ACCEPTED
03-14-00655-CR
5200327
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/7/2015 4:26:09 PM
JEFFREY D. KYLE
CLERK
Case No. 03-14-00655-CR
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
5/7/2015 4:26:09 PM
IN THE COURT OF APPEALS JEFFREY D. KYLE
Clerk
THIRD JUDICIAL DISTRICT
AUSTIN, TEXAS
NATHANIEL J. FRAZIER, JR., Appellant
vs.
THE STATE OF TEXAS, Appellee
BRIEF FOR APPELLANT
IN ACCORDANCE WITH ANDERS v. CALIFORNIA
On Appeal from Cause Number D-13-0958-SA
in the 391 sT District Court, Tom Green County, Texas
Prepared by:
Justin S. Mock
Ellis & Mock, PLLC
125 South Irving Street
San Angelo, Texas 76903
Telephone: (325) 486-9800
Facsimile: (325) 482-0565
Texas State Bar Number 24064155
Justin@ellisandmock.com
Court Appointed Attorney
for Appellant Nathaniel J. Frazier, Jr.
Identity Of Parties And Counsel
In accordance with Rule 38.1(a), Texas Rules of Appellate Procedure,
Counsel for Appellant certifies the following is a complete list of parties and counsel
known to be legally interested in the resolution of the instant appeal.
Mr. Jason Ferguson
Office of Tom Green County District Attorney
124 West Beauregard Avenue
San Angelo, Texas 76903
Appellee
Mr. Nathaniel J. Frazier, Jr.
TDCJ No. 01942796
John B. Connally Unit
899 PM 632
Kenedy, TX 78119
Appellant
/s/ Justin S. Mock
Justin S. Mock, Attorney for Appellant
1
TABLE OF CONTENTS
IdentityOfParties And Counsel ..................................................................................... i
Table Of Contents .......................................................................................................... ii
Index Of Authorities ....................................................................................................... v
Statement Of The Case ................................................................................................. vii
Issues Presented .......................................................................................................... viii
Issue Number One: Sufficiency of the indictment.
Issue Number Two: Any adverse pretrial rulings affecting the course of the trial,
including but not limited to rulings on motions to suppress, motions to quash, and
motions for a speedy trial.
Issue Number Three: Any adverse rulings during trial on objections or motions,
including but not limited to objections to admission or exclusion of evidence,
objections premised on prosecutorial or judicial misconduct, and motions for mistrial.
Issue Number Four: Any adverse rulings on post-trial motions, including motions for
a new trial.
Issue Number Five: Jury selection.
Issue Number Six: Jury Instruction.
Issue Number Seven: Sufficiency of the evidence, including a recitation of the
elements of the offense and facts and evidence adduced at trial relevant to the offense
upon which conviction is based.
Issue Number Eight: Any failure on the part of appellant's trial counsel to object to
fundamental error.
11
Issue Number Nine: Any adverse rulings during the punishment phase on objections
or motions.
Issue Number Ten: Whether the sentence imposed was within the applicable range of
punishment?
Issue Number Eleven: Whether the written judgment accurately reflects the sentence
that was imposed and whether any credit was properly applied?
Issue Number Twelve: Examination of the record to determine if the appellant was
denied effective assistance of counsel.
StatementOfTheFacts .................................................................................................... 1
Summary Of The Argument Ofissue Number One ...................................................... 3
Argument Ofissue Number One ..................................................................................... 3
Summary Of The Argument Ofissue Number Two ........................................................ 5
Argument Ofissue Number Two ..................................................................................... 5
Summary Of The Argument Ofissue Number Three .................................................... 12
Argument Ofissue Number Three ................................................................................ 12
Summary Of The Argument Ofissue Number Four................................................... 17
Argument Ofissue Number Four............................................................................... 17
Summary Of The Argument Ofissue Number Five ...................................................... 17
Argument Ofissue Number Five ................................................................................... 18
Summary Of The Argument Ofissue Number Six ....................................................... 18
Argument Ofissue Number Six .................................................................................... 18
111
Summary Of The Argument Of Issue Number Seven ................................................... 20
ArgumentOflssueNumberSeven ................................................................................ 20
SummaryOfThe Argument Oflssue Number Eight. ................................................. 36
Argument Oflssue Number Eight. ................................................................................. 37
Summary Of The Argument Of Issue Number Nine ..................................................... 37
Argument Oflssue Number Nine .................................................................................. 37
SummaryOfThe Argument Of Issue Number Ten ........................................................ 37
Argument Oflssue Number Ten .................................................................................... 37
SummaryOfThe Argument Oflssue Number Eleven ................................................... 39
Argument Oflssue Number Eleven ............................................................................ 39
SummaryOfThe Argument Oflssue Number Twelve .................................................. 40
ArgumentOflssueNumberTwelve .............................................................................. 40
Anders Brief.................................................................................................................. 44
Prayer .................................................................................................................................. 46
Certificate of Service ..................................................................................................... 4 7
Certificate of Compliance .................................................................................................. 48
Copy of Anders Correspondence Addressed ToNathaniel J. Frazier, Jr ...................... 49
iv
INDEX OF AUTHORITIES
CASE LAW PAGE
Aguilar v. State, 682 S.W. 2d556 (Tex. Crim. App.1985) .................................. 20
Andersv. California, 87 S. Ct.1396(1967) ........................................................... .1,44,45
Ashby v. State, 646 S.W.2d 641 (Tex.App. -Ft. Worth 1983) ........................... 10
Billodeauv. State, 277 S.W. 3d34 (Tex. Crim. 2009) ....................................... 14
Bonev. State, 77 S.W. 3d 828 (Tex. Crim. App. 2002) ....................................... 42
Brooksv. State, 323 S.W. 3d 893(Tex. Crim. App. 2010) ..................................... 21
Devia v. State, 718 S.W.2d 72 (Tex. App. -Beaumont 1986, no pet.) ................. 16
Drueryv. State, 225 S.W. 3d491 (Tex. Crim.App.2007) ................................. 20
Ex Parte Charlesworth, 600 S.W.2d 316 (Tex.Crim.App.[Panel Op.] 1980) .... , ......... 9
Ex Parte Rubac, 611 S.W.2d 848 (Tex.Crim.App.[Panel Op.] 1981) .... , ............... 7,8
Gearv. State, 340 S.W. 3d 743 (Tex. Crim.App. 2011) ..................................... 22
Hall v. State, 158 S.W.3d 470 (Tex. Crim.App. 2005) .................................... .19
Hernandezv. State, 988 S.W. 2d 770(Tex. Crim.App.1999) .............................. 40
Hernandezv. State, 726 S.W. 2d53 (Tex. Crim. App.1986) ............................... 42
Jackson v. Virginia,443 U.S. 307 (1979) ...................................................... 21
Malletv. State, 65 S.W. 3d 59 (Tex. Crim. App. 2001) .................................. 42-43
Martinezv. State, 327 S.W. 3d 727 (Tex. Crim. App. 20 10) ................................ .14
Mitchell v. State, 68 S.W. 3d 640 (Tex. Crim. App. 2002) .................................. 42
v
Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App. 1990) ............................ 8
Rousseau v. State, 855 S.W.2d 666 (Tex.Crim.App. 1993) ................................ 20
Sandoval v. State, 03 -11-00416-CR, September 13, 2013 ................................... 14
Stricklandv. Washington,466V.S. 668 (1984) ......................................................... 40-41
Thompson v. State, 9 S.W. 3d 808 (Tex. Crim. App.1999) ...........................41,42,43
Threadgill v. State, 146 S.W.3d 654(Tex.Crim.App. 2004) ...................................... .19
Tillman v. State, 354 S.W. 3d425 (Tex. Crim. App. 2011) ................................. 14
STATUTES PAGE
Texas CodeofCriminalProcedureArticle.17.15 ......................................................... 7
Texas Code of Criminal Procedure Article. 21.02 ...................................................... 3,4
Texas Family Code Section 71.0021(b) .................................................................... 38
Texas Penal Code Section2.0 1................................................................ 20
Texas Penal Code Section 12.33 ............................................................... 38
Texas Penal Code Section 12.42 ..................................................................................... 38
Texas Penal CodeSection22.01 ........................................................ 21,37-38
Texas Rule ofAppellate Procedure 21.8 ...................................................... 17
Vl
STATEMENT OF THE CASE
Nature of the Case:
In District Court Cause Number D-13-0958-SA, Nathaniel J. Frazier, Jr. was
charged by indictment with having committed the offense of Assault of a
Family/Household Member by Impeding Breathing or Circulation, a third degree
felony. I C.R. 13-14. The indictment included an enhancement paragraph
referencing a previous felony conviction exposing Frazier to the punishment range
for a second degree felony. I C.R. 13-14.
