Andrew David Nelson v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 19, 2021
• Docket: 09-20-00102-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-20-00102-CR NO. 09-20-00103-CR NO. 09-20-00104-CR NO. 09-20-00105-CR __________________

ANDREW DAVID NELSON, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 435th District Court Montgomery County, Texas Trial Cause Nos. 19-01-01183-CR, 19-01-01184-CR, 19-11-15284-CR & 19-11-15285-CR __________________________________________________________________

MEMORANDUM OPINION

A grand jury indicted Appellant Andrew David Nelson on four counts of

possession or promotion of child pornography. See Tex. Penal Code Ann. § 43.26(a).

Nelson pleaded guilty to all four charges. After a trial on punishment, a jury assessed

punishment at seven years’ imprisonment for each offense. The trial court’s

1 judgment ordered that three of the sentences be concurrent and one consecutive.

Nelson timely appealed.

Nelson’s appointed counsel filed a brief that presents counsel’s professional

evaluation of the records and concludes the appeals are without merit and that there

are no arguable grounds for reversal. See Anders v. California, 386 U.S. 738 (1967);

High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). We granted an extension of

time for Nelson to file pro se briefs, and Nelson filed pro se briefs. 1

The Court of Criminal Appeals has held that we need not address the merits

of issues raised in Anders briefs or pro se responses. Bledsoe v. State, 178 S.W.3d

824, 826-27 (Tex. Crim. App. 2005). Rather, an appellate court may determine

either: (1) “that the appeal is wholly frivolous and issue an opinion explaining that

1 Although an appellate court is not required to do so, “when a court of appeals finds no issues of arguable merit in an Anders brief, it may explain why the issues have no arguable merit.” Garner v. State, 300 S.W.3d 763, 764 (Tex. Crim. App. 2009); Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005). Nelson’s pro se briefs lodge three complaints: (1) the trial court violated his right to have the jury assess punishment by making two sentences consecutive where the jury allegedly recommended that all sentences run concurrently; (2) one witness’s testimony was “questionable” and more prejudicial than probative; and (3) the consecutive sentences imposed constitute cruel and unusual punishment and there is no evidence the court considered mitigating factors. A trial court has discretion to cumulate sentences so long as the individual sentences are not elevated beyond their respective statutory maximums. See Beedy v. State, 250 S.W.3d 107, 110 (Tex. Crim. App. 2008); Barrow v. State, 207 S.W.3d 377, 382 (Tex. Crim. App. 2006). The sentences he received were not elevated beyond the statutory maximums. As to appellant’s evidentiary complaint, it is inadequately briefed as it fails to cite to and apply relevant legal authority. See Tex. R. App. P. 38.1(i); Wolfe v. State, 509 S.W.3d 325, 342-43 (Tex. Crim. App. 2017). 2 it has reviewed the record and finds no reversible error”; or (2) “that arguable

grounds for appeal exist and remand the cause to the trial court so that new counsel

may be appointed to brief the issues.” Id. We have independently examined and

conducted a full examination of all the proceedings, and we have determined that

these appeals are wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988) (citing

Anders, 386 U.S. at 744). We have reviewed the appellate records in each case,

counsel’s briefs, and Appellant’s pro se briefs, and we have found nothing that

would arguably support the appeals. See Bledsoe, 178 S.W.3d at 827-28 (“Due to

the nature of Anders briefs, by indicating in the opinion that it considered the issues

raised in the briefs and reviewed the record for reversible error but found none, the

court of appeals met the requirements of Texas Rule of Appellate Procedure 47.1.”).

Therefore, we find it unnecessary to order appointment of new counsel to re-brief

the appeals. Compare Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App.

1991).

We affirm the trial court’s judgments. 2

AFFIRMED.

_________________________ LEANNE JOHNSON Justice

2 Nelson may challenge our decision in these cases by filing petitions for discretionary review. See Tex. R. App. P. 68. 3 Submitted on May 7, 2021 Opinion Delivered May 19, 2021 Do Not Publish

Before Kreger, Horton and Johnson, JJ.