Jimmy Lawson Thornton v. State

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.
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