Course of Proceedings:
Nathaniel J. Frazier. Jr., entered a plea of not guilty to the indictment and proceeded to
jury trial on July 14, 2014. IX R.R. 12.
Trial Court's Disposition of the Case:
At the conclusion of a two day jury trial, Nathaniel J. Frazier, Jr. the jury found guilty
of Assault of a Family/Household Member by Impeding Breathing or Circulation as
alleged in the indictment. X R.R. 178; I C.R. 34-37; II C.R. 110. The trial court
found the enhancement paragraph to be true. XI R.R. 16; I C.R. 34-37. The trial
court assessed punishment and Frazier was sentenced to eighteen ( 18) years in TDCJ.
XI R.R. 16; I C.R. 32, 34-3 7.
Vll
ISSUES PRESENTED
A review of the complete Record results in an absence of finding any
meritorious issues to be advanced in good faith on appeal. Any conceivable
issues result from the following considerations:
1. Was the indictment sufficient to support Nathaniel J. Frazier, Jr.'s
conviction?
2. Did the trial judge err in any of the court's pretrial rulings, including but not
limited to rulings on motions to suppress, motions to quash, and motions
for a speedy trial, which adversely impacted Nathaniel J. Frazier, Jr.?
3. Did the trial judge err in anyofthe court's rulings during the course of trial,
including but not limited to objections to admission or exclusion of
evidence, objections premised on prosecutorial or judicial misconduct,
and motions for mistrial, which adversely impacted Nathaniel J. Frazier,
Jr.?
4. Did the trial judge err in anyofthe court's post trial rulings, including on a
motion for new trial, which adversely impacted Nathaniel J. Frazier, Jr.?
5. Does the record indicate reversible error occurred during or in connection
with jury selection?
6. Does the record indicate correct instructions were provided to the jury?
7. Was the evidence presented at trial sufficient to support Nathaniel J. Frazier,
Jr.'s conviction?
8. Does reversible error exist based on the failure of Counsel for Nathaniel J.
Frazier, Jr. to object to fundamental error?
9. Did the trial judge err in any of the court's rulings during the punishment
phase of trial which adversely impacted Nathaniel J. Frazier, Jr.?
10. Is Nathaniel J. Frazier, Jr.'s sentence within the applicable punishment
viii
range for a habitual felony offender?
11. Does the Judgment accurately reflect the sentence imposed by the trial
court and properly apply jail credit toNathaniel J. Frazier, Jr.'s sentence?
12. Did Attorney John Sutton render ineffective assistance of counsel toNathaniel
J. Frazier, Jr.?
lX
To the Honorable Justices of the Third Court of Appeals:
Appellant, Nathaniel J. Frazier, Jr., submits this Brief on appeal by and
through his Appellate Counsel, Justin S. Mock. After a conscientious examination
of the case, including a diligent review of the Record and applicable authorities,
Counsel finds an absence of meritorious grounds for appeal and further submits
the basis of any appeal in this case would be frivolous in nature. Therefore,
Appellate Counsel Justin S. Mock submits the following Anders Brief on behalf of
Appellant. Anders v. State of California, 386 U.S. 738 (1967).
STATEMENT OF THE FACTS
Nathaniel J. Frazier, Jr. was charged by indictment with having committed
the offense of assault of a family/household member by impeding breathing or
circulation, a third degree felony. I C.R. 13-14. The indictment included an
enhancement paragraph referencing a prior felony conviction exposing Frazier to
the punishment range for a second degree felony. I C.R. 13-14. The trial court
appointed attorney Danny Hardesty to represent Frazier on September 4, 2013. I
C.R. 9. 0 n March 3 , 2 0 1 4, the tria 1 court r e 1i eve d Hardesty
and appointed John Sutton to represent Frazier. I C.R.
2 5. The case proceeded to jury trial on July 14, 2014.
1
The State's case against Frazier sought to establish the following facts
and circumstances at trial: Frazier and Salinas were engaged in an intimate dating
relationship; Frazier and Salinas argued on September 2, 2013, at her residence in
San Angelo, Tom Green County, Texas; Frazier joined Salinas and her family at
Lake Nasworthy that day; Frazier returned to Salinas' home that night and
assaulted Salinas; Frazier struck Salinas, threw her to the ground and choked her,
causing her to be unable to breathe.
Defense counsel aggressively cross examined the State's witnesses and
argued the State ultimately failed to prove that the alleged victim was assaulted by
Frazier.
At the conclusion of the guilt/innocence phase of trial, the jury found
Frazier guilty of assault of a family/household member by impeding breathing or
circulation. X R.R. 178; II C.R. 110. At the conclusion of the punishment phase
of trial, the trial court found the enhancement paragraph contained in the
indictment to be true and assessed punishment at eighteen (18) years in TDCJ.
XI R.R. 16; C.R. 34-37.
Frazier filed a Motion for New Trial and Motion in Arrest of Judgment on July 17,
2014. I C.R 38-39. Frazier filed Notice Of Appeal with the trial court on October 10,
2014. I C.R. 48. Frazier now appeals his conviction and sentence to this Honorable
2
Third Court of Appeals.
