GRANT and ABATE and Opinion Filed June 30, 2021
In the
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01137-CR
NICHOLAS RYAN NADEAU, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 296th Judicial District Court
Collin County, Texas
Trial Court Cause No. 296-83228-2018
MEMORANDUM OPINION
Before Justices Schenck, Reichek, and Carlyle
Opinion by Justice Carlyle
Officer Colton Roelofs regularly surveils two convenience stores in Frisco
because they are the only ones in the area known to sell methamphetamine pipes.
On the night of March 24, 2018, he noticed Nicholas Nadeau enter one of the stores
wearing a shirt from a rival convenience store. He thought that was odd, so he
decided to follow Nadeau after he left the store, hoping Nadeau would commit a
traffic offense that would allow him to initiate a traffic stop as pretext for
investigating drug activity.
Immediately after Roelofs pulled out behind Nadeau, Nadeau turned into the
parking lot at the second convenience store. Roelofs initiated a traffic stop, claiming
that Nadeau failed to continuously signal for 100 feet before turning. See TEX.
TRANSP. CODE § 545.104(b). Roelofs questioned Nadeau about whether he
possessed drugs and asked for consent to search the car. After Nadeau denied
consent, Roelofs walked around the car with his K-9, and the dog alerted on the car.
At that point, Nadeau admitted he had methamphetamine and marijuana in the car’s
center console, which a search later confirmed.
The grand jury indicted Nadeau for possessing between four and two hundred
grams of methamphetamine. Nadeau moved to suppress evidence from the search,
arguing that it flowed from an illegal traffic stop. According to Nadeau, he did not
commit a traffic violation, and Roelofs thus had no reasonable suspicion to initiate
the encounter. The key issue at the suppression hearing was whether Roelofs had an
objectively reasonable basis to believe Nadeau failed to signal continuously for 100
feet before turning. Roelofs testified based on his own observations that Nadeau
signaled at most twenty-five feet before turning. Daryl Parker, an experienced
investigator and former police officer, testified for Nadeau. Parker analyzed dash-
cam footage from Roelofs’s car and concluded, based on measurements taken from
the scene and reflections of light visible in the video, that Nadeau signaled at least
162 feet before turning.
Despite Parker’s testimony, and the video evidence, the trial court denied the
motion to suppress, stating:
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Excellent investigation, I think, but we are not limited to what the video
camera says. We are to take into consideration all of the evidence as a
whole, including the officer’s testimony. Just think about the days when
we didn’t have video cameras at all. And so the motion to suppress is
denied.
Nadeau entered a “not guilty” plea to the charge and a “not true” plea to the
State’s enhancement allegation. The jury found him guilty, found the enhancement
allegation was true, and assessed punishment at 25 years’ confinement, with a
$6,956.00 fine.
Nadeau’s appellate attorney has filed a motion to withdraw and a brief in
which he concludes Nadeau’s appeal is wholly frivolous and without merit. See
Anders v. California, 386 U.S. 738 (1967). Counsel appears to have delivered a copy
of both the brief and the appellate record to Nadeau, and we advised Nadeau of his
right to file a pro se response, which he did. See Kelly v. State, 436 S.W.3d 313, 319–
21 (Tex. Crim. App. 2014).
“An appeal is ‘wholly frivolous’ or ‘without merit’ when it ‘lacks any basis in
law or fact.’” Crowe v. State, 595 S.W.3d 317, 319 (Tex. App.—Dallas 2020, no pet.)
(quoting McCoy v. Court of Appeals, 486 U.S. 429, 438 n.10 (1988)). Arguments are
frivolous only when they “cannot conceivably persuade the court.” Id. (quoting
McCoy, 486 U.S. at 436). An appeal is not “wholly frivolous” when it is based on
arguable grounds. Id.
When we receive an Anders brief, we must review the record and make an
independent determination of whether there are any arguable grounds for the appeal.
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See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). If we conclude
appellate counsel exercised professional diligence and agree the appeal is frivolous,
we should grant counsel’s motion to withdraw and affirm the trial court’s judgment.
Id. But if we conclude either that counsel has not adequately reviewed the record for
arguable error or that the appeal is not wholly frivolous, “we must abate the appeal
and return the cause to the trial court for the appointment of new appellate counsel.”
See id.
Having reviewed counsel’s brief, Nadeau’s pro se response, and the record,
we conclude there is at least one arguable issue—whether the trial court erred by
denying Nadeau’s motion to suppress. We therefore grant counsel’s motion to
withdraw, strike the Anders brief filed in this Court, and remand the case to the trial
court. See id. The trial court shall appoint a new attorney to investigate the record
and file a brief on the merits that presents all arguable grounds for appeal, including
but not limited to the non-frivolous ground identified above.
We abate the appeal to allow the trial court to comply.
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/Cory L. Carlyle/
CORY L. CARLYLE
191137f.u05 JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
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