Affirmed and Opinion filed April 12, 2016.

In The

Fourteenth Court of Appeals

NO. 14-15-00259-CR

JORDAN DWAYNE NICHOLS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 4 

Brazoria County, Texas

Trial Court Cause No. 194143

O P I N I O N

As part of a plea agreement, appellant Jordan Dwayne Nichols pleaded 

guilty to the misdemeanor offense of possession of drug paraphernalia. More than 

two years later, appellant filed a post-conviction writ of habeas corpus contending 

that his guilty plea was involuntary because trial counsel rendered ineffective

assistance. Appellant’s post-conviction writ was denied, and appellant appealed. 

We affirm.
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BACKGROUND

A Pearland police officer stopped appellant after appellant failed to signal

when exiting a grocery store parking lot on May 7, 2012. The officer approached 

appellant’s vehicle and detected a strong odor of marijuana. When the officer 

asked appellant if there was any marijuana in the vehicle, appellant responded that 

there was marijuana in the center console.

Appellant was charged with the Class B misdemeanor offense of possession 

of marijuana. See Tex. Health & Safety Code Ann. § 481.121(b)(1) (Vernon 

2010). The State offered to reduce the offense to a Class C misdemeanor charge 

for possession of drug paraphernalia if appellant pleaded guilty. See id. § 

481.125(d) (Vernon 2010). Appellant accepted the State’s offer and pleaded guilty 

on August 23, 2012; punishment was assessed at a fine of $500. Appellant also 

completed a drug awareness class before punishment was assessed.

Appellant filed a post-conviction writ of habeas corpus on September 16, 

2014. See Tex. Code Crim. Proc. Ann. art. 11.09 (Vernon 2015). Appellant 

alleged that his plea was involuntary based on the incomplete or inadequate advice 

of counsel. After a hearing, the trial court denied appellant’s writ on February 27, 

2015. The trial court signed findings of fact and conclusions of law on June 23, 

2015. Appellant timely appealed.

ANALYSIS

In two issues, appellant contends that his guilty plea was involuntary 

because it resulted from trial counsel’s erroneous advice and failure to perform an 

adequate legal investigation. Specifically, appellant contends that trial counsel 

failed to recognize a key legal issue concerning the legality of the traffic stop; as a 
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result, appellant contends, counsel erroneously failed to advise him not to pursue a 

motion to suppress evidence obtained from the search of appellant’s car.

A guilty plea resulting from ineffective assistance of counsel is not knowing 

and voluntary. Ex parte Niswanger, 335 S.W.3d 611, 614-15 (Tex. Crim. App. 

2011), abrogated in part on other grounds by Cornwell v. State, 471 S.W.3d 458 

(Tex. Crim. App. 2015). Competent advice requires that an attorney conduct 

independent legal and factual investigations sufficient to provide a firm command 

of the case and the relationship between the facts and each element of the charged 

offense. Id. at 615. To prevail on a claim of ineffective assistance of counsel, an 

appellant must show that (1) counsel’s performance was deficient because it fell 

below an objective standard of reasonableness; and (2) the deficient performance 

prejudiced the defense. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 

2011) (citing Strickland v. Washington, 466 U.S. 668, 689 (1984)). 

To satisfy the first prong, appellant must prove by a preponderance of the 

evidence that trial counsel’s performance fell below an objective standard of 

reasonableness under the prevailing professional norms. Id. A defendant must 

overcome the presumption that trial counsel’s actions fell within the wide range of 

reasonable and professional assistance. See Garza v. State, 213 S.W.3d 338, 348 

(Tex. Crim. App. 2007). If counsel’s reasons for his conduct do not appear in the 

record and there is at least the possibility that the conduct could have been 

grounded in legitimate trial strategy, we will defer to counsel’s decisions and deny 

relief on an ineffective-assistance claim. Id.

To satisfy the second prong, appellant must show that there is a reasonable 

probability — or a probability sufficient to undermine confidence in the outcome 

— that the result of the proceeding would have been different but for counsel’s 

unprofessional errors. Lopez, 343 S.W.3d at 142. For claims related to the 
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entering of a plea, the appellant shows prejudice by demonstrating a reasonable 

probability that, but for counsel’s errors, he would not have pleaded guilty and 

would have insisted on going to trial. Niswanger, 335 S.W.3d at 615. And, where 

counsel’s alleged ineffectiveness is premised on counsel’s failure to pursue a 

motion to suppress, the appellant must prove that the motion to suppress would 

have been granted. See Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 

1998).