SUMMARY OF ARGUMENT OF ISSUE NUMBER ONE
The indictment was sufficient to support Frazier's conviction.
ARGUMENT OF ISSUE NUMBER ONE
Article 21.02 of the Texas Code Of Criminal Procedure lists the requisites
of an indictment. Texas Code Of Criminal Procedure, Article 21.02. In order for
an indictment to be deemed sufficient, Article 21.02 requires the following:
1. It shall commence, "In the name and by authority of The State of
Texas·"
'
2. It must appear that the same was presented in the district court of the
county where the grand jury is in session;
3. It must appear to be the act of a grand jury of the proper county;
4. It must contain the name of the accused, or state that his name is
unknown and give a reasonable accurate description of him;
5. It must show that the place where the offense was committed is
within the jurisdiction of the court in which the indictment is
presented;
6. The time mentioned must be some date anterior to the presentment
3
of the indictment, and not so remote that the prosecution of the
offense is barred by limitation;
7. The offense must be set forth in plain and intelligible words;
8. The indictment must conclude, "Against the peace and dignity of the
State·" and
'
9. It shall be signed officially by the foreman of the grand jury." Texas
Code Of Criminal Procedure, Article 21.02.
The essential elements relevant to the oflense vvi1h which Frazier was charged are
contained in Section 22.01 of the Texas Penal Code. Texas Penal Code Section
22.01. A person commits the offense of assault if they
intentionally, knowingly, or recklessly causes bodily injury to another, including
the person's spouse. Texas Penal Code Section 22.01.
Section 22.01 (b )(2) states, in pertinent part, that Assault is a third degree
felony if "committed against a person whose relationship to or association with the
defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code,"
and "by intentionally, knowingly, or recklessly impeding the normal breathing or
circulation of the blood of the person by applying pressure to the person's throat or
neck or by blocking the person's nose or mouth." Texas Penal Code Section
22.01(b).
4
Section 71.0021(b) of the Texas Family Code defines a "dating
relationship," as:
"a relationship between individuals who have or have
had a continuing relationship of a romantic or intimate
nature. The existence of such a relationship shall be
determined based on consideration of:
(1) the length of the relationship;
(2) the nature of the relationship; and
(3) the frequency and type of interaction between the
persons involved in the relationship." Texas Family
Code Section 71.0021 (b).
The language of the indictment complies with all of the requirements of Texas
Code Of Criminal Procedure Article 21.02 and includes all of the essential elements
of Texas Penal Code Section 22.0 1. There is no indication that the indictment was
insufficient. Reversible error does not exist based on an insufficient indictment.
SUMMARY OF ARGUMENT OF ISSUE NUMBER TWO
No adverse pretrial rulings resulted in reversible error.
ARGUMENT OF ISSUE NUMBER TWO
The Reporter's transcript includes several pretrial hearings which took place
over the course of Frazier's case. Upon his arrest, bond was initially set at
$150,000.00. I C.R. 8. It appears from the Clerk's record that a hearing was held
before the magistrate to address Frazier's request for a bond reduction. II C.R. 8-
10. It does not appear that a record was made of this proceeding, and Frazier's
5
request was denied by the magistrate. I C.R. 12.
Upon indictment, Frazier's bond was changed to $75,000.00. I C.R. 13.
The Record reflects the trial court conducted three hearings concerning Frazier's
bond. On November 25, 2013, a hearing was held on the State's Motion to
Increase Bond. II C.R. 10-11. The State sought an increase of bond to
$150,000.00. Frazier, through his counsel, sought for the bond to be lowered or
remain at $75,000.00. The testimony and evidence presented at the hearing
indicated Frazier had, through correspondence from jail, discussed changing his
name and getting a new driver's license and been in contact with people in
Michigan. Testimony was also presented that Frazier had attempted to contact the
victim, and that the victim feared him. II R.R. 12-13. The trial court found that
Frazier had attempted to contact the victim, and granted the motion and increased
the bond amount to $100,000.00. II R.R. 26-27; I C.R. 15.
On January 2, 2014, a hearing was held on Frazier's "Application for Writ
of Habeas Corpus and Motion for Reasonable Bail." I C.R. 16-21; III R.R. 1.
The testimony at the hearing largely focused on Frazier's medical condition and
the need for surgery. III R.R. 4-13. Following the hearing, the trial court denied
the motion without prejudice to the request being renewed by the defense. The
trial court requested specific information concerning the surgery and where it
6
would be conducted, and reserved its right to change its ruling upon receiving that
information. III R.R. 14-16; I C.R. 23.
On June 27, 2014, the trial court addressed Frazier's "Motion for Personal
Recognizance Bond or In the Alternative, Motion to Reduce Bond (Humanitarian
Request." II C.R. 54-55. The evidence presented at the hearing included that'
Frazier was unable to meet the current bond, and that he wished to attend the
funeral for his brother. V R.R. 5-8. At the conclusion of the hearing the trial
court denied the request for a personal recognizance bond, but granted Frazier's
request for a bond reduction. V. R.R. 10. The bond was reduced to $75,000.00.
V R.R. 10; I C.R. 30.
In setting a bail amount, the trial court should consider: 1) bail should be
sufficiently high to give reasonable assurance that the undertaking will be
complied with; 2) the power to require bail is not be used as an instrument of
oppression; 3) the nature and circumstances of the offense; 4) the ability to make
bail; and 5) the future safety of the alleged victim and the community. Texas
Code of Criminal Procedure Art. 17.15. Other factors should also be considered,
such as the accused's work record, family and community ties, residency length,
prior criminal record, compliance with former bond conditions, outstanding
bonds, and aggravated circumstances and the range of punishment of the offense
7
charged. Ex Parte Rubac, 611 S.W. 848, 849-850 (Tex. Crim. App. [Panel Op.]
1981).
A trial court's denial of a bond reduction is reviewed for an abuse of
discretion. Ex Parte Rubac, 611 S.W. 848, 850 (Tex. Crim. App. [Panel Op.]
1981 ). In determining whether a court abused its discretion, it must be determined
whether the court "acted without reference to any guiding rules or principles, or
whether the act was arbitrary or unreasonable." Montgomery v. State, 810 S.W.
2d 372, 380 (Tex. Crim. App. 1990).
On November 25, 20 13, evidence was presented to the court regarding
Frazier's intent to change his name, ties to people in Michigan, efforts to contact
the victim, prior incidents involving Frazier and the victim, and the victim's fear
of Frazier. II R.R. 12-15. As Frazier's indictment included a provision setting his
bond at $75,000.00 and requiring no contact with the victim, the trial court was
not arbitrary or unreasonable in raising the bond upon receiving evidence of
Frazier's repeated contact efforts.
On January 2, 2014, the trial court heard evidence that Frazier was unable
to make bond, which was then set at $100,000.00. III R.R. 5-6. The trial court
also heard testimony from Frazier that he needed surgery, perhaps due to cancer.
