Hilary Dane Norris v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 24, 2022
• Docket: 13-21-00205-CR
• Status: Published

Opinion

NUMBER 13-21-00205-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

HILARY DANE NORRIS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 36th District Court of Aransas County, Texas.

MEMORANDUM OPINION

Before Justices Longoria, Hinojosa, and Silva Memorandum Opinion by Justice Hinojosa

Appellant Hilary Dane Norris appeals his conviction for possession of a controlled

substance in penalty group one in an amount less than one gram, a state jail felony. See

TEX. HEALTH & SAFETY CODE ANN. § 481.115(b). Norris entered an open plea of guilty to

the offense. Following a punishment hearing, the trial court sentenced Norris to eighteen months of imprisonment in the State Jail Division of the Texas Department of Criminal

Justice. Norris’s court-appointed counsel has filed an Anders brief stating that there are

no arguable grounds for appeal. See Anders v. California, 386 U.S. 738, 744 (1967). We

affirm.

I. ANDERS BRIEF

In his brief, Norris’s counsel states that he has diligently reviewed the entire record

and has found no non-frivolous grounds for appeal. See id. Counsel’s brief meets the

requirements of Anders as it presents a professional evaluation demonstrating why there

are no arguable grounds to advance on appeal. See In re Schulman, 252 S.W.3d 403,

406 n.9 (Tex. Crim. App. 2008) (“In Texas, an Anders brief need not specifically advance

‘arguable’ points of error if counsel finds none, but it must provide record references to

the facts and procedural history and set out pertinent legal authorities.” (citing Hawkins v.

State, 112 S.W.3d 340, 343–44 (Tex. App.—Corpus Christi–Edinburg 2003, no pet.)));

Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel

Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 318–19 (Tex. Crim. App. 2014), Norris’s

counsel carefully discussed why, under controlling authority, there is no reversible error

in the trial court’s judgment. Counsel has informed this Court in writing that he has:

(1) notified Norris that counsel has filed an Anders brief and a motion to withdraw;

(2) provided Norris with copies of both pleadings; (3) informed Norris of his rights to file a

pro se response, 1 review the record preparatory to filing that response, and seek

1The Texas Court of Criminal Appeals has held that “the pro se response need not comply with the rules of appellate procedure in order to be considered. Rather, the response should identify for the court 2 discretionary review if the court of appeals concludes that the appeal is frivolous; and

(4) provided Norris with a form motion for pro se access to the appellate record, lacking

only Norris’s signature and the date and including the mailing address for the court of

appeals, with instructions to file the motion within ten days. See Anders, 386 U.S. at 744;

Kelly, 436 S.W.3d at 318–19; see also In re Schulman, 252 S.W.3d at 409 n.23. An

adequate amount of time has passed, and Norris has not filed a pro se response.

II. INDEPENDENT REVIEW

Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.

75, 80 (1988). We have reviewed the entire record and counsel’s brief and found nothing

that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 827–28

(Tex. Crim. App. 2005) (“Due to the nature of Anders briefs, by indicating in the opinion

that it considered the issues raised in the briefs and reviewed the record for reversible

error but found none, the court of appeals met the requirement of Texas Rule of Appellate

Procedure 47.1.”); Stafford, 813 S.W.2d at 509.

III. MOTION TO WITHDRAW

In accordance with Anders, Norris’s attorney has asked this Court for permission

to withdraw as counsel for appellant. See Anders, 386 U.S. at 744; see also In re

Schulman, 252 S.W.3d at 408 n.17 (“[I]f an attorney believes the appeal is frivolous, he

must withdraw from representing the appellant. To withdraw from representation, the

those issues which the indigent appellant believes the court should consider in deciding whether the case presents any meritorious issues.” In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)). 3 appointed attorney must file a motion to withdraw accompanied by a brief showing the

appellate court that the appeal is frivolous.” (citing Jeffery v. State, 903 S.W.2d 776, 779–

80 (Tex. App.—Dallas 1995, no pet.) (citations omitted))). We grant counsel’s motion to

withdraw. Within five days of the date of this Court’s opinion, counsel is ordered to send

a copy of this opinion and this Court’s judgment to Norris and to advise him of his right to

file a petition for discretionary review. 2 See TEX. R. APP. P. 48.4; see also In re Schulman,

252 S.W.3d at 411 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).

IV. CONCLUSION

We affirm the trial court’s judgment.

LETICIA HINOJOSA Justice

Do not publish. TEX. R. APP. P. 47.2 (b).

Delivered and filed on the 24th day of March, 2022.

2 No substitute counsel will be appointed. Should Norris 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 file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing or timely motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the clerk of the Court of Criminal Appeals. See id. R. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. R. 68.4. 4