Khiry Deshawn Taylor v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 11, 2023
• Docket: 02-21-00208-CR
• Status: Published

Opinion

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,

1 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).

2 744, 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 2

of the same complaints he raised in his initial response: ineffective assistance of counsel.

3 /s/ Dana Womack

Dana Womack Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: May 11, 2023