Eric Boro Nichols A/K/A Eric Baro Nichols v. State

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-10-00435-CR

ERIC BORO NICHOLS A/K/A ERIC APPELLANT BARO NICHOLS

V.

THE STATE OF TEXAS STATE

----------

FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

MEMORANDUM OPINION1 ----------

Appellant Eric Boro Nichols a/k/a Eric Baro Nichols appeals his conviction

for possession of less than one gram of methamphetamine. 2 We affirm.

One day in March 2009, Hood County Sheriff’s Office deputies went to a

house because they had received information that the people who lived there

1 See Tex. R. App. P. 47.4. 2 See Tex. Health & Safety Code Ann. §§ 481.102(6), .115(a), (b) (West 2010). were stealing electricity. When a deputy knocked on the house’s door, appellant

answered. Appellant allowed the deputy to enter the house, and the deputy

noticed a ―strong odor of burnt marijuana.‖ When the deputy asked whether

there was anything illegal in the house, appellant said that there was a package

of methamphetamine in a hallway’s light fixture. Another deputy found the

methamphetamine. Appellant was arrested for possession of methamphetamine.

Later, appellant admitted that he had consumed methamphetamine from the

package found in the light fixture. A forensic scientist confirmed that the

substance weighed less than a gram and contained methamphetamine.

A Hood County grand jury indicted appellant for possessing less than one

gram of methamphetamine; the indictment contained enhancement paragraphs

alleging that appellant had been twice convicted of state-jail-felony theft. 3

Appellant’s retained counsel filed various motions on appellant’s behalf, and

appellant elected to have the jury assess his punishment if he was convicted.

3 Possession of less than a gram of methamphetamine is typically punished as a state jail felony. See id. § 481.115(b). But appellant’s two previous state jail felony convictions exposed him to a higher sentence. Specifically, at the time of appellant’s offense, section 12.42(a)(1) of the penal code provided, ―If it is shown on the trial of a state jail felony . . . that the defendant has previously been finally convicted of two state jail felonies, on conviction the defendant shall be punished for a third-degree felony.‖ Act of May 29, 1995, 74th Leg., R.S., ch. 318, § 1, 1995 Tex. Gen. Laws 2734, 2735, amended by Act of May 25, 2011, 82nd Leg., R.S., ch. 834, § 2, 2011 Tex. Sess. Law Serv. 2104, 2104 (West); see Campbell v. State, 49 S.W.3d 874, 875 (Tex. Crim. App. 2001).

2 After the parties conducted voir dire of the jury panel, appellant pled not guilty.4

But the jury found him guilty. After hearing punishment evidence and receiving

proof of appellant’s prior convictions, the jury found the indictment’s

enhancement paragraphs to be true and assessed his punishment at ten years’

confinement. Appellant filed a motion for new trial, which the trial court denied.

He then brought this appeal.

Appellant’s court-appointed appellate counsel has filed a motion to

withdraw as counsel and a brief in support of that motion. In the brief, counsel

avers that in her professional opinion, the appeal is frivolous. Counsel’s brief and

motion meet the requirements of Anders v. California by presenting a

professional evaluation of the record demonstrating why there are no arguable

grounds for relief. 386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967); see In re

Schulman, 252 S.W.3d 403, 406–12 (Tex. Crim. App. 2008) (analyzing the effect

of Anders). We gave appellant an opportunity to file a pro se brief, but he has

not done so. The State has not filed a brief.

Once an appellant’s court-appointed attorney files a motion to withdraw on

the ground that the appeal is frivolous and fulfills the requirements of Anders, we

are obligated to undertake an independent examination of the record.

See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v.

4 Appellant appeared for voir dire and pled not guilty that day, but he did not appear for the first day of trial. Appellant’s counsel requested a continuance, but the trial court denied the request.

3 State, 904 S.W.2d 920, 922–23 (Tex. App.—Fort Worth 1995, no pet.). Only

then may we grant counsel’s motion to withdraw. See Penson v. Ohio, 488 U.S.

75, 82–83, 109 S. Ct. 346, 351 (1988).

We have carefully reviewed the record and counsel’s brief. We agree with

counsel that the appeal is wholly frivolous and without merit; we find nothing in

the record that might arguably support the appeal. See Bledsoe v. State, 178

S.W.3d 824, 827–28 (Tex. Crim. App. 2005); see also Meza v. State, 206 S.W.3d

684, 685 n.6 (Tex. Crim. App. 2006). Accordingly, we grant counsel’s motion to

withdraw and affirm the trial court’s judgment.

TERRIE LIVINGSTON CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: November 10, 2011