Kendall Glen Nichols v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-03-00009-CR ______________________________ KENDELL GLEN NICHOLS, Appellant  V.  THE STATE OF TEXAS, Appellee                                               On Appeal from the 354th Judicial District Court Hunt County, Texas Trial Court No. 19,045                                                  Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION             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.             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. § 481.103(a)(3) (Vernon 2003) (amphetamine penalty group 2 drug); Tex. Health & Safety Code Ann. § 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.             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.             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.             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.             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.‒Austin 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).             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.             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.             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. Nichols then asked the trial court to sentence him to community supervision with a condition that he receive strict out-patient drug treatment.             Through its cross-examination of Nichols and other witnesses, the State showed that Nichols was already on community supervision for a state jail felony drug conviction in Dallas at the time he was arrested on the charges in this case and that he also had drug charges pending in Rockwall at the time of the sentencing hearing. Nichols also admitted that, when he was arrested in this case, he had in his possession sixty-seven tablets of Diezapan (Valium), over half a pound of marihuana, electronic scales, a soldering torch (used to cook methamphetamine), and a pistol.             In this case, the punishment assessed by the trial court was ten years' imprisonment. This is at the low end of the range permitted under Texas law. See Tex. Pen. Code Ann. § 12.32(a) (Vernon 2003). There is no evidence in the record before us of any plea agreement or of a promise of community supervision from either the State or the trial court. To the contrary, Nichols' own testimony on direct examination affirmatively refutes the existence of any such promise of leniency. Accordingly, we affirm the trial court's judgment.                                                                                     Josh R. Morriss, III                                                                                     Chief Justice  Date Submitted:          October 1, 2003 Date Decided:             October 17, 2003 Do Not Publish 4 4 2 4; mso-font-charset:0; mso-generic-font-family:swiss; mso-font-format:other; mso-font-pitch:variable; mso-font-signature:3 0 0 0 1 0;} /* Style Definitions */ p.MsoNormal, li.MsoNormal, div.MsoNormal {mso-style-unhide:no; mso-style-qformat:yes; mso-style-parent:""; margin:0in; margin-bottom:.0001pt; mso-pagination:none; mso-layout-grid-align:none; text-autospace:none; font-size:12.0pt; font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman"; mso-fareast-theme-font:minor-fareast;} p.MsoFootnoteText, li.MsoFootnoteText, div.MsoFootnoteText {mso-style-noshow:yes; mso-style-priority:99; mso-style-link:"Footnote Text Char"; margin:0in; margin-bottom:.0001pt; mso-add-space:auto; text-align:justify; text-justify:inter-ideograph; mso-pagination:widow-orphan; 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E. WILLIAMS, Appellee                                                                                                                                             On Appeal from the County Court at Law No. 2                                                             Gregg County, Texas                                                       Trial Court No. 94-000316-P                                                                                                                                               Before Morriss, C.J., Carter and Moseley, JJ.                                              Memorandum Opinion by Justice Carter                                                      MEMORANDUM OPINION             Prior to his death in 1987, Edwin Roscoe Williams left his will “to an attorney in Houston to be probated.” In 1994, Edwin’s brother James N. E. Williams discovered that the attorney had not initiated probate proceedings. James filed the will, and it was probated as a muniment of title. The will named James as administrator of the estate, bequeathed assets remaining after payment of debt to children Audwin Glenn Williams and Jacqueline Kay Williams McClendon, and specified that no provision was made to “any other child or children.” In addition, no assets were left to Edwin’s wife.            In 2010, Edwin’s son from a previous marriage, Edwin Roscoe[1] Williams, Jr., filed a “will contest and motion to set aside order admitting will for probate as a muniment of title.”   Roscoe’s contest alleged that the trial court lacked jurisdiction to admit the will to probate more than four years after Edwin’s death. James asserted in a motion for summary judgment that Roscoe’s collateral attack on the order admitting the will to probate, filed more than sixteen years after the order, was barred by the statute of limitations. In response, Roscoe argued that the discovery rule applied because James had fraudulently informed the court that Edwin had never been divorced in the “proof of death and other facts.” Roscoe also alleged that the transfer of assets was fraudulent because he had never received notice of the proceedings and because “the Will was not self-proving on its face and [was] admitted based upon deliberate false information.” Roscoe appeals the trial court’s order granting James’ summary judgment and ordering that Roscoe take nothing by way of his claims. I.        