Jonathan Nickels v. State of Texas

Opinion

NO. 07-01-0181-CR NO. 07-01-0182-CR NO. 07-01-0183-CR NO. 07-01-0184-CR NO. 07-01-0185-CR NO. 07-01-0186-CR NO. 07-01-0187-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

NOVEMBER 27, 2001

______________________________

JONATHAN CARY NICKELS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

NOS. 43,449-B, 43,450-B, 43,060-B, 43,061-B, 43,062-B, 43,063-B, & 43,064-B; HONORABLE JOHN BOARD, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

Pursuant to open pleas of guilty, appellant Jonathan Cary Nickels1 was convicted

of multiple offenses and punishment was assessed accordingly: (1) in cause number

1 Although the judgments reflect appellant’s surname as Nickles, his pro se brief reflects his surname is Nickels. 43,449-B for possession of marihuana, a state jail felony--one year confinement; (2) in

cause number 43,450-B for possession of cocaine--ten years confinement; (3) in cause

number 43,060-B for delivery of methamphetamine--ten years confinement; (4) in cause

number 43,061-B for delivery of methamphetamine–ten years confinement; (5) in cause

number 43,062-B for delivery of cocaine–ten years confinement, (6) in cause number

43,063-B for delivery of methamphetamine–30 years confinement, and (7) in cause

number 43,064-B for delivery of methamphetamine–30 years confinement. In presenting

these appeals, counsel has filed an Anders2 brief in support of a motion to withdraw.

Based upon the rationale expressed herein, the motion to withdraw is granted and each

judgment is affirmed.

In support of his motion to withdraw, counsel has certified that he has diligently

reviewed the records and, in his opinion, the records reflect no reversible errors or

grounds upon which appeals can be predicated. Anders v. California, 386 U.S. 738, 744-

45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Monroe v. State, 671 S.W.2d 583, 585

(Tex.App.--San Antonio 1984, no pet.). Thus, he concludes the appeals are frivolous and

without merit. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978),

counsel has candidly discussed why, under the controlling authorities, there are no errors

in the court's judgments. Counsel has also shown that he sent a copy of the brief to

appellant, and informed appellant that, in counsel's view, the appeals are without merit.

2 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

2 In addition, counsel has demonstrated that he notified appellant of his right to review the

records and file a pro se brief if he desired to do so. Appellant filed a pro se brief in

support of a motion to vacate, set aside, or correct a sentence. The State did not favor us

with a brief.

A review of each record discloses that a confidential informant introduced appellant

to two undercover agents on January 7, 2000. Approximately 2.5 grams of

methamphetamine were purchased from appellant by Agent Redden and his partner. The

agents made subsequent purchases of methamphetamine and cocaine from appellant as

follows: 3.8 grams of methamphetamine on January 13, 2000, 2.1 grams of cocaine on

February 18, 2000, 8.5 grams of methamphetamine on March 3, 2000, 7.1 grams of

cocaine on March 30, 2000, and 7.7 grams of methamphetamine on April 19, 2000. During

the February 18 purchase appellant indicated to the agents that he could obtain

untraceable weapons to sell to them and on March 3, the agents purchased a sawed-off

shotgun in addition to cocaine.

On September 25, 2000, ATF officers and Agent Redden served a federal warrant

on appellant for firearm violations. Redden entered appellant’s home in an undercover

capacity and was led to the bedroom by appellant’s girlfriend. Appellant and his infant son

were laying on the bed next to an open diaper bag. Redden noticed a plastic bag

containing what appeared to be cocaine on top of the diaper bag. Appellant was informed

that a federal warrant was being served and he was taken into custody. Although his

3 girlfriend tried to close the diaper bag, a search revealed two plastic bags containing a

total of 41 grams of cocaine and one plastic bag containing a quarter of a pound of

marijuana.

Appellant was charged with seven separate offenses involving either possession

or delivery of narcotics. He entered pleas of guilty to all charges with no agreement on

punishment and evidence was heard with regard to sentencing. Agent Redden and his

partner testified about appellant’s status as a mid-level drug dealer. Redden testified that

he would page appellant and set up a meeting to purchase narcotics. Appellant would

then meet with his supplier to obtain what Redden had requested.

Appellant testified that he was a drug user and tried to leave an impression that he

was merely a runner for his supplier. Although he did not consider himself a dealer, he

admitted selling drugs to the agents at higher than usual prices in order to pay his supplier

and have money left to support his baby. Although appellant claimed that the narcotics

were never in his home and that he met with his supplier to obtain them, he could not

convincingly explain why he was in possession of 41 grams of cocaine when he was

arrested on September 25. He testified that he had that amount in his possession in

anticipation that Redden would contact him again as he had done regularly in the past.

