Khiry Deshawn Taylor v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00208-CR
___________________________
KHIRY DESHAWN TAYLOR, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 30th District Court
Wichita County, Texas
Trial Court No. 61,662-A
Before Womack, Wallach, and Walker, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
Appellant Khiry Deshawn Taylor appeals his conviction and twenty-year
sentence of confinement for second-degree-felony aggravated assault with a deadly
weapon. See Tex. Penal Code Ann. §§ 12.33(a), 22.02(a)(2), (b). Taylor pleaded guilty
without an agreement on punishment.1 The trial court included a deadly-weapon
finding in the judgment but waived the imposition of court costs.
On appeal, Taylor’s counsel has filed a motion to withdraw and a brief in which
he argues that the appeal is frivolous. Counsel’s motion and brief meet the
requirements of Anders v. California by presenting a professional evaluation of the
record demonstrating why there are no arguable grounds for relief. See 386 U.S. 738,
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The trial court’s certification of Taylor’s right to appeal indicates that this “is
not a plea-bargain case and [that Taylor] has the right of appeal to sentencing.” But
Taylor was originally charged with a first-degree felony, and the clerk’s and reporter’s
records show that Taylor pleaded guilty to the lesser-included second-degree felony
pursuant to an agreement with the State. Therefore, the State and Taylor entered into
a charge bargain, to which Rule 25.2(a)(2) applies. See Tex. R. App. P. 25.2(a)(2);
Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003); Harper v. State,
567 S.W.3d 450, 454–55 (Tex. App.––Fort Worth 2019, no pet.). Nevertheless,
(1) because the trial judge told Taylor at the close of trial, “I will tell you that because
of the nature of these circumstances today that you do have the right to appeal,” and
(2) because the trial court indicated in the appeal certification that Taylor could appeal
“sentencing,” we conclude that the trial judge impliedly gave Taylor 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). 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.) (mem. op., not designated for publication) (concluding from
different facts that trial judge’s handwritten notations on appeal certification did not
indicate permission to appeal).
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744, 87 S. Ct. 1396, 1400 (1967). Additionally, in compliance with Kelly v. State,
counsel provided Taylor with copies of his brief and motion to withdraw, and he
informed Taylor of his right to file a pro se response, to review the record, and to
seek discretionary review pro se should this court deny relief. See 436 S.W.3d 313, 319
(Tex. Crim. App. 2014). Taylor filed a pro se response, but the State declined to file a
brief and instead filed a letter in which it agreed with appointed counsel that the
appeal is frivolous.2
After an appellant’s court-appointed counsel fulfills the requirements of Anders
and files a motion to withdraw on the ground that the appeal is frivolous, this court is
obligated to undertake an independent examination of the record to see if there is any
arguable ground that may be raised on his behalf. See Stafford v. State, 813 S.W.2d 503,
511 (Tex. Crim. App. 1991). Only then may we grant counsel’s motion to withdraw.
See Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988).
After carefully reviewing the record, counsel’s brief, and Taylor’s pro se
responses, we agree with counsel that this appeal is wholly without merit; we have
found nothing in the record that might arguably support the appeal. See Bledsoe v.
State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005). Accordingly, we grant
counsel’s motion to withdraw and affirm the trial court’s judgment.
Taylor also filed a pro se response to the State’s letter, in which he raised one
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of the same complaints he raised in his initial response: ineffective assistance of
counsel.
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/s/ Dana Womack
Dana Womack
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: May 11, 2023
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