III R.R. 7-1 0; I C.R. 20. The trial court took notice of the evidence that was
8
presented at the bond hearing on November 25, 2013, including Frazier's attempts
to contact the victim, his plans to change his name, his contact with people in
another state, and the victim's continuing fear of Frazier. III R.R. 14; II R.R. 12-
13. Based on the evidence presented, the trial court was not arbitrary or
unreasonable in denying Frazier's motion. The trial court did not abuse its
discretion.
At the bond reduction hearing on June 27, 2014, Frazier again testified that
he was unable to make his current bond. V R.R. 6. Frazier sought a personal
recognizance bond to allow him to attend his brother's funeral. In the alternative,
Frazier requested a bond reduction to $15,000.00, as his family or friends would
be able to make the necessary down payment for a bond of that amount. V R.R.
6-8. After taking judicial notice of the prior hearings to the extent they could be
recalled, the trial court denied the request for a P.R. bond, but granted a bond
reduction to $75,000.00. V R.R. 10-11. Inability of a defendant to make bail is a
factor to be considered, but that factor alone does not control the amount of bail.
Ex Parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. [Panel Op.]
1980). The burden to show the bond was excessive and warranted reduction
rested with Frazier. The testimony offered failed to meet that burden in light of
the evidence offered at prior bond hearings. The trial court did not abuse its
9
discretion in denying Frazier's request for a P.R. bond.
A thorough review of the record reveals no error in the trial court's rulings
concerning Frazier's bond.
The trial judge has the responsibility to determine whether or not out-of-
state witnesses are material and necessary before issuing a certificate to a sister
state requesting that those out-of-state witnesses be subpoenaed to testify in
criminal matters in this State. Accordingly, it is incumbent upon appellant to
prove to the trial court that the out-of-state witness is material and necessary. The
trial court's determination, as such, will not be overruled on appeal absent abuse
of discretion. Ashby v. State, 646 S.W.2d 641, 643 (Tex.App. 1983).
In the instant case, Attorney Sutton filed an Application and Motion to
Secure A Material and Necessary Out-of-State Witness as to Miran Frazier of
Michigan, Betel T. Frazier of Michigan, Rich Lester of Michigan, Karl Maydwell
ofNew Mexico, and Guy Sohov ofMichigan. II C.R. 59-78. In the filings, it was
asserted that each witness knew Frazier was a faithful husband, knew Frazier's
residence during relevant times, and knew of Frazier's reputation for truthfulness
and being a law-abiding citizen. II C.R. 59-78. It was also asserted that Karl
Maydwell and Guy Sohov "may have knowledge about the theft of Defendant's
briefcase and the bank check that was inside the briefcase by Sandra Salinas." II
10
C.R. 71-72, 75-76. The trial court denied the requests. I C.R. 31.
The hearing on the requests took place on July 1, 2014. VII R.R. 1. At the
hearing, Frazier testified that the witnesses included his wife, uncles, cousin, and
attorney. VII R.R. 8-9. Frazier testified that while none of the witnesses were in
San Angelo, Texas at the time of the alleged incident, Betel T. Frazier and Karl
Maydwell were on the telephone with him from the time he arrived at the location
until his telephone died at around the time he was detained in the sheriffs vehicle.
VII R.R. 10-12. Frazier testified that Sohov was his federal lawyer and he had
records of the conversation between Frazier and his wife. VII 15-19. Frazier
testified that he was with his wife and Maydwell before coming to San Angelo on
September 2, 20 13, and they would provide testimony as to why he came to San
Angelo. VII R.R. 20-21. Frazier testified that he believed each of the witnesses
would appear for trial without a subpoena. VII R.R. 23.
After hearing evidence and argument, the trial court denied the motions
citing a lack of materiality of the witnesses and the likelihood that they would
appear voluntarily. Miran Frazier and Rich Lester's anticipated general character
testimony did not rise to a level of being material or necessary. General
testimony regarding a telephone conversation or records of that conversation,
absent more detail, did not establish to the trial court that the testimonies of Betel
11
T. Frazier, Karl Maydwell, or Guy Sohov were material or necessary. The trial
court did not abuse its discretion in denying the requests to secure out-of-state
witnesses.
In reviewing the record as a whole, no pre-trial rulings of the trial court
resulted in reversible error.
SUMMARY OF ARGUMENT OF ISSUE NUMBER THREE
No adverse rulings during trial resulted in reversible error.
ARGUMENT OF ISSUE NUMBER THREE
During the trial, there were several rulings adverse to Frazier. In the
testimony of Sandra Salinas, Counsel for the State and Defense brought to the
trial court's attention an issue concerning the use of a prior felony conviction of
Salinas for impeachment purposes. Counsel for the State objected to the use of
the prior conviction by the defense. IX R.R. 95-96. After Counsel for Frazier
took Salinas on voir dire, the trial court sustained the objection under Rule 609 of
the Texas Rules of Evidence. IX R.R. 98-99.
Prior to Frazier testifying, a hearing was held outside the presence of the
jury on the issue of the admissibility of evidence of a prior conviction of Frazier
for impeachment purposes. Frazier's counsel objected that Frazier was not the
12
same person convicted and also that the prejudicial effect of admitting the
conviction would outweigh the probative value.
At the hearing, Frazier testified that he was not the same person convicted
of Involuntary Manslaughter in the Michigan judgment. He was advised of his
rights under the Fifth Amendment and given an opportunity to recant. He refused
to recant. Prior to the trial court's ruling, Counsel for Frazier objected that the
convictions fell outside the time limits imposed by Rule 609. X R.R. 25-26.
The trial court initially ruled that while the individual previously convicted
was likely Frazier, the prejudicial effect of allowing such impeachment evidence
outweighed the probative value. X R.R. 26-29. Later, following the direct
examination of Frazier, the testimony of Terri Adams was taken outside the
presence of the jury concerning her examination of Frazier's fingerprints
compared to the Michigan felony judgment. X R.R. 71-7 4. Counsel for Frazier
again argued that the conviction was not admissible as it exceeded the time limit
provided in Rule 609. The trial court ruled that while the conviction may not be
admissible for impeachment purposes under Rule 609, it was admissible for other
purposes. The trial court permitted the State to ask Frazier about the previous
convictions in the presence of the jury. X R.R. 82, 90-91.
An erroneous admission of an appellant's prior conviction will be reversed
13
only if the admission affected his substantial rights by exerting 'a substantial and
injurious effect or influence in determining the jury's verdict.' "The error is
harmless if we have 'fair assurance that the error did not influence the jury, or had
but a slight effect." In this case, in reviewing the record as a whole it is clear that
admitting Frazier's prior convictions had minimal effect on the jury. It is more
likely that the corroborated testimony of the victim, the photographs and tangible
items admitted into evidence, and the other evidence presented which supported
the verdict, resulted in a finding of guilt.
