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

___________________________ No. 02

- 22

- 00013

- CR

___ ________ ________ _______ _

On Appeal from the 355th Distr ict Court Hood County, Texas Trial Court No. CR14472 Before Sudderth, C.J.; Kerr and Walker, JJ.

M emorandum Opinion by Justice Kerr 

### R OBERT 

### W ES LEY 

### K ITCHING 

### , Appellant
V 

### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION After Robert Wesley Kitching plea d ed guilty to fou r count s o f a six

- co unt indic tment and tried pun ishme nt to a jury, the jury assessed the following senten ces: 99 year s ’ confinement for aggravated sexual assault ; 2 0 y ear s ’ confinement for
atte mpted aggravated sexual assault ; and 15 years ’ confi nement f or eac h of 2 ind ecenc y - with

- a - child offenses
. See Tex. P enal Code Ann. § 15.01 (attempt) , § 21.11(a) (1) (ind ecency), § 22.021( a )(1)(B), 2( B ) ( aggravated sexual assault)
. T he jury also assessed a $10,000 fine for each of the fo ur count s . The trial court ordered the f our sentences to run concurrently. 1 Kitching appeale d. 2

1 The trial court signed four jud g ments in the same cause number.
2 Kitching plea ded gui lty according to a charge bargain with th e State ; charge bargain s bar most app eal s . See Tex. R. App. P. 25.2(a) (2) (providing that in plea

bargain case, appellant can appeal only (1) matters raised by w r itten mo ti on and ruled on before trial, (2) wi th the trial court ’ s permission, or (3) as expressly permitted by st atute) ; Kenned y v . State , 297 S.W.3d 338, 342 (Tex. Crim. App. 2009)
. Although the trial judge here mark ed on the appeal certificatio n s that K itching had wa ived his righ t to appeal guilt, the trial judg e also marked that Kitching had not entered into a p lea bargain for “ punishment. ” I n light of th e certification s , the trial judge ’ s assurance to Kitching th at he had “ an abs olute right to a ppeal, ” and the tria l judge ’ s immediate appointment o f an appella te attorney at the conclusion of trial , we det ermine that the trial judge impliedly gave Kitching permission to appeal punishment matters. See, e.g. , Benavides v. State , No s . 0 2

- 21

- 00168

- CR, 02

- 21

- 00169

- CR, 2 022 WL 15053332 , at *1 (Tex. App.

— Fort Worth Oct. 27, 2022, no pet.) (per curiam) (mem. op., not designated for public ation); Franklin v. State , No. 02

- 20

- 0015 9

- CR, 2022 WL 803840, at *1 ( Tex. App.

— Fort Worth Mar. 17, 2022, no pet.) (mem. op., n ot desig nated for public ation) ; Craven v. St ate , Nos . 02

- 11

- 00089

- CR, 02

- 11

- 0 0090

- CR, 2012 WL 2036449, at *1 (Tex. App.

— Fort Wort h June 7, 2012, pet. ref ’ d) (per c uriam) (mem. op., not designated for publication)
. But cf. Marsh v. State , Nos. 02

- 21

- 00150

- C R, 02

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- 00151

- CR, 2023 WL 2178 406, at *4

– 5 (Tex. App.

–– Fort Worth Feb. 23, 2 023, no pet. h.) (mem. op. , not designated for p ubli cation) ( concluding from different facts3 Kitching ’ s court

- appointed appellate attor ney has fi led a motion to withdraw as counsel and a br ief in support of that motion. See Anders v. Califo rnia , 3 86 U.S. 738, 744

– 45, 87 S. Ct. 1396, 1400 (196 7). Counsel ’ s brief and motion meet the requirements of Anders , which requires presenting a profes sional eva luation of the record and demonstrating why there are no arguable grounds for r elief. Id. , 87 S . Ct . a t 1400. Kitch ing ’ s counsel provided him with a copy of the Anders brief and her motion to withdraw , notified him of his right to file a pr o se r es ponse and to file a petition for discretionary review in the Court of Criminal Appeals, and provide d hi m with a form

m otion t o access the appellate record
. T he trial court provi ded Kitching with a copy of the appellate record , and he filed a brief respon se stating th at although he di d “ not wish to pursue the [a ]ppeal for error s, ” he wanted this c ourt “ 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 indepe nden tly ex amine the record
. S ee Stafford v. State , 813 S.W.2 d 5 03, 511 (Tex. Cri m. 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 d etermined that the appeal is wholl y frivolo us and without merit. Our i ndependent review of the record r eveals nothing that trial judge ’ s ha ndwritte n notations on appeal certification did not indicate perm ission to appeal ). B ut to provi de guida nc e for th ose who pr e p are appeal certifica t i ons , we not e that the appeal

- cer tification form pro vides a specific choice for the trial judge in such a circ umstance: that the case “ is a plea

- bargain case, but the trial c our t has given p ermission to ap peal, an d the defe ndant ha s the right of appeal
. ”4 that might arguably support the appea l. 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). Therefo re, w e grant counsel ’ s motion to withdraw and af firm the trial
court ’ s judgment
.

/s/ Elizabeth Kerr Elizabeth Kerr Justice Do No t Publish Tex. R. App. P. 47.2(b) Del ivered : April 27, 2023