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 
2

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.
3

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.
4

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.
5

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).
6

CONCLUSION

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

 Patrick A. Pirtle

 Justice

Do not publish.