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James Thomas Norbert v. State ( 2018 )


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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