                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-16-00024-CR



        MICHAEL DUANE NETTLES, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 71st District Court
                Harrison County, Texas
               Trial Court No. 15-0126X




      Before Morriss, C.J., Moseley and Burgess, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                      MEMORANDUM OPINION
           Michael Duane Nettles—convicted by a jury of livestock theft1 based, in part, on a video-

recorded statement he made to officers—asserts on appeal that he was denied effective assistance

of counsel because his trial attorney failed to seek suppression of that statement on the basis that

it was coerced. Because we find no deficiency in counsel’s performance in this regard,2 we affirm

the judgment of the trial court.

           A few days after twelve head of cattle, several pieces of tack, and some tools were taken

from a ranch in Harrison County, some of the cattle were found on a nearby ranch where Nettles

was employed. That discovery led, initially, to an investigation of rancher Stacie Soape and, soon,

to the sheriff’s department interview of Nettles.

           Nettles came, at law enforcement’s invitation, to the Harrison County Sheriff’s Office

where he was interviewed by Deputy Brandon Fletcher and Special Ranger Larry Hand. 3 In the

interview, Nettles admitted being with Soape and a third person on the night of the thefts, but

claimed he participated only in the theft of certain other items, specifically, the copper leads to a

welder. Nettles insisted that he had no foreknowledge of, and did not participate in, the theft of

the cattle. He admitted being with the other two as they moved or released the cattle into a pen at




1
    See TEX. PENAL CODE ANN. § 31.03 (West Supp. 2016). Nettles was sentenced to thirty-five years’ imprisonment.
2
 While counsel did not object to Nettles’ video-recorded statement based on coercion, objections were made on a
number of other grounds, including hearsay, comments on the weight of the evidence, lack of right to cross-examine,
relevance, confrontation, and speculation. All such objections were overruled by the trial court.
3
 Hand was a Special Ranger with the Texas Southwestern Cattle Raisers Association; he was a licensed law
enforcement officer.

                                                          2
Soape’s ranch. This appeal is focused on whether counsel should have objected to the use of the

statement on the basis of its being coerced.

       “Ineffective assistance of counsel claims are evaluated under the two-part test formulated

in Strickland, requiring a showing of both deficient performance and prejudice.” Johnson v. State,

432 S.W.3d 552, 555 (Tex. App.—Texarkana 2014, pet. ref’d) (citing Strickland v. Washington,

466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999)). “To

prevail on his ineffective assistance claims, [Nettles] must prove by a preponderance of the

evidence that (1) his counsel’s representation fell below an objective standard of reasonableness

and (2) the deficient performance prejudiced the defense.” See id. (citing Strickland, 466 U.S. at

687; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000)). “A defendant’s failure to satisfy

one prong of the Strickland test is fatal.” Ex parte Martinez, 195 S.W.3d 713, 730 n.14 (Tex.

Crim. App. 2006). “Thus, we need not examine both Strickland prongs if one cannot be met.”

Johnson, 432 S.W.3d at 555 (citing Strickland, 466 U.S. at 697).

       Nettles asserts that his trial attorney should have sought to suppress the statement, because

it “explicitly depicted the coercive police conduct offensive to the Due Process Clause of the

Constitution of the United States” and Article 38.22 of the Texas Code of Criminal Procedure.

Hence, argues Nettles, his statement was involuntarily given.        Where an appellant alleges

ineffective assistance of counsel based on failure to move to suppress evidence, he or she is

“obliged to prove that a motion to suppress would have been granted.” Jackson v. State, 973

S.W.2d 954, 957 (Tex. Crim. App. 1998). So we must decide whether Nettles has met that

threshold.

                                                3
           We have watched the video-recorded interview, which lasts a little over an hour. We can

find nothing coercive in it. The recording reveals no loud, threatening, or bullying conduct by

either of the two investigators who interviewed Nettles. Fletcher led most of the discussion. He

maintained a polite, even-tempered calm, throughout. He introduced himself to Nettles, explained

Nettles’ Miranda4 warnings, and obtained Nettles’ signature.5 Nettles expressed no confusion or

reluctance to sign. After Fletcher read the warnings to Nettles, he slid the document across the

desk for Nettles to sign and asked him if he understood what had been read to him. Nettles said,

“I understand everything.” What followed was an even, calm, discussion and questioning.

Fletcher explained that he had spoken to Soape and one other suspect and suggested that they had

implicated Nettles in the cattle theft being investigated. Fletcher politely and professionally

explained that Nettles could help himself by being honest with the lawmen. Fletcher told Nettles

that Fletcher had a strong relationship with the district attorney, who would be receptive if Fletcher

related that Nettles co-operated with investigators. Nettles insisted that he had no foreknowledge

of, or involvement in, the theft of livestock; rather, he maintained his involvement was limited to

stealing welder leads to sell the copper in them.

           On appeal, Nettles complains of five specific instances of what he characterizes as

coercion. We address each in turn.




