Eric Boro Nichols A/K/A Eric Baro Nichols v. State ( 2011 )

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
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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MEMORANDUM OPINION1
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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
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