We consider the totality of the circumstances in determining whether 

counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 

1999). Failure to satisfy either prong of the Strickland test defeats an ineffectiveassistance claim. Strickland v. Washington, 466 U.S. 668, 697 (1984).

The only potential reason identified in the police officer’s report for 

appellant’s traffic stop was that the officer observed appellant “exit the [grocery 

store] parking lot southbound onto Reid Road without signaling.” 

The Texas Transportation Code requires an operator to use a turn signal to 

indicate an intention to turn, change lanes, or start from a parked position when a 

vehicle is being operated on a highway.1 See Tex. Transp. Code Ann. § 545.104 

(Vernon 2011). In State v. Ballman, 157 S.W.3d 65 (Tex. App.—Fort Worth 2004, 

pet. ref’d), the court of appeals analyzed whether section 545.104 applied to a turn 

made from a private driveway onto a public highway. The court of appeals 

concluded that section 545.104’s signaling requirement does not apply to vehicles 

turning from a private parking lot onto a highway. Id. at 70. Because the court of 

appeals concluded that the appellant in Ballman was not required under section 

 

1 A highway is defined as “the width between the boundary lines of a publicly maintained 

way any part of which is open to the public for vehicular travel.” Tex. Transp. Code Ann. § 

541.302(5) (Vernon 2011). Appellant does not dispute that the road he turned onto from the 

grocery store parking lot was a highway under the statute.
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545.104 to signal before turning onto the highway from the private parking lot, the 

court further concluded that the police officer who stopped the appellant for failing 

to signal “did not observe a traffic violation under section 545.104 of the 

transportation code and therefore had no probable cause to stop or arrest 

appellant.” Id. 

Appellant contends, based on Texas Transportation Code section 545.104 

and Ballman, that the police officer who stopped appellant did not have probable 

cause or reasonable suspicion for the traffic stop. Appellant argues that, had his 

trial counsel conducted an appropriate pre-trial legal investigation, his trial counsel 

would have advised him to pursue a motion to suppress the evidence and not plead 

guilty to the lesser offense.

The State called appellant’s trial counsel as a witness during the hearing on 

appellant’s writ of habeas corpus. Appellant’s trial counsel testified that during his 

investigation of appellant’s case he reviewed the relevant Texas Transportation 

Code section. He also testified that he “came across [case law] that indicated that 

it’s not a requirement per the Texas Transportation Code to signal your intent to 

turn after exiting a private drive or a parking lot.” However, appellant’s trial 

counsel testified that he also discovered a potentially relevant section of the City of 

Pearland municipal code:

Sec. 29-189. – When turn signals required.

No person shall turn any vehicle without first giving an 

appropriate signal in the event any other traffic may be affected by 

such movement. Such signal of intention to turn right or left, when 

required, shall be given continuously during not less than the last one 

hundred (100) feet traveled by the driver of such vehicle before 

turning.

See Code of Ordinances, City of Pearland, Texas, § 29-189 (2004), 

https://www.municode.com/library/tx/pearland/codes/code_of_ordinances.
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Appellant’s trial counsel testified that, based on the Pearland municipal 

ordinance, he believed there to be some uncertainty whether a motion to suppress 

would be granted. Moreover, the State informed appellant’s trial counsel that the 

plea offer would be rescinded if appellant pursued a motion to suppress, and that 

no further plea offers would be made. Accordingly, appellant’s trial counsel 

testified that, based on his research and his interpretation of the statutes, he advised 

appellant that he believed it to be in appellant’s best interest to accept the State’s 

plea bargain of the reduced Class C misdemeanor offense.

Appellant contends that trial counsel’s advice was objectively deficient 

because counsel’s reliance on the Pearland municipal code was misplaced. Texas 

Transportation Code section 542.201 provides that “[a] local authority may not 

enact or enforce an ordinance or rule that conflicts with [Title 7, Subtitle C of the 

Transportation Code] unless expressly authorized by this subtitle. However, a 

local authority may regulate traffic in a manner that does not conflict with this 

subtitle.” See Tex. Transp. Code Ann. § 542.201 (Vernon 2011). Relying on 

section 542.201 and State v. Patterson, 291 S.W.3d 121 (Tex. App.—Amarillo 

2009, no pet.), appellant contends that the Pearland municipal ordinance 

impermissibly conflicts with the Texas Transportation Code. 

