Full Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-25-00434-CR ___________________________ JOSEPH MICHAEL HERBERT, Appellant V. THE STATE OF TEXAS On Appeal from Criminal District Court No. 1 Tarrant County, Texas Trial Court No. 1814540 Before Kerr, Birdwell, and Wallach, JJ. Memorandum Opinion by Justice Wallach MEMORANDUM OPINION Appellant Joseph Michael Herbert pled not guilty to the second-degree felony offense of aggravated assault using or exhibiting a deadly weapon. See Tex. Penal Code § 22.02(a)(2), (b). A jury found Herbert guilty and assessed his punishment at eight years’ confinement without fine. See id. § 12.33. Herbert timely filed an appeal. Herbert’s court-appointed appellate counsel filed a motion to withdraw as counsel and a brief in support of that motion in which he avers that, in his professional opinion, this appeal is frivolous. Counsel’s brief and motion meet the requirements of Anders v. California, 386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967), by professionally evaluating the appellate record and demonstrating why no arguable grounds for relief exist. See Stafford v. State, 813 S.W.2d 503, 510–11 (Tex. Crim. App. 1991). Counsel also complied with the requirements of Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). 1 In Kelly, the Court of Criminal Appeals listed additional tasks an appointed 1 lawyer who files an Anders brief must perform: He must write a letter to (1) notify his client of the motion to withdraw and the accompanying Anders brief, providing him a copy of each, (2) inform him of his right to file a pro se response and of his right to review the record preparatory to filing that response, and (3) inform him of his pro se right to seek discretionary review should the court of appeals declare his appeal frivolous. To this list we now add that appointed counsel who files a motion to withdraw and Anders brief must also (4) take concrete measures to initiate and facilitate the process of actuating his client’s right to review the appellate record, if that is what his client wishes. 2 Herbert did not request a copy of the appellate record or file a pro se response to the Anders brief. The State did not file a response but agreed with appellate counsel’s evaluation in a letter to this court. After an appellant’s court-appointed counsel files a motion to withdraw on the ground that an appeal is frivolous and fulfills Anders’s requirements, we must independently examine the record for any arguable ground that may be raised on his behalf. See Stafford, 813 S.W.2d at 511. Only then may we grant counsel’s motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988). We have carefully reviewed counsel’s brief and the appellate record. Finding nothing in the appellate record that arguably might support the appeal, we agree with counsel and conclude that the appeal is wholly frivolous and without merit. See Bledsoe v. State, 178 S.W.3d 824, 826–28 (Tex. Crim. App. 2005); see also Meza v. State, 206 S.W.3d 684, 685 & n.6 (Tex. Crim. App. 2006) (noting that a memorandum opinion agreeing with appellate counsel that there are no non-frivolous issues in the case is acceptable in an Anders appeal). Having concluded that Herbert’s appeal is frivolous, we grant counsel’s motion to withdraw and affirm the trial court’s judgment. Kelly, 436 S.W.3d at 319 (footnote omitted). The court also required counsel to supply the appellant with the mailing address for the court of appeals. Id. at 320. 3 /s/ Mike Wallach Mike Wallach Justice Do Not Publish Tex. R. App. P. 47.2(b) Delivered: August 27, 2026 4