Kevin Nelson v. State
12-16-00075-CR
| Tex. App. | Feb 28, 2017Background
- Kevin Nelson was charged with four counts of aggravated robbery and pleaded guilty pursuant to a plea agreement.
- The trial court placed Nelson on ten years' deferred-adjudication community supervision.
- The State filed an application to proceed to final adjudication; the trial court initially denied it but amended the supervision terms.
- After a second application, Nelson admitted he violated supervision; the court revoked supervision, adjudicated him guilty on all four counts, and sentenced him to 40 years' imprisonment on each count, to run concurrently.
- Appellate counsel filed an Anders/Gainous brief concluding the appeal was frivolous; Nelson filed a pro se brief alleging unfair trial and ineffective assistance of counsel.
- The Court of Appeals conducted an independent review, found no reversible error, granted counsel leave to withdraw, and affirmed the trial court judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there are nonfrivolous appellate issues after revocation and adjudication | Nelson contends he did not receive a fair trial and counsel was ineffective | Appellate counsel argues the record contains no jurisdictional defects or reversible error (Anders brief) | Court found the appeal wholly frivolous and affirmed |
| Whether appellate counsel may withdraw under Anders procedure | Nelson seeks review of convictions | Counsel moves to withdraw after professional review concludes no arguable issues | Withdrawal granted under Anders/Gainous/Schulman protocol |
| Whether the record supports revocation and adjudication | Nelson challenges fairness of proceedings | State relies on Nelson’s plea of true to violations and revocation hearing record | Court found no reversible error; adjudication and sentence affirmed |
| Availability of further review | Nelson may seek further review | Counsel must notify Nelson of PDR rights and provide opinion copy | Court instructed on filing PDR within 30 days; provided procedural instructions |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (requires appointed counsel to file brief identifying any arguable issues when seeking to withdraw)
- Penson v. Ohio, 488 U.S. 75 (court may independently review record when counsel seeks to withdraw)
- Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App.) (Anders-type procedures in Texas)
- High v. State, 573 S.W.2d 807 (Tex. Crim. App.) (procedure for counsel’s Anders-type brief)
- Bledsoe v. State, 178 S.W.3d 824 (Tex. Crim. App.) (appellate court’s independent review when counsel files Anders brief)
- Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App.) (procedural guidance when counsel seeks leave to withdraw)
- In re Schulman, 252 S.W.3d 403 (Tex. Crim. App.) (requirements for counsel’s motion to withdraw and appellate notifications)