James Thomas Norbert v. The State of Texas Appeal from 52nd District Court of Coryell County (memorandum opinion)
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IN THE TENTH COURT OF APPEALS No. 10-18-00064-CR JAMES THOMAS NORBERT, Appellant v. THE STATE OF TEXAS, Appellee From the 52nd District Court Coryell County, Texas Trial Court No. 17-24353 MEMORANDUM OPINION In an open plea before the Court, James Thomas Norbert pled guilty to and was convicted of aggravated assault with a deadly weapon. See TEX. PENAL CODE ANN. § 22.02(b) (West 2011). After a sentencing hearing, Norbert was sentenced to 15 years in prison. Norbert’s appellate attorney filed a motion to withdraw and an Anders brief in support of the motion to withdraw, asserting that the appeal presents no issues of arguable merit. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Counsel advised Norbert that counsel had filed the motion and brief pursuant to Anders and provided Norbert a copy of the record, advised Norbert of his right to review the record, and advised Norbert of his right to submit a response on his own behalf. Norbert did not submit a response. Counsel asserts in the Anders brief that counsel has made a thorough review of the entire record, including voir dire, the plea admonishments, the indictment, the assistance of counsel, the sufficiency of the evidence, the court’s judgment, the sentencing procedure, limitations, and the punishment. After the review, counsel concludes there is no non-frivolous issue to raise in this appeal. Counsel's brief evidences a professional evaluation of the record for error, and we conclude that counsel performed the duties required of appointed counsel. See Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); see also In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008). Upon the filing of an Anders brief, as the reviewing appellate court, it is our duty to independently examine the record to decide whether counsel is correct in determining that an appeal is frivolous. See Anders, 386 U.S. at 744; Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Arguments are frivolous when they "cannot conceivably persuade the court." McCoy v. Court of Appeals, 486 U.S. 429, 436, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988). Norbert v. State Page 2 Having carefully reviewed the entire record, the Anders brief, and Norbert’s response, we have determined that this appeal is frivolous. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). Accordingly, we affirm the trial court’s Judgment of Conviction by Court—Waiver of Jury Trial signed on January 29, 2018. Should Norbert wish to seek further review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or must file a pro se petition for discretionary review. No substitute counsel will be appointed. Any petition for discretionary review must be filed within thirty days from the date of this opinion or the last timely motion for rehearing or timely motion for en banc reconsideration has been overruled by this Court. See TEX. R. APP. P. 68.2. Any petition and all copies of the petition for discretionary review must be filed with the Clerk of the Court of Criminal Appeals. See TEX. R. APP. P. 68.3. (Tex. Crim. App. 1997, amended eff. Sept. 1, 2011). Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4. See also In re Schulman, 252 S.W.3d at 409 n.22. Counsel's motion to withdraw from representation of Norbert is granted, and counsel is discharged from representing Norbert. Notwithstanding counsel’s discharge, counsel must send Norbert a copy of our decision, notify him of his right to file a pro se petition for discretionary review, and send this Court a letter certifying counsel's compliance with Texas Rule of Appellate Procedure 48.4. TEX. R. APP. P. 48.4; see also In Norbert v. State Page 3 re Schulman, 252 S.W.3d at 409 n.22. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed August 8, 2018 Do not publish [CR25] Norbert v. State Page 4
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