4
    See Miranda v. Arizona, 384 U.S. 436 (1966).
5
 Nettles came to the sheriff’s office on his own and was allowed to leave following the interview. This occurred even
though he was informed that law enforcement had enough evidence to secure an arrest warrant for him that day.
Throughout the interview, Fletcher assured Nettles that he would be allowed to leave that afternoon, even if an arrest
might follow.
                                                          4
        Early in the interview, Fletcher told Nettles, “Everything’s on the table, and by everything,

I mean charges and all. Cooperation may get you a different charge. Non-cooperation may get

you a different charge.” Fletcher said that to Nettles in a firm, professional, conversational tone.

Following that, Fletcher told Nettles, “You know how it works,” and then said “I don’t have to

explain it to you.” None of that was said in a threatening or menacing manner. In fact, based on

the conduct surrounding the Miranda warnings and Fletcher’s later telling Nettles that he had the

most to lose of the known suspects, it appears that Fletcher knew that this was not Nettles’ first

encounter with law enforcement.6 We find nothing coercive in Fletcher’s statements to Nettles

and no basis on which suppression could be successfully argued.

        Fletcher also told Nettles that he “would probably rather take a copper theft than a cattle

theft,” since copper theft is a state jail felony and livestock theft is a third degree felony. This, too,

assumes Nettles’ familiarity with the criminal justice system and that there was a possible choice

of punishment ranges before him. Nothing in the tone or conduct of Fletcher’s statement was

coercive or threatening.

        According to Nettles’ brief, Fletcher also suggested to Nettles that he had a choice between

being a witness or a suspect. Actually, speaking slowly and carefully, Fletcher asked Nettles if he

would rather be a witness or a suspect. Nettles firmly opted to be a witness. Fletcher told Nettles

that he must know something to be a witness and that Fletcher wanted to know what Nettles knew.

Fletcher added that he did not believe Nettles was telling the truth and that Nettles stood to lose


6
 Following his conviction, Nettles pled true to having been previously convicted of burglary of a habitation and
unauthorized use of a motor vehicle; these convictions were used to enhance the available range of punishment.
Another conviction for burglary of a habitation was also proven.
                                                       5
several years of his life to incarceration. We see nothing coercive or threatening here. Fletcher

tried to reason with Nettles. In fact, Nettles is the one who became progressively louder in his

protestations. Fletcher advised Nettles to “ease that down,” referring to Nettles’ tone of voice.

       Next Nettles complains that Fletcher told him that he was offering an “excellent deal

today,” implying “that if he d[id] not confess that he w[ould] be put in jail immediately.” The

record is a bit different. In fact, what Fletcher said is that he was “offering . . . an excellent deal

today, a go home deal today.” Fletcher immediately added that he made no promise that Nettles

would not subsequently be arrested. Rather, Fletcher repeated to Nettles that he would be allowed

to leave the sheriff’s office after the interview. In fact, four minutes before that discussion,

Fletcher stressed that if Nettles told the truth, he would be allowed to go home. Fletcher also stated

that Nettles would be allowed to go home even if he confessed.

       Finally, Nettles points to Fletcher’s statements that Nettles would be “praying for a lesser

charge anyway and I can make that happen” and “my D.A. works with me like clockwork.” This

followed several requests from Fletcher for Nettles to cooperate and tell the truth. Fletcher told

Nettles that his statements did not match other information gleaned in the investigation and that

enough evidence had been acquired to get a warrant for Nettles’ arrest. In context, we do not see

this as threatening or coercive. During the interview, Nettles equivocated and altered his version

of his degree of involvement, gradually admitting his presence at the scene, first denying taking

anything then admitting taking welding leads, and admitting knowing the cattle was stolen and

being with Soape and the other party the night of the theft.



                                                  6
       “When determining whether a confession should have been excluded for violation of the

Constitution of the United States, we must decide whether the confession was voluntary or

coerced.” Moseley v. State, 223 S.W.3d 593, 597 (Tex. App.—Amarillo 2007), aff’d, 252 S.W.3d

398 (Tex. Crim. App. 2008). “Absent [coercive] police conduct causally related to the confession,

there is simply no basis for concluding that any state actor has deprived a criminal defendant of

due process of law.” Colorado v. Connelly, 479 U.S. 157, 164 (1986). From our view of the

whole interview, we see nothing that can be said to be overbearing or threatening to Nettles.

Nothing in the officers’ conduct appears to “overbear the will of the accused and bring about a

confession not freely determined.” Green v. State, 934 S.W.2d 92, 100 (1996).

       Since Nettles has failed to show that a motion to suppress would have been granted, he has

failed to satisfy the first Strickland prong. We overrule his claim of ineffective assistance of

counsel.

       We affirm the trial court’s judgment.



                                               Josh R. Morriss, III
                                               Chief Justice

Date Submitted:       August 10, 2016
Date Decided:         August 24, 2016

Do Not Publish




                                                  7
