Opinion
No. 10-16-00338-CR No. 10-16-00339-CR
07-05-2017
SHAWN WESTLEY NOORDAM, Appellant v. THE STATE OF TEXAS, Appellee
From the 52nd District Court Coryell County, Texas
Trial Court Nos. 15-23010 and 15-23028
MEMORANDUM OPINION
In two indictments and two judgments, Shawn Westley Noordam was charged and convicted of Sexual Assault of a Child, see TEX. PENAL CODE ANN. § 22.011 (West 2011), and Improper Relationship Between Educator and Student, see TEX. PENAL CODE ANN. § 21.12 (West 2011). In the same hearing, Noordam pled guilty to both charges, without the benefit of a plea bargain, and punishment evidence for each offense was submitted to the trial court. After a presentence investigation was completed, Noordam was sentenced, again in one hearing, to 8 years in prison for each offense. The sentences were ordered to run concurrently.
Noordam's appointed counsel has filed motions to withdraw and Anders briefs in support of the motions to withdraw asserting that the appeals present no issues of arguable merit. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed.2d 493 (1967); In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008). Counsel advised Noordam that counsel had filed the motions and briefs pursuant to Anders and that Noordam had the right to review the record and file a pro se response on his own behalf. Counsel also provided Noordam with a copy of the record. Noordam did not file a response with this Court.
Counsel asserts in the Anders briefs that counsel reviewed the entire record, including the pleas of guilty, the indictments, sentencing and punishment, and the assistance of counsel, for any potentially meritorious issues, and determined there is no non-frivolous issue to raise in these appeals. Counsel's briefs evidence a professional evaluation of the record, 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, 812-813 (Tex. Crim. App. 1978); see also In re Schulman, 252 S.W.3d 403, 406-408 (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).
Having carefully reviewed the entire record and the Anders briefs, we have determined that the appeals are frivolous. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). We note, however, that costs were assessed in both judgments of conviction. Where allegations and evidence of more than one offense are presented in a single trial or plea proceeding, the trial court errs in assessing costs in each conviction. Hurlburt v. State, 506 S.W.3d 199, 203-204 (Tex. App.—Waco 2016, no pet.). Based on our precedent, abatement to the trial court for the appointment of new counsel to address this issue is not required. See Ferguson v. State, 435 S.W.3d 291 (Tex. App.—Waco 2014, pet. dism.). Because this error does not impact the determination of guilt or punishment and, therefore, does not result in a reversal of either judgment, we may modify one of the judgments to correct the erroneous assessment of costs. Id. Accordingly, the Judgment of Conviction by Court—Waiver of Jury Trial in trial court case number 15-23010 is modified to delete the assessed court costs. We affirm the trial court's Judgment of Conviction by Court—Waiver of Jury Trial in trial court case number 15-23010 as modified and affirm the trial court's Judgment of Conviction by Court—Waiver of Jury Trial in trial court case number 15-23028.
Should Noordam wish to seek further review of these cases 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. 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 motions to withdraw from representation of Noordam are granted, and counsel is discharged from representing Noordam. Notwithstanding counsel's discharge, counsel must send Noordam 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 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 July 5, 2017
Do not publish
[CR25]