In addition to the above, there were other minor objections that resulted in rulings
adverse to Frazier. An appellate court applies the abuse of discretion standard
when reviewing a trial court's ruling on the admission or exclusion of evidence.
Tillman v. State, 354 S.W. 3d 425, 435 (Tex. Crim. App. 2011); Sandoval v. State,
03-11-00416-CR, September 13, 2013. The trial court will not be found to have
abused its discretion unless its decision "lies outside the zone of reasonable
disagreement." Martinez v. State, 327 S.W. 3d 727, 736 (Tex. Crim. App. 2010);
Sandoval v. State, 03-11-00416-CR, September 13, 2013. The reviewing court
considers the trial court's ruling based on the evidence before the trial court at the
time of the ruling and the trial court's decision should be upheld if it lies within the
zone of reasonable disagreement. Billodeau v. State, 277 S.W. 3d 34, 39 (Tex.
14
Crim. 2009); Sandoval v. State, 03-11-00416-CR, September 13, 2013.
During the cross-examination of Sandra Salinas, the defense sought to
establish information as to whether her business sold synthetic drugs. IX R.R.
107. The State objected to the relevance of the matter, and the trial sustained the
objection. IX R.R. 108. The trial court did not abuse its discretion in finding that
inquiry to be irrelevant. Thereafter, the State objected to a compound question
posed by defense counsel. The objection was sustained by the court, defense
counsel re-phrased the questions and obtained the information he sought. There
was no error or harm in the court's ruling.
The State objected to the testimony of Victor Dancer, and his testimony
was taken outside the presence of the jury. X R.R. 31. Following his testimony,
the State specified that the objection was to testimony regarding specific conduct
of the victim, Sandra Salinas. X R.R. 37. The trial court sustained the objection
and ruled Dancer would be permitted to testify as to his opinion of the victim's
truthfulness or untruthfulness. X R.R. 37. Counsel for Frazier argued that the
testimony sought to be elicited would be evidence of a pertinent character trait of
a victim and was admissible under Texas Rule of Evidence 404. X R.R. 38. The
trial court reiterated its previous ruling. X R.R. 39.
During the direct examination of Thomas Moriarty, the State offered
15
Exhibit 23, purported jail correspondence from Frazier, and Counsel for Frazier
objected to the authenticity of the document. X R.R. 112-113. The trial court
overruled the objection and admitted State's Exhibit 23. X R.R. 113. Moriarty
testified that he identified the correspondence as Frazier's based on the content.
Texas Rule of Evidence 901 provides that evidence can be authenticated by its
contents or other factors. X R.R. 113. Detective Moriarty's testimony was
evidence sufficient to support a finding that the item was Frazier's
correspondence.
The State called Sasha Smith as a rebuttal witness. Counsel for Frazier
objected that Smith was not included on the witness list provided by the State
pursuant to the trial court's discovery order. X R.R. 122.
The State cannot anticipate exactly which rebuttal witnesses will become
necessary until the defense rests. Devia v. State, 718 S.W.2d 72, 74 (Tex.App.--
Beaumont 1986, no pet.). If the State calls a rebuttal witness, the burden is on the
defendant to show the prosecution acted in bad faith in failing to disclose the
name of the witness. !d. The defense provided no evidence or argument that the
State acted in bad faith or that the defense was unfairly surprised. The trial court
did not abuse its discretion in allowing the testimony.
There is no indication the trial judge abused his discretion in rendering
16
any rulings adverse to Frazier during the trial. Based on a thorough review of
the Record and applicable legal authorities, no reversible error exists based on
adverse rulings made during trial.
SUMMARY OF ARGUMENT OF ISSUE NUMBER FOUR
No adverse rulings on post-trial motions resulted in reversible error.
ARGUMENT OF ISSUE NUMBER FOUR
A Motion For New Trial was filed on behalf of Frazier on July 17, 2014. I
C.R. 38-39. It does not appear a full hearing on the Motion For New Trial was
requested or took place, which is not uncommon. The Record is void of any
indication the trial court ruled on the Motion For New Trial and Motion in Arrest of
Judgment. Such a motion, if not ruled upon within 75 days after imposing or
suspending sentence, will be deemed denied after the expiration of the 75 day
period. Texas Rules ofAppellate Procedure 21. 8. There is no indication that the
trial court abused its discretion in failing to rule on Frazier's Motion For New
Trial, and no reversible error exists based on adverse rulings on post-trial motions.
SUMMARY OF ARGUMENT OF ISSUE NUMBER FIVE
Reversible error does not exist based on jury selection.
17
ARGUMENT OF ISSUE NUMBER FIVE
The Reporter's transcript documents the jury selection process. VIII R.R. 4-
136. The State and the Defense had an opportunity to conduct their own voir dire.
VIII R.R. 50-120. The Clerk's Record contains documentation of strikes exercised by
the State and the Defense during the jury selection process. I I C.R. 91-96. The
Reporter's Transcript reflects the District Clerk swore in the individuals selected to
serve on the jury as required by law. VIII R.R. 130. The record reflects the trial
judge issued preliminary instructions to the empaneled jurors as required by law.
VIII R.R. 131-136; II C.R. 103-104. There is no indication based on a thorough
review of the Record that any error took place during the jury selection process
resulting in reversible error.
SUMMARY OF ARGUMENT OF ISSUE NUMBER SIX
Reversible error does not exist based on the instructions provided to the jury.
ARGUMENT OF ISSUE NUMBER SIX
The Record documents the instructions provided to the jury by the trial
judge. I I C . R . 1 0 5 - 1 1 0 . The Reporter's transcript reflects the trial judge
read the jury instructions out loud before the jury began deliberations during the
guilt/innocence phase of trial. X R.R. 148. The jury instructions are included
18
1n the Clerk's Record. II C.R. 1 0 5- 11 0. The Reporter's transcript reflects
charge conferences were conducted prior to the presentation of the charge to the
jury. X R.R. 133-146. Attorney Sutton objected to the charge due to lack of
inclusion of an instruction on the lesser-included offense of Class A assault. X
R.R. 135-137. Sutton argued that the lesser-included offense could arise if the
jury found less than the required proof for either that Frazier and Salinas were in a
dating relationship or that the assault was perpetrated by impeding breathing or
circulation. X R.R. 13 7. After hearing argument of counsel and reviewing
applicable caselaw, the trial court did not include the charge requested by the
defense, essentially overruling the objection and denying the request. X R.R. 146.
In doing so, the trial court found that there was no evidence by which a rational
fact-finder could find Frazier was only guilty of the lesser-included offense. X
R.R. 146. The relevant jury form is included in the Clerk's Record. I I C.R. 11 0.
