Nick N.Feizy v. State ( 2015 )


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  •                                                                                    ACCEPTED
    06-14-00230-CR
    SIXTH COURT OF APPEALS
    TEXARKANA, TEXAS
    5/26/2015 11:19:47 AM
    DEBBIE AUTREY
    CLERK
    No. 06-14-00230-CR
    _______________________________________________________
    FILED IN
    6th COURT OF APPEALS
    In the Texas Court of Appeals        TEXARKANA, TEXAS
    Sixth Judicial District at Texarkana 5/26/2015 11:19:47 AM
    __________________________________________DEBBIE AUTREY
    Clerk
    Nick Nima Feizy,
    Appellant,
    v.
    The State of Texas,
    Appellee.
    _________________________________________
    On Appeal from County Court at Law No. 4
    Collin County, Texas
    Cause No. 004-80265-2014
    _______________________________________________________
    APPELLANT’S REPLY BRIEF
    _______________________________________________________
    Charles “Chad” Baruch                        Jim Burnham
    Texas Bar Number 01864300                    Texas Bar Number 03441000
    THE LAW OFFICE OF CHAD BARUCH                JIM BURNHAM, ATTORNEY AT LAW
    3201 Main Street                             6116 N. Central Expy., Ste. 515
    Rowlett, Texas 75088                         Dallas, Texas 75206
    Telephone: (972) 412-7192                    Telephone: (214) 750-6616
    Facsimile: (972) 412-4028                    Facsimile: (214) 750-6649
    Email: baruchesq@aol.com                     Email: jim@jburnhamlaw.com
    Counsel for Appellant
    Table of Contents
    Table of Contents....................................................................................................... i
    Index of Authorities ................................................................................................... i
    Reply Argument ........................................................................................................1
    Prayer .........................................................................................................................5
    Certificate of Compliance ..........................................................................................6
    Certificate of Service .................................................................................................6
    Index of Authorities
    Cases
    Brooks v. State,
    
    323 S.W.3d 893
    (Tex. Crim. App. 2010) .............................................................. 1
    Driskill v. Ford Motor Co.,
    
    269 S.W.3d 199
    (Tex. App.—Texarkana 2008, no pet.)....................................... 1
    King Ranch, Inc. v. Chapman,
    
