Robert Wesley Kitching v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00013-CR
___________________________
ROBERT WESLEY KITCHING, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 355th District Court
Hood County, Texas
Trial Court No. CR14472
Before Sudderth, C.J.; Kerr and Walker, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
After Robert Wesley Kitching pleaded guilty to four counts of a six-count
indictment and tried punishment to a jury, the jury assessed the following sentences:
99 years’ confinement for aggravated sexual assault; 20 years’ confinement for
attempted aggravated sexual assault; and 15 years’ confinement for each of 2
indecency-with-a-child offenses. See Tex. Penal Code Ann. § 15.01(attempt), § 21.11(a)(1) (indecency), § 22.021(a)(1)(B), 2(B) (aggravated sexual assault).
The jury also assessed a $10,000 fine for each of the four counts. The trial court
ordered the four sentences to run concurrently.1 Kitching appealed.2
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The trial court signed four judgments in the same cause number.
2
Kitching pleaded guilty according to a charge bargain with the State; charge
bargains bar most appeals. See Tex. R. App. P. 25.2(a)(2) (providing that in plea-
bargain case, appellant can appeal only (1) matters raised by written motion and ruled
on before trial, (2) with the trial court’s permission, or (3) as expressly permitted by
statute); Kennedy v. State, 297 S.W.3d 338, 342 (Tex. Crim. App. 2009). Although the
trial judge here marked on the appeal certifications that Kitching had waived his right
to appeal guilt, the trial judge also marked that Kitching had not entered into a plea
bargain for “punishment.” In light of the certifications, the trial judge’s assurance to
Kitching that he had “an absolute right to appeal,” and the trial judge’s immediate
appointment of an appellate attorney at the conclusion of trial, we determine that the
trial judge impliedly gave Kitching permission to appeal punishment matters. See, e.g.,
Benavides v. State, Nos. 02-21-00168-CR, 02-21-00169-CR, 2022 WL 15053332, at *1
(Tex. App.—Fort Worth Oct. 27, 2022, no pet.) (per curiam) (mem. op., not
designated for publication); Franklin v. State, No. 02-20-00159-CR, 2022 WL 803840,
at *1 (Tex. App.—Fort Worth Mar. 17, 2022, no pet.) (mem. op., not designated for
publication); Craven v. State, Nos. 02-11-00089-CR, 02-11-00090-CR, 2012 WL
2036449, at *1 (Tex. App.—Fort Worth June 7, 2012, pet. ref’d) (per curiam) (mem.
op., not designated for publication). But cf. Marsh v. State, Nos. 02-21-00150-CR, 02-
21-00151-CR, 2023 WL 2178406, at *4–5 (Tex. App.––Fort Worth Feb. 23, 2023, no
pet. h.) (mem. op., not designated for publication) (concluding from different facts
2
Kitching’s court-appointed appellate attorney has filed a motion to withdraw as
counsel and a brief in support of that motion. See Anders v. California, 386 U.S. 738,
744–45, 87 S. Ct. 1396, 1400 (1967). Counsel’s brief and motion meet the
requirements of Anders, which requires presenting a professional evaluation of the
record and demonstrating why there are no arguable grounds for relief. Id., 87 S. Ct. at
1400. Kitching’s counsel provided him with a copy of the Anders brief and her motion
to withdraw, notified him of his right to file a pro se response and to file a petition for
discretionary review in the Court of Criminal Appeals, and provided him with a form
motion to access the appellate record. The trial court provided Kitching with a copy
of the appellate record, and he filed a brief response stating that although he did “not
wish to pursue the [a]ppeal for errors,” he wanted this court “to look into [his]
sentence . . . for a reduction of time.” The State did not file a brief or other response.
We have fulfilled our duty to independently examine the record. See Stafford v.
State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v. State, 904 S.W.2d 920, 923
(Tex. App.—Fort Worth 1995, no pet.); see also Penson v. Ohio, 488 U.S. 75, 82–83, 109
S. Ct. 346, 351 (1988). After doing so, we have determined that the appeal is wholly
frivolous and without merit. Our independent review of the record reveals nothing
that trial judge’s handwritten notations on appeal certification did not indicate
permission to appeal). But to provide guidance for those who prepare appeal
certifications, we note that the appeal-certification form provides a specific choice for
the trial judge in such a circumstance: that the case “is a plea-bargain case, but the trial
court has given permission to appeal, and the defendant has the right of appeal.”
3
that might arguably support the appeal. See Bledsoe v. State, 178 S.W.3d 824, 827–28
(Tex. Crim. App. 2005); see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex. Crim.
App. 2006). Therefore, we grant counsel’s motion to withdraw and affirm the trial
court’s judgment.
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: April 27, 2023
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