetamine in one of the pockets of his hoodie.6 Appellant was released on bond.
    A former police officer testified that in March 2018, he responded to a trespass in
    progress at a motel involving Appellant. He was familiar with Appellant from a previous
    trespass warning. When he tracked down Appellant, he arrested him after he found a
    pipe used for methamphetamine. Appellant was more thoroughly searched at the sheriff’s
    department where a small baggie of methamphetamine was found in the coin pocket of
    his pants. Appellant was again released on bond.
    In May 2018, an officer was dispatched to a hit and run accident. The person who
    reported the accident provided the officer with a description of the vehicle involved. The
    officer observed the vehicle was stopped just down the road.7 The driver was Appellant.
    5   At the time of trial, Appellant also had two pending charges in Randall County.
    6 Defense counsel’s hearsay objection to the State’s laboratory report exhibit was withdrawn after
    counsel was reminded that part of the open plea agreement was that no expert witness would be presented.
    7   The officer believed the vehicle ran out of gas.
    3
    While verifying information, the officer discovered that Appellant had outstanding local
    warrants and arrested him on that basis. Appellant was again released on bond.
    In July 2018, Appellant was stopped for a traffic violation. This time the officer who
    made the stop observed a pipe used for methamphetamine in plain view near the driver’s
    seat. Appellant consented to a search of his person which revealed two plastic baggies
    containing methamphetamine. Appellant was again arrested.
    The State’s final witness at trial was a fingerprint expert. Through his testimony,
    he linked Appellant by fingerprint comparison to numerous other offenses, including the
    two prior felonies alleged as enhancements in the charging instrument.
    After being properly admonished, Appellant testified in his own defense. He stated
    that he was in his mid-fifties, a veteran of Desert Storm, and he was the proprietor of his
    own construction business. He testified that when he returned from the war, he was
    diagnosed with post-traumatic stress disorder. He also suffers from a bipolar disorder.
    He has dealt with emotional issues involving his family including separate accidents that
    took the lives of his brother and father. He admitted to abusing controlled substances as
    a coping mechanism but denied having an alcohol problem.
    During his testimony, Appellant acknowledged the two prior felonies used to
    enhance his punishment, a felony conviction for driving while intoxicated and a conviction
    for attempted sexual assault.     The trial court also questioned him about the prior
    convictions.
    4
    During closing arguments, the State expressed empathy with Appellant’s
    emotional past but based on his criminal history, recommended that the trial court find the
    enhancement allegations to be true and assess the minimum sentence of twenty-five
    years confinement.     Defense counsel argued for deferred adjudication and a drug
    rehabilitation program.
    After a recess to reflect on the evidence, the trial court found Appellant guilty. It
    also found both enhancement allegations to be true. Punishment was assessed at the
    minimum of twenty-five years confinement for a double-enhanced felony conviction. No
    fine was imposed.
    ANALYSIS
    By the Anders brief, counsel evaluates the underlying proceedings and concludes
    that reversible error is not presented. She also concludes that the punishment assessed
    is within the range authorized by section 12.42(d) of the Texas Penal Code.
    We too have independently examined the record to determine whether there are
    any non-frivolous issues which might support the appeal. See Penson v. Ohio, 
    488 U.S. 75
    , 80, 
    109 S. Ct. 346
    , 
    102 L. Ed. 2d 300
    (1988); In re 
    Schulman, 252 S.W.3d at 409
    ;
    Stafford v. State, 
    813 S.W.2d 503
    , 511 (Tex. Crim. App. 1991). We have found no such
    issues. See Gainous v. State, 
    436 S.W.2d 137
    , 138 (Tex. Crim. App. 1969). After
    reviewing the record and counsel’s brief, we agree with counsel that there is no plausible
    basis for reversal of Appellant’s conviction. See Bledsoe v. State, 
    178 S.W.3d 824
    , 826-
    27 (Tex. Crim. App. 2005).
    5
    CONCLUSION
    The trial court’s judgment is affirmed and counsel’s motion to withdraw is granted.
    Patrick A. Pirtle
    Justice
    Do not publish.
    6
    

Document Info

Docket Number: 07-19-00112-CR

Filed Date: 10/25/2019

Precedential Status: Precedential

Modified Date: 10/28/2019