In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-06-097 CR
NO. 09-06-098 CR
NO. 09-06-099 CR
NO. 09-06-100 CR
NO. 09-06-101 CR
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DARRELL WAYLAND NICHOLS, Appellant
V.
THE STATE OF TEXAS, Appellee
Jefferson County, Texas
Trial Cause Nos. 95172, 95589, 96055, 96349 and 96702
Darrell Wayland Nichols was convicted of five offenses of burglary of a building. (1) See Tex. Pen. Code Ann. § 30.02(a)(1),(2) (Vernon 2003). In trial cause numbers 95172 and 95589, Nichols pled guilty pursuant to plea bargains, and the trial court deferred adjudication of guilt and placed him on community supervision. Subsequently, the State filed motions to revoke; Nichols pled true to alleged probation violations; the trial court adjudicated his guilt in both cases and sentenced him to one year in a state jail facility in each case. On final sentencing, the trial judge orally pronounced in open court that the "Court will run this sentence [trial cause number 95589] concurrent with your sentence and conviction in Cause No. 95172."
In trial cause numbers 96349, 96702, and 96055, Nichols pled guilty without a plea bargain. The trial court found him guilty in each cause number and sentenced him to one year in a state jail facility in each case. The adjudications of guilt in all five cases occurred on the same day; the trial court called each case separately and disposed of one before calling the next. Four of the sentences (cause numbers 95172, 95589, 96349, and 96702) were ordered to run concurrently. The trial court ordered the sentence in trial cause number 96055 to run consecutively to the four sentences running concurrently.
In each of the five cases, Nichols' counsel filed an Anders brief stating "[t]here are no meritorious issues for appeal." Appellate counsel's briefs in appellate cause numbers 09-06-097 (trial cause number 95172), 09-06-098 (trial cause number 95589), 09-06-099 (trial cause number 96055), 09-06-100 (trial cause number 96349), and 09-06-101 (trial cause number 96702) meet the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Subsequently, Nichols filed a pro se brief raising three issues.
In his first issue, Nichols argues he was denied effective assistance of counsel at the punishment stage because trial counsel did not object to the trial court's "refusal and failure to consider mitigating evidence[.]" The record reveals the trial judge did not refuse to consider mitigating evidence at the punishment stage.
In issue two, Nichols argues his "sentence in each case and the cumulated sentences" constitute cruel and unusual punishment under both the United States and Texas constitutions, and the punishments are grossly disproportionate to the crimes for which he was convicted. Nichols did not raise this issue in the trial court. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App.1996) (claim of cruel and unusual punishment waived by failure to object at trial); Keith v. State, 975 S.W.2d 433, 433-34 (Tex. App.-- Beaumont 1998, no pet.); Tex. R. App. P. 33.1. If the claim was preserved, the general rule is that the punishment is not cruel and unusual if the punishment assessed is within the range prescribed by the legislature. Samuel v. State, 477 S.W.2d 611, 614-15 (Tex. Crim. App. 1972); Jagaroo v. State, 180 S.W.3d 793, 801 (Tex. App.--Houston [14th Dist.] 2005, pet. ref'd). Each of the burglary-of-a-building offenses, as charged in these cases, is a state jail felony and carries a range of punishment of "not more than two years or less than 180 days." See Tex. Pen. Code Ann. §§ 12.35(a), 30.02 (Vernon 2003). In each case, the trial judge assessed punishment at one year in a state jail facility. The range of punishment for each offense is within the range allowed by law. See id, §§ 12.35(a), 30.02.
Regarding the proportionality of a sentence, the reviewing court considers the gravity of the offense and the harshness of the penalty. Keith, 975 S.W.2d at 434. Nichols did not receive the maximum penalty for any of the offenses. Moreover, the trial court ordered the sentences in trial cause numbers 95172, 95589, 96349, and 96702 to run concurrently. The sentence in cause number 96055 was to commence only after the sentences in cause numbers 95172, 95589, 96349, and 96702 "ceased to operate[.]" See Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon 2006); Jagaroo, 180 S.W.3d at 801.
In issue three, Nichols argues trial counsel was ineffective at the punishment stage because he did not object to the "cruel and unusual punishment assessed by the trial court[.]" If the punishment assessed by the trial court was not cruel and unusual and the punishment assessed was not disproportionate to the crimes committed, there was no need to object. See Jagaroo, 180 S.W.3d at 801.
We have determined that this appeal is wholly frivolous. We have independently examined the clerk's record and the reporter's record and find no reversible error. Nichols may file a petition for discretionary review with the Texas Court of Criminal Appeals. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005). The trial court's judgment is affirmed. Appointment of new counsel is not required. Compare Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).
AFFIRMED.
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DAVID GAULTNEY
Justice
Submitted on January 10, 2007
Opinion Delivered January 31, 2007
Do Not Publish
Before McKeithen, C.J., Gaultney and Horton, J.J
1. There was a sixth burglary-of-a-building conviction which Nichols challenged in a brief on the merits. We consider that conviction in a separate appeal.