A trial court's ruling on a request for a lesser-included offense instruction is
reviewed for an abuse of discretion. Threadgill v. State, 146 S.W.3d 654, 666
(Tex. Crim. App. 2004). In order to show that he was entitled to a lesser-included
offense instruction, Frazier must satisfy a two-prong test requiring a determination
of: 1) whether the requested lesser-included charge is a lesser-included offense of
the indicted offense; and 2) whether the record contains some evidence that would
19
permit a rational jury to find that the defendant is guilty only of the lesser-
included offense. Hall v. State, 158 S.W.3d 470, 473 (Tex. Crim. App. 2005);
Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993); Aguilar v. State,
682 S.W.2d 556, 558 (Tex. Crim. App. 1985).
In the instant case, while Class A misdemeanor assault is a lesser-included
offense, the record is devoid of evidence that would permit a rational jury to find
that the defendant is guilty only of Class A Assault.
Appellate courts asked to review jury charge error first determine whether
error exists in the jury charge, and if so, determine if sufficient harm resulted from
the error to warrant reversal. Druery v. State, 225 S.W. 3d 491, 504 (Tex. Crim.
App. 2007).
A thorough review of the Record indicates no error exists based on the
instructions provided to the jury at trial resulting in reversible error.
SUMMARY OF ARGUMENT OF ISSUE NUMBER SEVEN
The evidence presented at trial was sufficient to support Frazier's conviction.
ARGUMENT OF ISSUE NUMBER SEVEN
Burden OfProofAnd Elements Of The Offense:
At trial the State of Texas was required to prove each essential element of the
20
offense beyond a reasonable doubt. Texas Penal Code Section 2. 01. The essential
elements relevant to the assault charge brought against Frazier are contained in
Section 22.01 of the Texas Penal Code and in the indictment. Texas Penal Code
Section 22.01; C.R. 13-14. The essential elements the State was required to prove
at trial include:
a) The offense was committed on or about September 3, 2013, in Tom
Green County, Texas;
b) Frazier was the individual who committed the offense;
c) Frazier committed the offense intentionally, knowingly or recklessly;
d) Frazier caused bodily injury to Salinas by impeding the normal
breathing or circulation of blood by applying pressure to the throat or
neck of Salinas; and
e) Frazier had or previously had a dating relationship with Salinas.
Texas Penal Code Section 22.01; Texas Family Code Section
71.0021(b); I C.R. 13-14.
Standard OfReview On Appeal For Sufficiency Of The Evidence:
The Texas Court of Criminal Appeals has held that when an appellate court
is asked to review the sufficiency of the evidence presented at trial, the appellate
court should apply the standard of review for legal sufficiency as set out by the
United States Supreme Court in Jackson v. Virginia. Brooks v. State, 323 S.W. 3d
893, 895, 916 (Tex. Crim. App. 2010), Jackson v. Virginia, 443 U.S. 307, 316
(1979). The application of the Jackson standard requires the appellate court to
review all of the evidence in the light most favorable to the verdict and determine,
21
based on that evidence, and reasonable inferences therefrom, if a rational trier of
fact could have found the essential ele1nents of the crime beyond a reasonable doubt.
Jackson, 443 U.S. at 319, Brooks, 323 S.W. 3d at 895, 899, 916; Gear v. State, 340
S.W. 3d 743,747 (Tex. Crim. App. 2011).
The evidence presented during the guilt/innocence phase of trial included
the live testimony of eight witnesses, thirty-one photographs, two letters, and a
fingerprint card. I R.R. 8-13.
Sergeant Jason Corbell of the Tom Green County Sheriffs Department
testified at trial. IX R.R. 15. On September 2, 2013, he was on patrol and
received a call to respond to a domestic disturbance at 9761 Grapevine, Tom
Green County, Texas. IX R.R. 15-16. He arrived on the scene, walked to the
front of the house and heard a female gasping for air. IX R.R. 16. He was able to
hear through a plexiglass window, and heard a male say something to the effect
of, "I am about to make your worst dreams come true." IX R.R. 17. Corbell
knocked on the door. He heard a male yell, "What?" and a female screaming for
help. IX R.R. 17. Corbell believed the male was going to kill the female, and
called dispatch to inform them he was going to make forced entry into the
residence. IX R.R. 18. As he approached the door, it opened to reveal a female
who was out of breath and a male standing behind her. IX R.R. 19. The eyes of
22
the female were swollen shut. She had blood in her teeth and on her lips. She
was sobbing and in pain. IX R.R. 19.
The male at the scene identified himself as Nathan Frazier. IX R.R. 19.
Corbell identified the defendant as being the same individual he encountered at
the scene. IX R.R. 20. Corbell cuffed Frazier at the scene and moved he and the
female out of the house. IX R.R. 20. Corbell washed off Frazier's face with the
water hose to get pepper spray off of his face, and gave the female some water.
IXR.R. 21.
The female was identified as Sandra Salinas. IX R.R. 22. She told Corbell
that Frazier had struck her and broke her jaw, pepper sprayed her, and strangled
her several times. IX R.R. 22. Salinas identified Frazier as her boyfriend and
indicated they lived together in the residence. IX R.R. 22. Frazier also indicated
that he resided at the house. IX R.R. 23. Initially, Frazier told Corbell that he has
sprayed Salinas with pepper spray after she sprayed him. He later denied
spraying her. He also denied hitting her. IX R.R. 23.
Corbell observed Salinas to have cuts on her nose and lip, as well as red
marks around her neck. Her eyes were swollen shut from the pepper spray. IX
R.R. 24. Salinas' face and shirt were covered with pepper spray. IX R.R. 25.
Frazier had pepper spray on his face, as well as a vertical scratch on the front of
23
his neck. IX R.R. 25. Corbell testified that typically scratches such as those were
defensive wounds made by someone who is trying to claw to get away. IX R.R.
25.
Corbell identified State's Exhibits No. 1-19. The photographs, which
depicted the scene, Salinas' injuries, and Frazier, were admitted without
objection. IX R.R. 27-29. Salinas reported to Corbell that when she heard Frazier
pull up she locked herself in the bedroom and called law enforcement. Frazier
attempted to kick in the back door, finally gained entry to the house through a
window, then kicked in the bedroom door. IX R.R. 33. Frazier told Corbell he
entered the house through the door. IX R.R. 36. Corbell located a black revolver
)
at the scene, which Frazier denied knowledge of. IX R.R. 37.
Corbell placed Frazier in the back seat of his vehicle with the air
conditioner on. At some point the medics indicated Frazier was attempting to
kick out the windows of the car. Corbell spoke with Frazier who denied he was
trying to kick out the windows and asked if Salinas was going to jail. IX R.R. 38.
When Corbell indicated Salinas was not going to jail, Frazier began complaining
on chest pains and appeared to fall unconscious. IX R.R. 39. It had been
approximately 45 minutes from the time Corbell arrived on scene before Frazier
complained of medical issues. IX R.R. 39. Frazier was treated by the medics on
24
scene and taken to the hospital. Salinas was also transported to the hospital. IX
R.R.40.