In Patterson, the appellant was stopped for violating an Amarillo municipal 

ordinance prohibiting an individual from walking along a highway with his back to 

traffic. 291 S.W.3d at 122. The Amarillo municipal code additionally defined 

“highway” as a roadway divided into two roadways “by leaving an intervening 

space, or by a physical barrier, or by a clearly indicated dividing section between 

the two (2) roadways.” Id. Finding that the roadway where the appellant was 

stopped was not divided by an intervening space, physical barrier, or clearly 

indicated divider, the trial court concluded that the traffic law relied on by the 
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officer was inapplicable and the officer therefore had no legitimate basis for 

stopping the appellant. Id. 

The Amarillo Court of Appeals reversed, concluding that “Amarillo’s 

definition of ‘highway’ can be read as conflicting with the definition of the same 

term mentioned in § 541.302(5) of the Transportation Code.” Id. at 124. The court 

noted that, while the Texas Transportation Code prohibits walking with one’s back 

to traffic along a highway, the Amarillo municipal code does not so long as there is 

no intervening space, physical barrier, or clearly marked divider on the roadway. 

Id. Accordingly, the court of appeals concluded that, to the extent the municipal 

ordinance allowed an action prohibited by the Texas Transportation Code, the 

municipal ordinance impermissibly conflicted with the Texas Transportation Code. 

See id.

Patterson is distinguishable from the situation before us. The Pearland 

ordinance at issue requires drivers to signal at least 100 feet before turning; appears 

to apply to all roadways; and makes no distinction between drivers already on a 

roadway and those entering a roadway.2 See Code of Ordinances, City of Pearland, 

Texas, § 29-189 (2004), https://www.municode.com/library/tx/pearland/codes/

code_of_ordinances. Unlike the Amarillo ordinance at issue in Patterson, the 

Pearland municipal ordinance is more restrictive than the Texas Transportation 

Code — not more lenient. The Pearland ordinance does not attempt to make legal 

 

2 Appellant contends in a post-submission brief that the Pearland ordinance requires 

drivers to signal only if other traffic may be affected by such movement, and that “traffic,” as 

defined by the statute, includes only vehicles using a publicly maintained street. Appellant’s

inference appears to be that a vehicle on private property cannot affect traffic on a publicly 

maintained street. We disagree. A vehicle turning from private property onto a publicly 

maintained street can affect traffic on that street. The Pearland ordinance requires only that the 

vehicle’s turn may affect traffic on the publicly maintained street — not that the turning vehicle 

itself be on the publicly maintained street. See Code of Ordinances, City of Pearland, Texas, §

29-189 (2004), https://www.municode.com/library/tx/pearland/codes/code_of_ordinances.
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something the Texas legislature has explicitly restricted by statute. Accordingly, 

we conclude the Pearland ordinance does not conflict with Texas Transportation 

Code section 545.104, but instead constitutes a permissible further regulation of 

traffic as allowed by section 542.201.

Having concluded that the Pearland municipal ordinance does not conflict 

with the Transportation Code, we must determine whether trial counsel’s advice 

that appellant accept the State’s plea bargain was deficient because it fell below an 

objective standard of reasonableness. Considering the uncertainty surrounding the 

applicable law and the potential negative consequences of appellant going forward 

with a speculative outcome on a motion to suppress, we conclude that appellant 

has not satisfied Strickland’s first prong.

The State informed appellant’s trial counsel that its plea bargain would be 

rescinded if appellant pursued a motion to suppress. Accordingly, appellant’s trial 

counsel had to make a judgment call regarding the relative risks of foregoing a 

take-it-or-leave-it plea bargain versus moving forward with a motion to suppress, 

the outcome of which was uncertain. 

Even assuming for the sake of argument that the Pearland ordinance 

impermissibly conflicted with the Texas Transportation Code, the success of 

appellant’s proposed motion to suppress would have turned on a determination that 

the only basis for the police officer’s traffic stop of appellant was appellant’s 

failure to signal when turning from the parking lot. As noted above, the police 

officer’s report indicates that appellant’s traffic stop was premised on appellant

leaving the grocery store parking lot without signaling. However, it is possible that 

at a hearing on the motion to suppress the police officer would have testified to 

additional, valid reasons for the traffic stop not identified in the officer’s report,
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thereby negating appellant’s argument that the motion would succeed under the 

Texas Transportation Code and Ballman. 