Standard of Review             We review de novo the grant of a traditional motion for summary judgment.  Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).  To prevail on a motion for summary judgment, the movant must conclusively establish the absence of any genuine question of material fact and that judgment is available as a matter of law.  Tex. R. Civ. P. 166a(c); Browning v. Prostok, 165 S.W.3d 336, 344 (Tex. 2005).  A defendant moving for summary judgment must conclusively negate at least one element of the plaintiff’s theory of recovery or plead and conclusively establish each element of an affirmative defense.  Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).  If the defendant establishes his or her right to summary judgment, the burden shifts to the plaintiff to raise a genuine issue of material fact.  Id.            The question on appeal here is not whether the summary judgment proof raises a fact issue with reference to the essential elements of Roscoe’s cause of action, but whether the summary judgment proof establishes that James is entitled to judgment as a matter of law.  French v. Gill, 252 S.W.3d 748, 751 (Tex. App.—Texarkana 2008, pet. denied) (citing Gonzalez v. Mission Am. Ins. Co., 795 S.W.2d 734, 736 (Tex. 1990)).  In reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, indulge every reasonable inference in favor of the nonmovant, and resolve any doubts in the nonmovant’s favor.  Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006). If the nonmovant asserts that the statute of limitations has been tolled, it becomes the movant’s burden to “conclusively negate the tolling provision’s application” before summary judgment may be awarded.  French, 252 S.W.3d at 751 (quoting Allen v. Intercapital Lodge Ltd. P’ship, 66 S.W.3d 351, 353 (Tex. App.—Houston [14th Dist.] 2001, pet. denied)). II.      Application             “No will shall be admitted to probate after the lapse of four years from the death of the testator unless it be shown by proof that the party applying for such probate was not in default in failing to present the same for probate within the four years aforesaid.”  Tex. Prob. Code Ann. § 73 (West 2003). Roscoe argued that the trial court erred in admitting the will for probate in 1994 without “proof that Defendant was not in default” and that, therefore, the court was without jurisdiction to admit the will for probate. However, James averred in the “proof of death and other facts” that Edwin’s will “was turned over to an attorney in Houston to be probated. Applicant only recently discovered that no action had been taken by said attorney.” At the time the court admitted the will for probate, it found James’ statement true and recited “that all the necessary proof required for probate of the will” was made. James’ contention sought to demonstrate that he was not in default in failing to present the will for probate within four years of Edwin’s death because he believed the will would be probated by the attorney. The contention was not contested prior to the order admitting the will for probate as a muniment of title.            The argument was not raised until 2010 in the form of a will contest.[2] Section 93 of the Texas Probate Code provides: After a will has been admitted to probate, any interested person may institute suit in the proper court to contest the validity thereof, within two years after such will shall have been admitted to probate, and not afterward, except that any interested person may institute suit in the proper court to cancel a will for forgery or other fraud within two years after the discovery of such forgery or fraud, and not afterward. Provided, however, that incapacitated persons shall have two years after the removal of their disabilities within which to institute such contest.  Tex. Prob. Code Ann. § 93 (West 2003). The “will contest and motion to set aside order admitting will for probate” was filed outside the permissible statute of limitations.            Roscoe alleged that the Section 93 limitations period was tolled by fraudulent statements made by James in the proof of death and other facts. The discovery rule applies in cases of fraud, fraudulent concealment, and in other cases where the nature of the injury is inherently undiscoverable. Murphy v. Campbell, 964 S.W.2d 265, 270 (Tex. 1997). However, Roscoe testified under oath that he discovered the existence of the will “between 1990 and 2000.” He further admitted that he had “spoke[n] to an attorney that said [Edwin] turned [the will] over to him.” An action to set aside a final probate of a will as a muniment of title cannot be maintained when the action is not filed until sixteen years after probate of the will and approximately ten years after the plaintiff discovered that the will had been probated. Fortinberry v. Fortinberry, 326 S.W.2d 717, 720 (Tex. Civ. App.—Waco 1959, writ ref’d n.r.e.).            We find that James established his entitlement to summary judgment as a matter of law. III.     Conclusion             We affirm the trial court’s judgment.                                                                                               Jack Carter                                                                                  Justice  Date Submitted:         November 21, 2011 Date Decided:            December 14, 2011       [1]We refer to Edwin Roscoe Williams, Jr., as “Roscoe” to avoid confusion with the name of the decedent. [2]Roscoe’s “will contest and motion to set aside order admitting will for probate,” which was filed under the same cause number as the probate proceeding, was not a collateral attack upon the order. A. & M. College of Tex. v. Guinn, 280 S.W.2d 373, 377 (Tex. Civ. App.—Austin 1955, writ ref’d n.r.e.). Therefore, this is a direct, not a collateral, proceeding. Id.