    118 S.W.3d 742
    (Tex. 2003) ................................................................................. 1
    i
    Reply Argument
    In the civil context, evidence is legally sufficient where it exceeds a
    “mere scintilla.” Driskill v. Ford Motor Co., 
    269 S.W.3d 199
    , 202 (Tex.
    App.—Texarkana 2008, no pet.) (citing King Ranch, Inc. v. Chapman, 
    118 S.W.2d 742
    , 751 (Tex. 2003).        But in the criminal context, “only that
    evidence which is sufficient in character, weight, and amount to justify a
    factfinder in concluding that every element of the offense has been proven
    beyond a reasonable doubt is adequate to support a conviction. There is no
    higher burden of proof in any trial . . . .” Brooks v. State, 
    323 S.W.3d 893
    ,
    917 (Tex. Crim. App. 2010) (Cochran, J., concurring, in which Womack, J.,
    joined).
    The State relies principally on the 911 tape and testimony from the
    officers in arguing sufficiency. And, in the civil context, that would be
    enough. But in this criminal case, the 911 tape, the officers, and Lauren
    presented three different and, in critical respects, conflicting stories to the
    jury. These conflicting stories only undermine confidence in the jury’s
    verdict.
    Lauren’s trial testimony was unambiguous. She testified that the
    assault consisted of Nick “pinching” her with his hands and “poking” her
    1
    with the blunt end of a dental tool.1 When asked under oath where Nick
    pinched and poked her, Lauren responded: “I know it was on my stomach
    and side, my back.”2
    Contrary to the State’s contention, Lauren testified to only one visible
    injury—to her neck. The State asked Lauren point-blank: “Did you have any
    visible marks on your body?” She replied: “On my neck.”3 Lauren never
    testified about any other injuries or visible marks on her body. And at no
    point in her extensive trial testimony, either on direct or cross-examination,
    did Lauren say that Nick did anything her neck; the only time Lauren even
    used the word “neck” was in referring to redness that she never explained. 4
    Of course, as the State notes, the officers saw and photographed what
    they called “scratches” on Lauren’s right side and back.5 The State
    introduced photographs of these “scratches.”6 In actuality, the photographs
    reveal abrasions—wider and more superficial than scratches. They would
    more accurately be described as scrapes.
    Nothing in the evidence—not Lauren’s testimony, not the officers’
    testimony, not the 911 tape—explains how Nick’s alleged “pinching” and
    1
    5 R.R. 66-67.
    2
    5 R.R. 66.
    3
    5 R.R. 69.
    4
    5 R.R. 69.
    5
    5 R.R. 48, 54.
    6
    8 R.R. 5-11.
    2
    “poking” could have caused these wide abrasions. Even the most cursory
    review of the photographs reveals that the State’s explanation7 of long
    fingernails could not possible account for these wide, superficial abrasions.
    The State also relies heavily on Lauren’s testimony that Nick “dug his
    fingers in” when pinching her.8 Again, however, this could not account for
    the abrasions. It was not enough for the State to prove that Lauren had
    injuries; the State had to prove that Nick caused those injuries. In this, the
    State failed.
    This leaves Lauren’s conclusory testimony about pain. When asked if
    Nick caused her pain, Lauren replied: “Yes.”9 She did not explain what
    caused her pain, how it caused her pain, or even whether the pain was
    physical or emotional. This one-word answer falls far short of the “character,
    weight, and amount” necessary to support the jury’s finding of bodily injury.
    The State also defends the sufficiency of the evidence based on
    Lauren’s statement, made during her 911 call, that: “[Nick] pinched me in
    the neck . . . . ”10 But this conflict between Lauren’s statement during the
    911 call and her trial testimony only undermines confidence in the weight
    and quality of the evidence. During trial, the redness on Lauren’s neck was
    7
    State’s Brief at 18.
    8
    5 R.R. 66-68.
    9
    5 R.R. 68.
    10
    State’s Brief at 4 (citing SX8-1).
    3
    front and center. The officers discussed it, the photographs depicted it,
    Lauren testified it was the only visible injury on her body, and even Nick
    spoke about it. Yet despite the obvious centrality of this injury, Lauren never
    testified that Nick did anything to her neck. Far from supporting the jury’s
    verdict, this discrepancy between the 911 call and the trial testimony vastly
    undermines confidence in it.
    This discrepancy is especially troubling because of Lauren’s
    willingness to testify against Nick. This is not a situation, as in many
    domestic violence prosecutions, where the State must rely on 911 tapes and
    officer testimony because the victim has been intimidated into silence.
    Here, Lauren willingly flayed Nick with her trial testimony. In this
    circumstance, any discrepancy between her trial testimony and what she told
    the 911 operator and officers vastly undermines confidence in the verdict.
    Finally, all of this occurs against the troubling backdrop of Lauren’s
    effort to use a family violence finding to obtain sole managing
    conservatorship of the child and move away from Texas without Nick’s
    consent.11 Lauren contacted her divorce attorneys, The Parker Firm, before
    accusing Nick of assault.12 The firm’s website contains instructions on using
    a finding of family violence to gain sole managing conservatorship in a
    11
    6 R.R. 14, 55-56.
    12
    5 R.R. 86.
    4
    custody battle.13 Just a week after contacting this firm, Lauren alleged that
    Nick assaulted her.
    In the end, the State proved beyond any measure of doubt that Lauren
    had injuries; the photographs depict redness on her neck and abrasions on
    her back and side. But the State failed to introduce evidence of the
    “character, weight, and amount” necessary to support the jury’s finding of
    bodily injury. As a result, the evidence does not support the conviction.
    Prayer
    Because the conviction rests on legally insufficient supporting
    evidence, this Court should reverse the trial court’s judgment and render a
    judgment of acquittal.
    Respectfully submitted,
    /s/Charles “Chad” Baruch
    Texas Bar Number 01864300
    THE LAW OFFICE OF CHAD BARUCH
    3201 Main Street
    Rowlett, Texas 75088
    Telephone: (972) 412-7192
    Facsimile: (972) 412-4028
    Email: baruchesq@aol.com
    Counsel for Appellant
    13
    6 R.R. 60.
    5
    Certificate of Compliance
    This brief was prepared using Microsoft Word for Mac. Relying on
    the word count function in that software, I certify that this brief contains 946
    words (excluding the cover, tables, signature block, and certificates).
    /s/Charles “Chad” Baruch
    Certificate of Service
    The undersigned certifies that a true and correct copy of this
    instrument was served this 26th day of May, 2015, by efiling and email,
    upon the following counsel of record for appellees:
    John Rolater
    Texas Bar Number 00791565
    Assistant Criminal District Attorney
    OFFICE OF THE COLLIN COUNTY DISTRICT ATTORNEY
    2100 Bloomdale Road, Suite 200
    McKinney, Texas 75071
    jrolater@co.collin.tx.us
    /s/Charles “Chad” Baruch
    6
    

Document Info

Docket Number: 06-14-00230-CR

Filed Date: 5/26/2015

Precedential Status: Precedential

Modified Date: 4/17/2021