As we have discussed above, however, there is an argument to be made that

appellant’s unsignaled turn onto the highway itself provided reasonable suspicion 

for appellant’s traffic stop. Unlike in Ballman where the court of appeals 

concluded that Texas Transportation Code section 545.104 does not apply to 

vehicles turning from private parking lots onto highways, the State here contended 

that, even if a signal was not required under the Texas Transportation Code, it was 

nevertheless required under the Pearland’s Code of Ordinances. See Ballman, 157 

S.W.3d at 70, 70 n.2 (specifically noting no contention was made that the 

unsignaled turn constituted a violation of the Fort Worth Code). Appellant’s trial 

counsel testified at the writ hearing that he was unaware of any case law 

interpreting or applying the Pearland ordinance. We have not found any, nor has 

appellant directed us to any such case law. Appellant’s trial counsel could not 

have known how the trial court would interpret the Pearland municipal ordinance, 

and therefore could not have known with any reasonable degree of certainty how 

the trial court would have ruled on a motion to suppress. The trial court made a 

finding that “[trial counsel] recognized that the Court’s interpretation of the 

Pearland Municipal Code could lead to a denial of the motion to suppress.”

Based on the record before us, we cannot say that trial counsel’s legal 

investigation was inadequate. Appellant’s trial counsel testified that he considered 

the relevant sections of the Texas Transportation Code, the relevant case law, and 

the Pearland municipal ordinance in advising appellant to accept the State’s plea 

bargain. The trial court found trial counsel’s testimony to be credible.

Nor can we conclude that trial counsel’s advice to accept the plea bargain 

was unreasonable considering the unsettled state of the law regarding the interplay 
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between the Texas Transportation Code and the Pearland’s Code of Ordinances;

the uncertainty of the applicability of the Pearland municipal ordinance to the case 

at hand; and that appellant’s pursuit of a motion to suppress would have resulted in 

the State’s withdrawal of its favorable plea bargain. See, e.g., Ex parte Smith, 296 

S.W.3d 78, 81 (Tex. Crim. App. 2009) (where law was unclear regarding whether 

appellant’s deferred adjudication constituted conviction under unlawful possession 

of firearm statute and appellant was offered generous plea bargain, court concluded 

that counsel’s advice to plead guilty was not ineffective assistance).

Finally, we reject appellant’s argument that his plea was involuntary based 

on trial counsel’s alleged statements to appellant and appellant’s mother that no 

conviction would appear on appellant’s record if appellant accepted the State’s 

plea bargain.3 Contrary to appellant’s assertion, trial counsel testified that he 

informed appellant there would be a conviction — just not a conviction for the 

originally charged offense of possession of marijuana:

[TRIAL COUNSEL:] Well, I told him that it would go on his record 

in terms of it being a Class C, that it never goes away but that that 

would prevent the original charge of Class B from being a conviction. 

The arrest was still there. Nothing we could do about that. But in 

terms of the conviction itself, it would not result in a Class B 

misdemeanor being on his record with all the attendant other collateral 

consequences, driver’s license suspensions and whatnot.

The trial court sits as the sole judge of credibility and demeanor of witnesses in a 

habeas proceeding brought under article 11.09 of the Texas Code of Criminal 

Procedure, and we may not disturb its rulings absent a clear abuse of discretion. 

 

3

To the extent appellant’s brief can be read to include an argument that his guilty plea 

was involuntary because he was not informed of the option of deferred adjudication, we reject 

that argument as well. Trial counsel testified, and the trial court made a finding, that trial 

counsel discussed deferred adjudication with appellant. No evidence was presented that deferred 

adjudication had been offered by the State.
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Ex parte Martinez, 451 S.W.3d 852, 856 (Tex. App.—Houston [14th Dist.] 2014, 

pet. ref’d). We defer to the trial court’s findings of fact that are supported by the 

record. Id. In its findings of fact, the trial court found that “[trial counsel] did not 

tell [appellant] that the Class C conviction would come off his record.” The trial 

court further found trial counsel’s testimony to be credible, and found the 

testimony of appellant and appellant’s mother was not credible. We defer to the 

trial court’s findings, and do not conclude that the trial court abused its discretion. 

Accordingly, we will not disturb its ruling. See id.

Based on the foregoing, we find no merit in appellant’s ineffectiveassistance-of-counsel claim, and that appellant’s guilty plea was therefore 

knowingly and voluntarily made. Accordingly, we overrule appellant’s issues.

CONCLUSION

Having overruled appellant’s issues, we affirm the trial court’s denial of 

appellant’s post-conviction writ of habeas corpus.

/s/ William J. Boyce

Justice

Panel consists of Chief Justice Frost and Justices Boyce and Wise.

Publish — Tex. R. App. P. 47.2(b).