Kendall Glen Nichols v. State

Court of Appeals of Texas

Kendall Glen Nichols v. State

DecidedOctober 17, 2003

Docket06-03-00043-CR

StatusPublished

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Kendall Glen Nichols v. State, (Tex. Ct. App. 2003).

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Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-03-00009-CR

KENDELL GLEN NICHOLS, Appellant

Â

V.

THE STATE OF TEXAS, Appellee

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

On Appeal from the 354th Judicial District Court

Hunt County, Texas

Trial Court No. 19,045

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Â Â Â Â Â Â Â Â Â Â Â Â Responding to a curious report that a driver had fallen asleep behind the wheel while in a local fast-food restaurant's drive-through, Commerce, Texas, police officers arrived on the scene to see Kendell Glen Nichols "slumped down" in the driver's seat with his chin on his chest. From outside the vehicle, they saw a beer can on the vehicle's floor. Officer Allen Hammond testified that, from outside the vehicle, he then saw, in plain view in an open console

what looked to be a glass vial or tube that had black markings or burn marks on them, which, through my experience, it looked like that which is used to smoke amphetamines or other narcotics. I also saw a [sic] off-white or yellowish hard-like substance. It was about maybe about as big as my knuckle, at first was all I could see, and there was numerous plastic baggies also inside a little black pouch.

In this appeal, we are called on to determine whether there was sufficient evidence that the officers saw, in plain view, drug paraphernalia or suspected controlled substances. There was sufficient evidence. Therefore, we affirm.

Â Â Â Â Â Â Â Â Â Â Â Â On March 18, 1998, Nichols pled guilty in Hunt County cause number 19,045 to possessing, with intent to deliver, an amount of amphetamine that weighed more than four grams but less than 400 grams, including adulterants and dilutants. The charged offense is a first-degree felony. Tex. Health & Safety Code Ann. Â§ 481.103(a)(3) (Vernon 2003) (amphetamine penalty group 2 drug); Tex. Health & Safety Code Ann. Â§ 481.113(d) (Vernon 2003) (possession with intent to deliver drug in penalty group 2 in amount between 4 and 400 grams is second-degree felony). There was no plea agreement. The trial court considered the evidence and sentenced Nichols to ten years' imprisonment. Nichols subsequently filed a timely notice of appeal.

Â Â Â Â Â Â Â Â Â Â Â Â On July 2, 2003, Nichols' appellate counsel filed an Anders brief in which he professionally discussed the record, described the issues reviewed, and concluded there were no arguable grounds for appeal, and, as required by Anders, also filed a motion to withdraw. Counsel also sent Nichols a copy of the appellate brief and informed Nichols of his rights to file a pro se response and to review the record.

Â Â Â Â Â Â Â Â Â Â Â Â This Court informed Nichols at that time that his response, if any, was due by August 1, 2003. As of this date, Nichols has not filed a pro se response. We have independently reviewed the record and the brief filed by counsel in this appeal, and we agree there are no arguable issues that would support an appeal in this case.

Â Â Â Â Â Â Â Â Â Â Â Â We first note Nichols filed a pretrial motion to suppress. When reviewing a trial court's ruling on a motion to suppress, we will not disturb the ruling absent a showing the trial court abused its discretion. Maddox v. State, 682 S.W.2d 563, 564 (Tex. Crim. App. 1985). In a suppression hearing, the trial court is the sole judge of witness credibility and the weight to be given to witness testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). The trial court is free to believe or disbelieve all or part of a witness' testimony. Meek v. State, 790 S.W.2d 618, 620 (Tex. Crim. App. 1990). We must also view the evidence in the light most favorable to the trial court's ruling, considering whether the trial court improperly applied the law to the facts. Romero, 800 S.W.3d at 543.

Â Â Â Â Â Â Â Â Â Â Â Â At the hearing on Nichols' motion to suppress, the State conceded its police officers made a warrantless search of Nichols' vehicle. Accordingly, the burden shifted to the State to show the search of Nichols' car fell within one of the exceptions to the requirement that police not search a person's property without securing a warrant. See McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003). One such exception is the "plain view" doctrine. See Ramirez v. State, 105 S.W.3d 730, 745 (Tex. App.âAustin 2003, no pet. h.) (plain view exception requires officer see item in plain view at vantage point where officer has right to be and that officer immediately recognize that seized item constitutes evidence).

Â Â Â Â Â Â Â Â Â Â Â Â Viewing the evidence in the light most favorable to the trial court's ruling, we find that evidence exists to support the trial court's ruling that the drugs were seized pursuant to the plain view exception to the warrant requirement. Hammond testified he was standing outside the car in the parking lot of a public restaurant when he saw the items inside Nichols' vehicle which Hammond, based on his experience, knew immediately to be drug paraphernalia and suspected illegal narcotics. Therefore, the trial court did not abuse its discretion by denying Nichols' motion to suppress.

Â Â Â Â Â Â Â Â Â Â Â Â The record also supports the trial court's stated finding that Nichols' guilty plea, made following the denial of his motion to suppress, was made willingly, knowingly, and voluntarily, and was not the product of any plea agreement. Before accepting Nichols' plea, the trial court inquired whether Nichols understood that, by waiving his right to a jury trial, pleading guilty, and submitting the case to the trial court for punishment, the full range of punishment would be available to the trial court. Nichols affirmatively stated, on the record and in writing, he understood the ramifications of his jury waiver and his guilty plea.

Â Â Â Â Â Â Â Â Â Â Â Â At the sentencing hearing, Nichols presented the testimony of several witnesses. Nichols himself testified he believed no sentence of imprisonment would help him with his past drug problems. He discussed the important roles he played in his family, including acting as a surrogate big brother to his nephews and assisting his parents with the upkeep of their home.

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