Nix, Thomas Lee
PD-1237-14
Tex. App.Feb 3, 2015Background
- In March 2010 Thomas Lee Nix was arrested at a Best Western in Wylie, Texas; he was charged with resisting arrest, indecent exposure, and unlawful possession/use of an inhalant (lacquer/paint thinner). A jury convicted him and assessed jail terms (one year for resisting arrest, 60 days for indecent exposure, 180 days for the inhalant offense).
- The State introduced a multi-clip DVD compiled from the motel’s surveillance system; Nix objected that the DVD was an altered, edited, unoriginal compilation and that he lacked access to the original, unedited footage to test authenticity and completeness.
- Nix argued he was effectively denied court‑appointed counsel (claiming the court applied an income‑only standard and denied partial indigency), was forced to proceed pro se, and repeatedly requested continuances to secure a material witness (the motel manager) and obtain raw video evidence; the court denied continuances.
- Nix also asserted the officers unlawfully detained and used excessive force against him, argued evidence discovered after the alleged unlawful detention and a warrantless room search should have been suppressed, and sought reversal on sufficiency and evidentiary grounds.
- The Fifth Court of Appeals (Dallas) issued a memorandum opinion affirming the convictions, rejecting Nix’s sufficiency, evidentiary, continuance, and right‑to‑counsel complaints as either unsupported or forfeited by failure to preserve error; the Court of Criminal Appeals docketed the discretionary review petition.
Issues
| Issue | Nix’s Argument | State/Appellate Response | Held |
|---|---|---|---|
| Admissibility/authentication of surveillance DVD (Confrontation/Best Evidence) | DVD was an altered, edited, unoriginal compilation; trial court erred in admitting it without authenticating by the person who prepared it and without the original footage; Sixth Amendment confrontation/Best Evidence violation | Nix did not preserve the authentication complaint at trial (stated no objection when exhibit offered); the record lacked preserved objection to the admission | Court of Appeals: issue forfeited; admission did not require reversal under preserved record |
| Denial of court‑appointed counsel / proceeding pro se | Trial court applied an improper, income‑only standard and denied appointment or partial indigency; waiver of counsel was not knowing/voluntary | Record contained indigency flow sheets showing income >125% poverty and no prima facie indigence shown in appellate record; defendant failed to establish trial court erred in denial | Court of Appeals: no reversible error—defendant did not make prima facie showing of indigence; waiver upheld |
| Denial of continuance to secure material witness and original footage | Nix requested continuance (unsuccessfully) because subpoenas were not served and raw video was unavailable; denial prejudiced his defense | Motion for continuance was unsworn/oral at trial; statutory rules require sworn written motion to preserve appellate review | Court of Appeals: issue forfeited under statute; denial not reviewable on appeal |
| Suppression of evidence from alleged unlawful detention / warrantless search (Fourth Amendment) | Officers lacked reasonable suspicion; evidence discovered after unlawful detention and room search should have been suppressed | No motion to suppress or specific trial objection appears in record; evidence of room items was also admitted via witness testimony without objection, curing any error | Court of Appeals: complaint not preserved; convictions supported by other admissible testimony; no reversible error |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for reviewing sufficiency of evidence)
- Terry v. Ohio, 392 U.S. 1 (U.S. 1968) (detention on reasonable suspicion standard)
- United States v. Sokolow, 490 U.S. 1 (U.S. 1989) (reasonable‑suspicion analysis under Terry)
- Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011) (reasonable‑suspicion and stop analysis)
- McFatridge v. State, 309 S.W.3d 1 (Tex. Crim. App. 2010) (indigency—prima facie showing and record requirement)
- Gonzales v. State, 304 S.W.3d 838 (Tex. Crim. App. 2010) (standards for continuance and prejudice analysis)
- Darty v. State, 193 S.W.2d 195 (Tex. Crim. App. 1946) (unsworn oral continuance may be reviewed on equitable grounds)