However, Redden and appellant had not engaged in a transaction since April. Appellant

expressed regret and remorse for his actions and admitted to being a “stupid” criminal.

However, when questioned whether he was aware that the more drugs he sold to the

4 agents the more trouble he was in, he replied, “I knew the more I sold, the more time you

get . . . .” He did not request probation and realized he would be punished for his crimes.

The State also introduced evidence of appellant’s juvenile history which established

several prior convictions and a probation revocation. At the conclusion of the punishment

evidence, the trial court ruled that the evidence clearly showed appellant was a dealer.

The court also expressed concern that given appellant’s criminal history, he had not taken

advantage of the numerous chances he had been given. Concluding that appellant had

made “bad choices,” he was sentenced to one year confinement for a state jail felony, four

ten-year sentences for second degree felonies, and two 30-year sentences for first degree

felonies all to run concurrently.

Counsel presents three arguable points on appeal, to wit: (1) ineffective assistance

of counsel, (2) voluntariness of appellant’s pleas, and (3) abuse of discretion in

sentencing. However, after a discussion of the evidence and legal authorities, counsel

candidly concedes that no reversible error is presented in any of the appeals.

To establish ineffective assistance of counsel appellant must establish that (1)

counsel’s conduct was deficient (i.e., fell below an objective standard of reasonableness),

and (2) there is a reasonable probability that but for counsel’s deficient performance, the

result of the proceeding would have been different. Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 55

5 (Tex.Cr.App. 1986). A strong presumption exists that defense counsel’s conduct falls

within a wide range of reasonable representation. Strickland, 466 U.S. at 690, 104 S.Ct.

at 2064, 80 L.Ed.2d at 695; Dewberry v. State, 4 S.W.3d 735, 757 (Tex.Cr.App. 1999),

cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). To sustain a

challenge of ineffective assistance of counsel, it must be firmly founded in the record.

Mercado v. State, 615 S.W.2d 225, 228 (Tex.Cr.App. 1981). If the record is silent

regarding any alleged ineffectiveness of counsel, appellant cannot overcome the

presumption that counsel’s conduct fell within a wide range of reasonable professional

representation.

In most instances, the most effective way to demonstrate ineffective assistance of

counsel is by presenting evidence at a hearing on a motion for new trial. See generally

McCain v. State, 995 S.W.2d 229, 245 n.9 (Tex.App.–Houston [14th Dist.] 1999, pet.

denied) (discussing ineffective assistance during voir dire). However, here, appellant did

not file motions for new trial and the records before us are silent regarding any alleged

ineffectiveness by counsel. Thus, no reversible error is presented on the ground of

ineffective assistance of counsel.

Because appellant’s guilty pleas were not entered pursuant to felony plea

bargains, we can review whether they were involuntary. See Cooper v. State, 45 S.W.3d

77 (Tex.Cr.App. 2001) (holding that voluntariness of a plea may not be raised on appeal

from a plea-bargained felony conviction). When the record shows that a defendant was

6 properly admonished, there is a prima facie showing of a knowing and voluntary guilty

plea. Ex parte Gibauitch, 688 S.W.2d 868, 871 (Tex.Cr. App. 1985). The burden then

shifts to the defendant to establish that he plead guilty without understanding the

consequences of his plea and, consequently, suffered harm. Tex. Code Crim. Proc. Ann.

art. 26.13(c) (Vernon 1989). Gibauitch, 688 S.W.2d at 871. In reviewing the voluntariness

of a defendant’s guilty plea, we review the entire record. Martinez v. State, 981 S.W.2d

195, 197 (Tex.Cr.App. 1998) (en banc).

The record reflects that appellant was admonished by the trial court prior to the

presentation of punishment evidence. Appellant informed the trial court that his pleas were

voluntary and that his judicial confessions were signed of his own free will. He also signed

written admonishments acknowledging that he was aware of the consequences of his

pleas. Because appellant was properly admonished, it was incumbent upon him to show

that he entered his guilty pleas without understanding the consequences thereof, and thus

suffered harm. However, there is nothing in the records before us to indicate that

appellant was induced into pleading guilty or that he was unaware of the consequences

of his pleas. Therefore, no reversible error exists on the basis of appellant’s guilty pleas.

Counsel also concedes that no reversible error is shown in the sentences imposed

by the trial court. Generally, a penalty imposed within the range of punishment established

by the Legislature will not be disturbed on appeal. Flores v. State, 936 S.W.2d 478

(Tex.App.–Eastland 1996, pet. ref’d). Appellant received a one-year sentence for the state

7 jail felony of possession of marihuana of five pounds or less but more than four ounces.3

A state jail felony is punishable by confinement for not more than two years or less than

180 days.4 Four separate ten-year sentences were imposed for (1) possession of cocaine

of four grams or more but less than 200; (2) and (3) delivery of methamphetamine of one

gram or more but less than four; and (4) delivery of cocaine of one gram or more but less

than four.5 These offenses constitute second degree felonies punishable by not more than

20 years or less than two years.6 Appellant was sentenced to two 30-year sentences for

delivery of methamphetamine of four grams or more but less than 200, which are first

degree felonies with a punishment range of not more than 99 years or less than five years

confinement.7 All seven sentences imposed by the trial court were within the range of

punishment established by the Legislature and thus, no abuse of discretion is shown.

