James Thomas Norbert v. State

• Court: Court of Appeals of Texas
• Decided: August 8, 2018
• Docket: 10-18-00064-CR
• Status: Published

Opinion

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