Finally Corbell testified that in domestic choking cases it would be typical
to see strangulation marks lengthwise on the neck of the victim and marks where
blood has been pinched between fingers. IX R.R. 41. Upon his recollection being
refreshed by his report, Corbell clarified that he heard Frazier say to Salinas,
"You are in for the scare of your life." IX R.R. 44.
Upon cross examination Corbell indicated that there were two vehicles at
the residence when he arrived. IX R.R. 45. He did not inspect the vehicles.
There were no individuals present at the residence other than Frazier and Salinas.
IX R.R. 46. Salinas opened the door for Corbell, which he could tell was locked.
An alarm was going off while he was in the house. IX R.R. 47; 52-53. Corbell
admitted that things were not included in his report that should have been,
including Frazier's statement that he resided at the house. IX R.R. 50. He
testified that construction was underway at the house, but the door to the bedroom
did not appear to have been removed as a part of that construction. IX R.R. 51.
Deputy Corey Speck of the Tom Green County Sheriffs Department
testified at trial. IX R.R. 60. Speck responded to the scene to back up Sergeant
Corbell. IX R.R. 61. At the scene he took photographs and gathered evidence.
25
He saw Frazier and Salinas at the scene. IX R.R. 61. While walking through the
scene, he noticed a spot of saliva and blood mixture in the kitchen. Salinas
informed Speck that she spit that out after the incident. IX R.R. 62. Speck
noticed Salinas to have trouble with her eyes, swelling on her face, early bruising
to her face, and red marks around her neck. IX R.R. 63.
The victim, Sandra Salinas, testified at the trial. IX R.R. 65. Salinas
resided at 9671 Grapevine Avenue in San Angelo on September 2, 2013. IX R.R.
66. On that day she prepared to go the lake with her daughter, her daughter's
family and Frazier. IX R.R. 67. Salinas identified Frazier as being the defendant
at the trial. IX R.R. 67. Salinas first met Frazier around November 2012. At that
time she knew him as "JB." IX R.R. 68. They started dating at that time, and
seeing each other intimately. IX R.R. 69. Later, he identified himself as being
Kohrionoe Smith. IX R.R. 69. In April or May 2013, she learned his name was
Nathaniel Frazier. IX R.R. 70.
On the day of the incident Frazier became upset because Salinas was
texting someone. He indicated he was not going to the lake. IX R.R. 70. Salinas
went to the lake without Frazier. He arrived later in the evening, and was upset
because Salinas left him outside the house earlier. IX R.R. 73. Frazier was also
mad because Salinas did not leave the lake to check on him. After he yelled at
26
her, they all stayed at the 'lake for a while. IX R.R. 75. Later, Salinas gave
Frazier a hug and told him she was going back to the house. He left before she
did. IX R.R. 76. Frazier had been staying with her in the house off and on. After
driving off, Frazier pulled over. Salinas stopped to talk to him and he was upset.
IX R.R. 77. Salinas told Frazier she was going home and he responded that he
was going to sleep at the lake. She told him she wanted him out of the house. IX
R.R. 78. She wanted him out of her life. Salinas went home, set the alarm and
locked the doors and windows. IX R.R. 79. She called law enforcement to
request help because she heard Frazier coming to the house speeding and peeling
out. Frazier started banging on windows and doors, and finally entered through
an unsealed window in front. IX R.R. 80. Salinas knew it was Frazier because he
was yelling and cussing at her. She heard him fall to the floor after coming
through the window. IX R.R. 81.
Salinas was in a bedroom and locked the door. Frazier broke the door,
threw her against the wall, punched her face and threw her to the ground by her
hair. IX R.R. 82. She was holding mace. When he hit her, the mace flew out of
her hand. Frazier then got on top of her with his knees on her chest, told her he
was going to kill her and began choking her. IX R.R. 83. He had both of his
hands on her neck and she could not breathe. She believed this went on for
27
approximately 13 minutes. He also pushed, slapped and punched her. IX R.R.
84. During the struggle, Salinas testified that she was able to locate the mace and
she sprayed him in the face to get him off of her. He grabbed the mace from her
and sprayed her in the face while he was choking her. IX R.R. 85. She fought
him, but was never able to get him off of her. IX R.R. 85.
Frazier finally stopped the assault when the law enforcement officer
knocked on the door. At that point, Frazier jumped up and Salinas was able to run
to the front door and unlock it. IX R.R. 86.
Salinas did not recall a gun being used by Frazier that night. She went to
the hospital later that night. IX R.R. 88. She had injuries consisting of a broken
nose, bruising to her face and body, and busted gums. IX R.R. 89. Salinas
identified State Exhibits 20 through 22 as being photographs taken of her bruising
several days after the incident. The exhibits were admitted without objection. IX
R.R. 90. Salinas again confirmed that she was involved in an intimate
relationship with Frazier at the time of the incident. She was also in the process
of divorcing her husband at the time. At the time of the trial, the divorce was not
yet final, but she was no longer intimately involved with her husband or Frazier.
IX R.R. 91-92.
On cross-examination, Salinas indicated that she did not recall a gun being
28
used, and that she could not have seen a gun because she was unable to see due to
being maced. She had previously wrapped the gun and put it in a drawer, and had
not seen it since. She had no idea if Frazier knew the location of the gun. IX
R.R.94.
Salinas confirmed that Frazier did not have a key to the house, and that
Frazier was doing "work" on the house. She denied that Frazier had tools at the
house. IX R.R. 100. She confirmed that she initially met Frazier when he was
doing work at her home in Odessa, Texas. Then she knew him as "JB" or John
Brown. IX R.R. 102. That name was on his work name tag. He later provided
her with another name and she continued to date him. She testified that Frazier is
manipulative and she continued in the relationship because of the reasons he gave
her for using a different name. IX R.R. 104. She provided additional testimony
regarding the alarm system at the home on Grapevine. IX R.R. 105-106. She had
been trying for some time to end her relationship with Frazier, but was
unsuccessful because he was manipulative and did not want it to end. She
denied trying to end the relationship by bringing false charges against Frazier and
denied that Frazier came to the residence to pick up his tools. IX R.R. 109. She
denied letting Frazier into the house that evening, denied Frazier saw something
in the house she did not want him to see, and denied she held the gun on him to
29
get him to leave. IX R.R. 110-111.
Salinas testified that she and her family went camping at Lake Nasworthy
regularly, and that Frazier had previously met her daughter and camped with
them. IX R.R. 113-114. They probably drank some beer at the campsite between
when she arrived around 1:00 or 2:00p.m., and when she left at around 9:00p.m.
IX R.R. 118-119.
On re-direct examination Salinas confirmed that the window through which
Frazier entered was plexiglass and was held in place by duct tape. If the duct tape
was unsealed, it would not trigger the house alarm. She testified that Frazier
would have been aware of that. IX R.R. 121.
