Walter Nelson v. State ( 2019 )

Opinion issued December 10, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00714-CR
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WALTER NELSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from 232nd District Court
Harris County, Texas
Trial Court Cause No. 1484407
MEMORANDUM OPINION
Appellant, Walter Nelson, was found guilty after a jury trial of the first-degree
felony offense of aggravated robbery with a deadly weapon. TEX. PENAL CODE
§ 29.03(a)(2). The jury assessed his punishment at 20 years’ confinement, which is
within the applicable sentencing range. TEX. PENAL CODE § 12.32(a). The trial court
certified that this was not a plea-bargain case, and that appellant had the right of
appeal. See TEX. R. APP. P. 25.2(a)(2). Appellant timely filed a notice of appeal and
new counsel was appointed.
Appellant’s appointed counsel has filed a motion to withdraw, along with an
Anders brief stating that the record presents no reversible error and that, therefore,
the appeal is without merit and is frivolous. See generally Anders v. California, 386
U.S. 738 (1967). Counsel’s brief meets the Anders requirements by presenting a
professional evaluation of the record and supplying this Court with references to the
record and legal authority. Id. at 744; High v. State, 573 S.W.2d 807, 812 (Tex. Crim.
App. 1978). Counsel indicates that he has thoroughly reviewed the record and that
he is unable to advance any grounds of error that warrant reversal. See Anders, 386
U.S. at 744; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.]
2006, no pet.).
Appellant’s counsel has informed us that he has delivered a copy of the motion
to withdraw and the Anders brief to appellant and informed appellant of his right to
file a pro se response. See In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App.
2008) (orig. proceeding). Furthermore, counsel has certified that he has sent
appellant the form motion for pro se access to the records for his response. See Kelly
v. State, 436 S.W.3d 313, 319, 322 (Tex. Crim. App. 2014). Appellant did not file a
pro se response to his counsel’s Anders brief and his deadline has expired.
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We have independently reviewed the entire record in this appeal, and we
conclude that no reversible error exists in the record, that there are no arguable
grounds for review, and that therefore the appeal is frivolous. See Anders, 386 U.S.
at 744 (emphasizing that reviewing court—and not counsel—determines, after full
examination of proceedings, whether appeal is wholly frivolous); Garner v. State,
300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (explaining that reviewing court must
determine whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d
824, 826–27 (Tex. Crim. App. 2005) (explaining that reviewing court need not
address merits of each claim raised in Anders brief or pro se response after
determining no arguable grounds for review exist); Mitchell, 193 S.W.3d at 155. An
appellant may challenge a holding that there are no arguable grounds for appeal by
filing a petition for discretionary review in the Texas Court of Criminal Appeals.
Bledsoe, 178 S.W.3d at 827 & n.6.
Accordingly, we affirm the judgment of the trial court and grant counsel’s
motion to withdraw.1 See TEX. R. APP. P. 43.2(a). Attorney, Richard K. Oliver, must
immediately send the required notice and file a copy of that notice with the Clerk of
this Court. See TEX. R. APP. P. 6.5(c). We dismiss any other pending motions as
moot.
1
Appointed counsel still has a duty to inform appellant of the result of this appeal
and that he may, on his own, pursue discretionary review in the Texas Court of
Criminal Appeals. See In re Schulman, 252 S.W.3d at 411; TEX. R. APP. P. 48.4.
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PER CURIAM
Panel consists of Justices Keyes, Kelly, and Goodman.
Do not publish. TEX. R. APP. P. 47.2(b).
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