                                  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.


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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.


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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.




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       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).




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      CONCLUSION

      The trial court’s judgment is affirmed and counsel’s motion to withdraw is granted.




                                                      Patrick A. Pirtle
                                                           Justice


Do not publish.




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