Moreover, appellant’s sentences were half of the maximum recommended range of

punishment in the first five offenses and on the low end of the range of punishment for the

two first degree felonies.

3 See Tex. Health & Safety Code Ann. § 481.121(b)(3) (Vernon Supp. 2002). 4 See Tex. Penal Code Ann. § 12.35(a) (Vernon 1994). 5 See Tex. Health & Safety Code Ann. §§ 481.102(3)(D) and 481.102(6) (Vernon Supp. 2002); see also §§ 481.112(c) and 481.115(d). 6 Tex. Penal Code Ann. § 12.33(a) (Vernon 1994). 7 See Tex. Health & Safety Code Ann. § 481.112(d) (Vernon Supp. 2002), and Tex. Penal Code Ann. § 12.32(a) (Vernon 1994).

8 By his pro se brief in support of his motion, appellant mirrors appellate counsel’s

arguments on ineffective assistance of counsel and the voluntariness of his guilty pleas.

Because we have already reviewed these contentions, we will not repeat our analysis.

However, citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 131 L.Ed. 2d 490 (1963),

appellant contends that his right to due process under the Fourteenth Amendment was

violated by the prosecution for failing to disclose favorable evidence. We disagree. In

Brady, the Supreme Court held that the prosecution violates due process when it

suppresses evidence in its possession favorable to an accused “where the evidence is

material either to guilt or punishment.” Id. at 87. Evidence is material if there is a

reasonable probability that, had the evidence been disclosed to the defense, the outcome

of the proceeding would have been different. United States v. Bagley, 473 U.S. 667, 676,

105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

Specifically, appellant contends the prosecution was in possession of a statement

made by Jonathan Burch, the confidential informant who introduced appellant to the

agents, that might have proven his innocence. He asserts that Burch and Agent Redden

had their own “agenda” and that Burch made a statement to Redden during an interview

after appellant was arrested that if disclosed would have changed the outcome of his

convictions. The record before us does not establish any statements made by Burch to

Agent Redden that would invoke Brady. Furthermore, appellant never claimed to be

innocent of the charged offenses. He testified that he was a “stupid” criminal and that he

9 knew he would have to be punished for what he had done. Appellant has not established

that material evidence, if any, was withheld from him by the prosecution or that it would

have resulted in a different outcome.

Appellant also contends that his appellate counsel is ineffective and thus he has

been denied his Sixth Amendment right to counsel on appeal. He argues that appellate

counsel “dropped the ball” in retaliation to his request for appellate counsel’s resume.

Citing Penson v. Ohio, 488 U.S. 75, 84-85, 102 L.Ed.2d 300, 109 S.Ct. 346 (1988),

appellant claims “[t]he right to be represented by counsel on direct appeal from a

conviction as well as at the criminal trial is among the most fundamental rights.” He also

relies on Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), which

held that the Fourteenth Amendment guarantees a criminal appellant the right to counsel

on a first appeal as of right. However, four years after Douglas, the Court decided Anders

v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which implemented

safeguards for first appeals by indigent defendants. Anders and Penson require that an

indigent defendant be afforded assistance of counsel on appeal only after a separate

inquiry by an appellate court determines that arguably meritorious grounds for reversal of

a conviction exist. Appellate counsel has complied with the procedural safeguards of

Anders and Penson. Nevertheless, appellant requests that we appoint new counsel to

represent him on appeal from his seven convictions. The Legislature has given the trial

court, not this Court, the responsibility for appointing counsel to represent indigent

10 defendants as well as the authority to relieve or replace counsel. See Enriquez v. State,

999 S.W.2d 906, 907 (Tex.App.–Waco 1999, no pet.). Appellant’s pro se contentions are

overruled.

We have also made an independent examination of the entire record to determine

whether there are any arguable grounds which might support the appeal. See Penson v.

Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Stafford v. State, 813 S.W.2d

503, 511 (Tex.Cr.App. 1991). We have found no such grounds and agree with counsel

that the appeal is without merit and is, therefore, frivolous. Currie v. State, 516 S.W.2d

684 (Tex.Cr.App. 1974); Lacy v. State, 477 S.W.2d 577, 578 (Tex.Cr.App. 1972).

Accordingly, counsel's motion to withdraw is hereby granted and the judgments of

the trial court are affirmed.

Don H. Reavis Justice

Do not publish.