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
Nick N.Feizy v. State
Combined Opinion