Ricky Lagene Nichols v. State

• Court: Court of Appeals of Texas
• Decided: July 8, 1998
• Docket: 10-98-00051-CR
• Status: Published

Opinion

Ricky Lagene Nichols v. The State of Texas

IN THE

TENTH COURT OF APPEALS

No. 10-98-051-CR

     RICKY LAGENE NICHOLS,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 66th District Court

Hill County, Texas

Trial Court No. 30,729

MEMORANDUM OPINION

      On May 12, 1997, Ricky Lagene Nichols pled guilty to the offense of aggravated assault, and the court assessed punishment at five years’ incarceration in the Institutional Division of the Texas Department of Criminal Justice, suspended for five years. See Tex. Pen. Code Ann. § 22.02 (Vernon 1994). On December 23, 1997, the State filed a motion to revoke Nichols’ community supervision, alleging that he had violated several of the terms of his probated sentence. The trial court granted the State’s motion and revoked Nichols’ community supervision on January 30, 1998. Nichols filed a notice of appeal on February 27. Nichols has now filed a motion to voluntarily dismiss his appeal.

      The appellate rule governing voluntary dismissals in criminal appeals states:

At any time before the appellate court’s decision, the appellate court may dismiss the appeal if the appellant withdraws his or her notice of appeal. The appellant and his or her attorney must sign the written withdrawal and file it in duplicate with the appellate clerk. . . .

Tex. R. App. P. 42.2(a).

      We have not issued a decision in this appeal. The motion is signed by both Nichols and his attorney. Thus, the motion meets the requirements of the rules and is granted.

      Nichols’ appeal is dismissed.

                                                                               PER CURIAM

Before   Chief Justice Davis,

            Justice Cummings, and

            Justice Vance

Dismissed on appellant's motion

Opinion delivered and filed July 8, 1998

Do not publish

rt erred in denying his motion to suppress evidence: 1) in that the stop of Appellant’s vehicle was unlawful; 2) in that the investigative detention was unreasonable; and 3) in that the State failed to prove by clear and convincing evidence that the Appellant’s consent to search was voluntary.

      The determination of whether the trial court erred in denying a motion to suppress evidence is reviewed de novo on appeal, looking at the totality of the circumstances, while giving deference to the fact findings of the trial court. Guzman v. State, 955 S.W.2d 85, 88 (Tex. Crim. App. 1997); Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998). Appellate courts should afford almost total deference to a trial court’s determination of the historical facts that the record supports, especially when the trial court’s findings are based on evaluation of credibility and demeanor. Id. When the trial court does not make express findings of fact, the facts are viewed in the light most favorable to the trial court’s ruling. Loserth, p. 744.

      A driver’s failure to properly signal before changing lanes provides an objective basis for an officer to stop a vehicle. Tex. Transp. Code § 545.104. Thus, Officer Nguyen’s stop of Appellant was lawful. The stop being lawful, the officer had probable cause to arrest.

      Once an officer has probable cause to arrest, he may search the vehicle as a search incident to that arrest. Williams v. State, 726 S.W.2d 99 (Tex. Crim. App. 1986).

      Moreover, after Appellant was stopped, he was asked for consent to search his car, which he gave.

      Appellant contends his consent to search was not voluntary, and therefore, the cocaine should have been suppressed. Whether Appellant consented voluntarily to the search depends on the credibility of the officer’s testimony to which we give total deference to the trial court’s implied finding. Moreover as noted, since the stop was lawful, the search was legal, and Appellant’s consent to the search was not necessary.

      Appellant’s first three points are overruled.

      In points 4 and 5, Appellant contends that the evidence supporting his conviction is legally and factually insufficient. Appellant first argues that there was insufficient evidence to show that he exercised care, custody or control over the cocaine in his vehicle.

      When reviewing the legal sufficiency of the evidence, we examine all the evidence to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319; Criner v. State, 860 S.W.2d 84, 86 (Tex. Crim. App. 1992). In making this examination, we view the evidence in the light most favorable to the verdict. Santellan v. State, 939 S.W.2d 155, 160 (Tex. Crim. App. 1997).

      When reviewing a claim of factual insufficiency of the evidence, we view all the evidence without the prism “in the light most favorable to the verdict.” Clewis v. State, 922 S.W.2d 126, 131 (Tex. Crim. App. 1996).

      Under the factual sufficiency standard, this Court should ask “whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Accordingly, this Court can reverse the fact finder’s determination only if “a manifest injustice has occurred.” Id., p. 12.

      Appellant was driving a car with an open box containing a bag of cocaine on the floorboard of the front passenger seat. The cocaine was visible from the outside of the car, therefore, it can be inferred that it was clearly visible from the driver’s seat. Further, Appellant had $2760 in cash in his pocket and an electronic scale in the trunk. Appellant was the only occupant in the car, and no evidence was adduced that showed anyone else had access to the cocaine or the car, other than Appellant.

      Appellant further argues that the evidence is insufficient to support the State’s contention that Appellant knew that there was cocaine in the car he was driving.

      The State is not required to present direct evidence that Appellant knew there was cocaine in the car. Proof of this knowledge exists in circumstantial evidence. Proof of knowledge is an inference drawn by the trier of fact from all the circumstances. Dillon v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. 1978); Cantu v. State, 944 S.W.2d 669, 670, 671 (Tex. App.—Corpus Christi 1997, pet. ref’d).

      The State established the following affirmative links, thereby showing Appellants knowing possession of the cocaine: 1) Appellant was the driver of the vehicle in which the cocaine was found; 2) Appellant was present when the search was conducted; 3) the contraband was in plain view; 4) Appellant was in close proximity to and had easy access to the contraband; 5) Appellant had the right to possess the place where the drugs were found; 6) the place where the drugs were found was enclosed; 7) Appellant also possessed other contraband in the form of $2760 cash in his pocket and an electronic scale in the trunk of the car.

      The evidence is both legally and factually sufficient to support Appellant’s conviction for possession of cocaine.

      Appellant’s fourth and fifth points of error are overruled.

      The judgment is affirmed.

                                                                         FRANK G. McDONALD

                                                                         Chief Justice (Retired)

Before Chief Justice Davis,

      Justice Gray, and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed April 25, 2001