Kurtis Staley v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 29, 2023
• Docket: 02-22-00219-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-22-00218-CR No. 02-22-00219-CR ___________________________

KURTIS STALEY, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 362nd District Court Denton County, Texas Trial Court Nos. F21-3071-362, F21-84-362

Before Sudderth, C.J.; Womack and Walker, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION

Appellant Kurtis Staley entered an open plea of guilty to first-degree-felony

possession of a controlled substance with intent to deliver in trial court cause

numbers F21-3071-362 (appellate cause number 02-22-00218-CR) and F21-84-362

(appellate cause number 02-22-00219-CR). See Tex. Health & Safety Code Ann.

§ 481.112(d) (stating that an offense is a first-degree felony if the amount of the

controlled substance by aggregate weight, including adulterants or dilutants, is four

grams or more but less than 200 grams). The trial court sentenced Staley to twenty

years’ confinement in each case, to be served concurrently. See Tex. Penal Code Ann.

§ 12.32 (stating that first-degree-felony punishment range is from five to ninety-nine

years or life and up to a $10,000 fine).

Staley’s court-appointed appellate counsel has filed a motion to withdraw as

counsel and a brief stating that counsel has determined, after examining the appellate

record, that no arguable grounds for appeal exist. 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 to present a professional evaluation of the entire record in the

case demonstrating why there are no arguable grounds for relief. See id., 87 S. Ct. at

1400. Staley filed a pro se response. The State declined to file a response.

We have independently examined the record as is our duty upon the filing of an

Anders brief. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); see also

Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988). After carefully

2 reviewing the record, counsel’s brief, and Staley’s pro se response, we have

determined that the judgments incorrectly state that Staley entered a plea bargain.

The record reflects that Staley entered an open plea of guilty in each case with no

agreement as to punishment. We correct the judgments to reflect that in each case,

Staley entered an open plea of guilty with no agreement as to punishment.

Further, the time-payment fee in the bill of costs in each case has been

prematurely assessed. See Dulin v. State, 620 S.W.3d 129, 129 (Tex. Crim. App. 2021)

(holding that a prematurely assessed time-payment fee must be struck because a

defendant’s appeal suspends the duty to pay court costs and therefore suspends the

running of the clock for the purposes of the time-payment fee). We will strike the

time-payment fees without prejudice, however, because they may be assessed if Staley

fails to completely pay his court costs more than thirty days after the issuance of the

appellate mandate in each case. See id. at 133.

Except for the modifications above, we agree with counsel that these appeals

are wholly frivolous and without merit. Our independent review of the record reveals

nothing further that might arguably support the appeals. 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). Accordingly, we grant counsel’s motion to withdraw

and modify the judgment and bill of costs in each case to reflect an open plea of guilty

with no agreement as to punishment and to strike the premature time-payment fee.

3 We affirm the judgments as modified. See Tex. R. App. P. 43.2(b); Bray v. State,

179 S.W.3d 725, 729 (Tex. App.—Fort Worth 2005, no pet.).

/s/ Dana Womack

Dana Womack Justice

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

Delivered: June 29, 2023