Jimmy Lawson Thornton v. State

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-13-00050-CR ________________________

JIMMY LAWSON THORNTON, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 47th District Court Potter County, Texas Trial Court No. 65,279-A; Honorable Dan L. Schaap, Presiding

February 11, 2014

MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.

Pursuant to an open plea of guilty, Appellant, Jimmy Lawson Thornton, was

convicted of driving while intoxicated, third or more,1 and sentenced to ten years

1 TEX. PENAL CODE ANN. § 49.09(b)(2) (West 2011). confinement. In presenting this appeal,2 counsel has filed an Anders3 brief in support

of a motion to withdraw. We affirm the judgment and grant counsel=s motion.

In support of his motion to withdraw, counsel certifies he has conducted a

conscientious examination of the record and, in his opinion, the record reflects no

potentially plausible basis to support an appeal. Anders v. California, 386 U.S. 738,

744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406

(Tex. Crim. App. 2008). Counsel candidly discusses why, under the controlling

authorities, the appeal is frivolous. See High v. State, 573 S.W.2d 807, 813 (Tex. Crim.

App. 1978). Counsel has demonstrated that he has complied with the requirements of

Anders and In re Schulman by (1) providing a copy of the brief to Appellant, (2) notifying

him of his right to file a pro se response if he desired to do so, and (3) informing him of

his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at

408.4 By letter, this Court granted Appellant an opportunity to exercise his right to file a

response to counsel=s brief, should he be so inclined. Id. at 409 n.23. Appellant did not

file a response to the Anders brief. Neither did the State favor us with a brief.

2 Appellant was sentenced on July 25, 2012, but did not appeal his conviction. By writ of habeas corpus, he asserted he was denied the right to an appeal. The Texas Court of Criminal Appeals agreed and granted him an out-of-time appeal. Ex parte Thornton, No. AP-76,967, 2013 Tex. Crim. App. LEXIS Unpub. 177 (Tex. Crim. App. Feb. 6, 2013) (orig. proceeding). 3 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). 4 Notwithstanding that Appellant was informed of his right to file a pro se petition for discretionary review upon execution of the Trial Court’s Certification of Defendant=s Right of Appeal, counsel must comply with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within five days after this opinion is handed down, send Appellant a copy of the opinion and judgment together with notification of his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408 n.22 & at 411 n.35.

2 BACKGROUND

On February 22, 2012, Appellant was involved in a motor vehicle accident. In

that accident Appellant’s vehicle struck another vehicle causing injuries to the driver of

the other vehicle and one of her two daughters, who were passengers. At the time,

Appellant had lost his driver’s license as a result of prior DWI offenses and he was on

community supervision for driving while intoxicated. The police determined the cause of

the accident to be Appellant’s intoxication. The result of his blood/alcohol test was a .15

BAC.

During the trial, testimony established Appellant had three prior convictions for

driving while intoxicated dating back to the 1990s. He is retired and helps his wife and

mother with everyday chores. He testified it would cause a hardship to his family to be

sent to prison. The trial court, expressing sympathy with Appellant’s personal and

family situation, nevertheless sentenced him to ten years for the new offense.

By the Anders brief, counsel diligently reviews the guilt/innocence and

punishment phases of trial, sentencing and trial counsel’s representation. He then

concedes there are no errors to present that would require reversal of Appellant’s

conviction.

We have independently examined the entire record to determine whether there

are any non-frivolous issues which might support the appeal. See Penson v. Ohio, 488

U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); In re Schulman, 252 S.W.3d at 409;

Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We have found no such

issues. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). After

3 reviewing the record and counsel=s brief, we agree with counsel that there is no

plausible basis for reversal. See Bledsoe v. State, 178 S.W.3d 824 (Tex. Crim. App.

2005).

CONCLUSION

The trial court’s judgment is affirmed and counsel's motion to withdraw is

granted.

Patrick A. Pirtle Justice

Do not publish.