                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-11-00332-CR

DARRYL LYNN NICKERSON,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 361st District Court
                               Brazos County, Texas
                         Trial Court No. 09-02539-CRF-361


                           MEMORANDUM OPINION


       The jury convicted Darryl Nickerson of unlawful possession of a firearm by a

felon. The trial court assessed punishment at 34 years confinement. We affirm.

                                  Sufficiency of Evidence

       In his second issue, Nickerson argues that the evidence is insufficient to support

his conviction. The Court of Criminal Appeals has expressed our standard of review of

a sufficiency issue as follows:

             In determining whether the evidence is legally sufficient to support
       a conviction, a reviewing court must consider all of the evidence in the
        light most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
        13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
        responsibility of the trier of fact fairly to resolve conflicts in the testimony,
        to weigh the evidence, and to draw reasonable inferences from basic facts
        to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point
        directly and independently to the guilt of the appellant, as long as the
        cumulative force of all the incriminating circumstances is sufficient to
        support the conviction." Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), cert den’d, 183 L.Ed. 2d 71, --

S.Ct. --, 2012 WL 509637, U.S.L.W. 3667 (June 4, 2012).

        The Court of Criminal Appeals has also explained that our review of "all of the

evidence" includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,

326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence

are treated equally: "Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is

well established that the factfinder is entitled to judge the credibility of witnesses and

can choose to believe all, some, or none of the testimony presented by the parties.

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

        Jessica Sweed was previously in a relationship with Nickerson. On March 7,

2009, Jessica, Tilicia Sweed, and Rasheda Henderson, went to Houston for the evening.

Nickerson v. State                                                                          Page 2
On the way home, Jessica was speaking to Nickerson on the phone, and Nickerson was

upset. Tilicia testified that when they arrived at Jessica’s apartment complex, Nickerson

“appeared out of no where.” Nickerson opened the driver’s side door and tried to pull

Jessica out of the truck. Tilicia testified that Nickerson had a gun in his hand. The

police arrived, and Nickerson went into Jessica’s apartment.       Tilicia went into the

apartment with Nickerson.

        Officer Andrew Drake, with the College Station Police Department, testified that

he was dispatched to the Windsor Pointe Apartment complex for a civil disturbance.

The dispatcher informed Officer Drake that there was a potential subject with a firearm.

When he approached the apartment, Jessica and Rasheda were outside screaming.

Officer Drake pulled them away from the apartment. Jessica told Officer Drake that

Nickerson was inside with her children and that he had a gun. Jessica described the

firearm to Officer Drake and stated that Nickerson had approached her in the parking

lot. She said that Nickerson was waving the gun around saying that he would shoot

someone.      Officer Drake testified that Tilicia came out of the apartment and then

Nickerson surrendered and came out of the apartment without the firearm. Jessica gave

officers permission to search her apartment. Officers found a firearm inside of the

apartment matching the description Jessica had given.

        A person who has been convicted of a felony commits an offense if he possesses

a firearm after conviction and before the fifth anniversary of the person's release from

confinement following conviction of the felony. TEX. PENAL CODE ANN. 46.04 (a)(1)

(West 2011). To support a conviction for possession of a firearm, the State must show

Nickerson v. State                                                                 Page 3
(1) that the accused exercised actual care, control, or custody of the firearm, (2) that he

was conscious of his connection with it, and (3) that he possessed the firearm knowingly

or intentionally." Hutchings v. State, 333 S.W.3d 917, 920 (Tex. App.─Texarkana 2011,

pet. ref’d).

        The record shows that Nickerson was released from prison on April 21, 2006.

The incident occurred on March 7, 2009, which is before the fifth anniversary of his

release. Nickerson argues that the evidence is insufficient to show that he possessed the

firearm. Tilicia testified that Nickerson had the gun in his hand. Jessica told Officer

Drake that Nickerson had a gun and was waving it in the air. Jessica described the gun

to Officer Drake, and a gun matching the description was located inside of her

apartment after Nickerson surrendered.        Nickerson later told police that he had

purchased the gun a year before the incident. We find that a rational trier of fact could

have found that Nickerson committed the offense of unlawful possession of a firearm

by a felon. We overrule Nickerson’s second issue.

                            Ineffective Assistance of Counsel

        In his first issue, Nickerson complains that he received ineffective assistance of

counsel. To determine if trial counsel rendered ineffective assistance, we must first

determine whether Nickerson has shown that counsel's representation fell below an

objective standard of reasonableness and, if so, then determine whether there is a

reasonable probability that the result would have been different but for counsel's errors.

Strickland v. Washington, 466 U.S. 668, (1984). We must indulge a strong presumption

that counsel's conduct fell within the wide range of reasonable professional assistance,

Nickerson v. State                                                                   Page 4
and Nickerson must overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy. Stafford v. State, 813 S.W.2d

503, 508-09 (Tex. Crim. App. 1991). An allegation of ineffective assistance must be

firmly founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).

        Nickerson argues that his trial counsel was deficient in five areas:

        1. Counsel did not file a Motion to Suppress the Warrantless Arrest of the
           Appellant.
        2. Counsel failed to Voir Dire the Jury on Appellant’s right against self-
           incrimination, despite knowing Appellant would not testify.
        3. Appellant’s counsel declined to make an opening statement to the
           Jury.
        4. Trial counsel did not move for an instructed verdict at the close of the
           State’s evidence.
        5. Trial counsel should have subpoenaed Jessica Sweed whether or not he
           believed the State would call her, to allow Appellant to confront his
           lone accuser.


        Nickerson must prove that the motion to suppress would have been granted in

order to show that he received ineffective assistance of counsel. Jackson v. State, 973

S.W.2d 954, 957 (Tex. Crim. App. 1998). Nickerson has not provided any evidence in

the record to support a finding that a motion to suppress would have been successful.

        The record shows that during voir dire, the State reminded the jury panel of the

trial court’s instruction that a defendant has the right not to testify.        The State

emphasized Nickerson’s right not to testify and questioned the jury about the right not

to testify.    Nickerson’s trial counsel reminded the jury panel of the trial court’s




Nickerson v. State                                                                    Page 5
instructions. Trial counsel informed the jury that Nickerson was not required to present

any evidence at trial and that the burden was on the State.

        An ineffective assistance claim can be premised upon an attorney's failure to

present witnesses only if the appellant can show that the witnesses were available and

that their testimony would have benefitted him. See Ex parte McFarland, 163 S.W.3d 743,

757-58 (Tex. Crim. App. 2005) Nickerson has not shown that Jessica’s testimony at trial

would have benefitted him. Nickerson has not shown that trial counsel’s decisions

were not based upon sound trial strategy. The record before us does not support a

finding that Nickerson received ineffective assistance of counsel.        We overrule

Nickerson’s first issue.

                                       Conclusion

        We affirm the trial court’s judgment.



                                          AL SCOGGINS

                                          Justice



Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirm
Opinion delivered and filed July 19, 2012
Do not publish
[CRPM]




Nickerson v. State                                                                Page 6
