Joel Keith Nichols v. State

• Court: Court of Appeals of Texas
• Decided: January 16, 2020
• Docket: 01-18-01000-CR
• Status: Published

Opinion

Opinion issued January 16, 2020

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-18-01000-CR ——————————— JOEL KEITH NICHOLS, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from 10th District Court Galveston County, Texas Trial Court Cause No. 17cr0618

MEMORANDUM OPINION Appellant, Joel Keith Nichols, was found guilty after a jury trial of the third-

degree felony offense of possession of a controlled substance. TEX. HEALTH &

SAFETY CODE § 481.115(a), (c). The jury assessed his punishment at six years’

confinement. This sentence is within the applicable sentencing range. TEX. PENAL CODE § 12.34(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 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. See id. at 744; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App.

1978). Counsel indicates that she has thoroughly reviewed the record and that she 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 she 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 she sent

appellant the form motion for pro se access to the records for his response. See Kelly

v. State, 436 S.W.3d 313, 322 (Tex. Crim. App. 2014). Appellant did not file a pro

se response to his counsel’s Anders brief and his deadline has expired.

2 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 155–56.

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 Winifred Bandy Weber

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 Bledsoe, 178 S.W.3d at 826–27; TEX. R. APP. P. 48.4. 3 PER CURIAM Panel consists of Chief Justice Radack and Justices Keyes and Landau.

Do not publish. TEX. R. APP. P. 47.2(b).