Kevin Wayne Nichols v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 9, 2025
• Docket: 04-24-00291-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-24-00291-CR

Kevin Wayne NICHOLS, Appellant

v.

The STATE of Texas, Appellee

From the 399th Judicial District Court, Bexar County, Texas Trial Court No. 2022CR3257 Honorable Frank J. Castro, Judge Presiding

Opinion by: Lori I. Valenzuela, Justice

Sitting: Rebeca C. Martinez, Chief Justice Lori I. Valenzuela, Justice Lori Massey Brissette, Justice

Delivered and Filed: April 9, 2025

AFFIRMED; MOTION TO WITHDRAW GRANTED

In March of 2022, a Bexar County grand jury indicted appellant Kevin Wayne Nichols for

aggravated assault with a deadly weapon. The indictment alleged that Nichols threatened the

complainant, Brandey Nichols, with a knife. 1 Nichols pleaded nolo contendere, and the State

recommended deferred adjudication. On February 2, 2023, the trial court signed an order of

deferred adjudication, placed Nichols on community supervision for three years, and ordered him

to comply with eighteen conditions of community supervision.

1 The complainant’s name is spelled both “Brandey” and “Brandy” in the appellate record. We will use the spellings as they appear in court documents. Although not alleged in the indictment, the record shows the complainant is Nichols’s wife. 04-24-00291-CR

On August 7, 2023, the State filed a motion to enter adjudication of guilt and revoke

community supervision, alleging that Nichols violated the terms of his community supervision by

committing the offense of terroristic threat and failing to participate in a battering intervention and

prevention program. The trial court denied the State’s motion to revoke, but it added an additional

condition of community supervision.

On March 8, 2024, the State filed a second motion to enter adjudication of guilt and revoke

community supervision, alleging that Nichols violated the terms of his community supervision by

committing the offense of assault; failing to participate in a battering intervention and prevention

program; and harming or injuring Brandy Nichols. The State then supplemented its pending

motion to add allegations that Nichols violated the terms of his community supervision by

committing the offense of terroristic threat and “illegally us[ing] a controlled substance, namely:

Methamphetamine, per defendant’s admission[.]”

During the April 17, 2024 hearing on the State’s motion to revoke, Nichols pleaded true to

the allegation that he used methamphetamine. The trial court accepted Nichols’s plea, found the

allegation to be true, found him guilty of the underlying aggravated assault, and sentenced him to

five years in prison. Nichols timely filed a pro se notice of appeal, and the trial court appointed

counsel to represent him in this appeal.

On appeal, Nichols’s court-appointed appellate attorney filed a brief in which he concludes

this appeal is frivolous and without merit, and requests to withdraw as counsel. The brief

demonstrates a professional and thorough evaluation of the record and meets the requirements of

Anders v. California, 386 U.S. 738 (1967) and High v. State, 573 S.W.2d 807 (Tex. Crim. App.

1978). Counsel sent copies of the brief, which included a request to withdraw, to Nichols and

informed him of his rights in compliance with the requirements of Kelly v. State, 436 S.W.3d 313

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(Tex. Crim. App. 2014). This court notified Nichols of the deadline to file a pro se brief. On March

5, 2025, Nichols filed a letter we construe as a brief.

We have thoroughly reviewed the record, counsel’s brief, and Nichols’s letter brief. We

find no arguable grounds for appeal exist and have decided the appeal is wholly frivolous. See

Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005); see also Nichols v. State, 954

S.W.2d 83, 85–86 (Tex. App.—San Antonio 1997, no pet.) (per curiam); Bruns v. State, 924

S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996, no pet.). We therefore grant appointed

counsel’s motion to withdraw and affirm the trial court’s judgment. See Bledsoe, 178 S.W.3d at

826–27; Nichols, 954 S.W.2d at 86; Bruns, 924 S.W.2d at 177 n.1.

No substitute counsel will be appointed. Should Nichols wish to seek further review of this

case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for

discretionary review or file a pro se petition for discretionary review. Any petition for discretionary

review must be filed within thirty days from the date of either this opinion or the last timely motion

for rehearing that is overruled by this court. See TEX. R. APP. P. 68.2. Any petition for discretionary

review must be filed in the Court of Criminal Appeals. See id. R. 68.3. Any petition for

discretionary review must comply with the requirements of Rule 68.4 of the Texas Rules of

Appellate Procedure. See id. R. 68.4.

Lori I. Valenzuela, Justice

DO NOT PUBLISH

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