Victor Dancer was called as a witness at the trial by the defense. He
testified that he was currently married to Salinas, and had been married to her for
nine years. He knew her for three years prior to their marriage. A divorce was
pending at the time of trial. He further testified that, in his opinion, Salinas is not
truthful. X R.R. 42-43.
Corey Speck was briefly recalled by the defense to identify Defense
Exhibits 1-9, which were admitted without objection.
Frazier testified in his defense at the trial. He testified that he was in
Carlsbad, New Mexico on September 2, 2013, until approximately 4:00 p.m.
30
when he drove to San Angelo. He was headed to the house on Grapevine. X R.R.
50. It took him approximately five hours to get to San Angelo. He did not go to
Lake Nasworthy with Salinas. He arrived at the house near 10:00 p.m. to pick up
his tools. X R.R. 51. When he arrived at the house, a vehicle was speeding out of
the driveway. X R.R. 51. The vehicle was a white Chevy Suburban. After
seeing the vehicle, Frazier called his wife to let her know he had arrived. He
knocked on the door of the house, and after several minutes Salinas answered.
She told him to come in and grab his things. X R.R. 52. Frazier testified that he
was grabbing his tools and he notices boxes from a smoke distributor and other
things that should not have been there. Frazier claimed he became nervous and
began walking towards the front of the house with his tools. He stated Salinas ran
into a bedroom once she realized what he had seen. He believed the items he saw
were drugs. X R.R. 53. Salinas came out of the room with a gun and told him to
leave. He testified that Salinas yelled at him and fired a shot to show him the gun
was loaded. He further testified that Salinas told him that she would "get away
with it," because they would believe her. X R.R. 54.
Frazier testified that law enforcement arrived at around 10:10 or 10:15. At
that time he was laying on the floor after Salinas pepper sprayed him. He claimed
that after she approached him with the gun, she sprayed him and told him to get
31
on the floor. Salinas ran back to the room, and he could see through the window
that the sheriff had arrived. Frazier stayed on the floor out of fear of being
harmed and told Salinas to open the door. X R.R. 55. Once he heard the sheriff
knock on the window, he began yelling for help and trying to open the door. He
was unable to open the door because it was dead-bolted and required a key to
unlock it. X R.R. 56.
Frazier stated that eventually Salinas used a key to open the door, and by
doing so set off the house alarm. Once the door was opened, Frazier testified that
he began telling the sheriff what happened. X R.R. 57.
Frazier denied touching or injuring Salinas on September 2, 2013. He
denied choking her. He testified that he saw Salinas' injuries when she opened
the door upon his arrival at the house. X R.R. 61. He denied knowledge of who
caused injury to Salinas, but believed it was the individual he saw leaving as he
pulled up. X R.R. 58. Frazier confirmed that he fell unconscious at some point
and woke up in the hospital. He claimed to still have his Bluetooth in his ear with
his wife on the line when he was placed in the sheriffs car. X R.R. 59.
Frazier denied having an intimate relationship with Salinas. He testified
that the only relationship he had with her was of a business nature. He denied
dating her, ever spending the night with her or being intimate with her. X R.R.
32
60-61. Frazier testified that he is married and faithful to his wife. X R.R. 61. The
only possible motive he could identify for Salinas claiming he assaulted her was
so that he could not disclose seeing the drugs and other items in her home. X
R.R. 61-62.
Frazier identified photographs of cameras installed around the house at the
request of Salinas, as well as photographs of the gun Salinas pointed at him. X
R.R. 63. He also identified the remaining photographs admitted as defense
exhibits. X R.R. 64-66.
On cross-examination, Frazier testified that he had been to the Grapevine
residence on one prior occasion to install cameras. X R.R. 87. Frazier stated he
had seen Salinas on two or three prior occasions and only related to business. X
R.R. 88. Frazier testified that his wife's name is Bethel and she lives 1n
Southfield, Michigan. He has six brothers and one sister. His parents are
deceased. X R.R. 89.
Frazier admitted that he has two prior felonies, a vehicular manslaughter
and a possession of narcotics case. X R.R. 90-91. He testified that Salinas pulled
the gun on him as he was returning to the front of the house from the laundry
room. As he entered the living room, she fired a shot. He testified that he told
law enforcement that she fired a shot and showed them the bullet hole in wall. X
33
R.R. 95-96. He stated he did not tell the officers about the drugs in the house. X
R.R. 98. He said he was conscious for ten to fifteen minutes after law
enforcement arrived, and testimony from the sergeant to the contrary was a lie. X
R.R. 99. Frazier testified that he did not live at the Grapevine address and he
never told law enforcement that he did reside there. X R.R. 99-100.
Thomas Moriarty, a detective with the Tom Green County Sheriffs
Department, testified at the trial. X R.R. 107. Under his instruction, an ATF
firearm trace was performed on the gun found at the scene. The result of the trace
was that the gun was stolen from Detroit, Michigan. X R.R. 110. Moriarty
identified inmate correspondence he believed to have been authored by Frazier. X
R.R. 111-112. Said correspondence was admitted into evidence as State Exhibit
23. X R.R. 114. The correspondence indicated it was written by, "Kohrione
Smith a/kla J.B., N. Frazier, Number 90117." X R.R. 114.
Terri Adams, a fingerprint examiner with the San Angelo Police
Department, was called by the State to testify. X R.R 116. She conducted a
fingerprint examination in this case. She took Frazier's fingerprints and
compared them to those in an existing judgment. The name on the judgment was
Nathaniel J. Frazier, Jr. It was her opinion that both sets of fingerprints were
made by the same person. X R.R. 117. A certified copy of the judgment was
34
admitted as State Exhibit 25 without objection.
Adams further testified that Frazier initially identified himself to her as
Nathan Frazier and gave a birthdate of 4/22/77. She again asked him the year and
he responded" '77." After taking Frazier's fingerprints, Frazier advised her that
the year ofhis birth was actually 1975. X R.R. 118.
Sasha Smith testified at the trial as a rebuttal witness for the State. X R.R.
123. Smith is the daughter of Salinas. She testified that she knows Frazier as
Kohrione Smith, and that he was dating her mother. X R.R. 124. Smith identified
Frazier in the courtroom as the individual she knows as Kohrione Smith. X R.R.
125. She stated she has seen Frazier twenty or more times, and each time he was
with Salinas. X R.R. 125.
Smith testified that on September 2, 2013, she and her family were in San
Angelo at the lake. Frazier arrived later, stayed in his truck for a while and then
joined them fishing. He stayed two to three hours. X R.R. 125-126. They all left
at the same time, and Salinas and Frazier were headed home. As she was driving
home, Smith became concerned when she could not reach Salinas by phone. She
then received a call from the alarm system at Salinas' house. She told them to
call law enforcement and was then advised law enforcement was already at the
scene. X R.R. 127-128.
35
The indictment included an enhancement paragraph referencing a prior final
felony conviction to which Frazier entered a plea of not true. VI R.R. 16; I C.R. 13-
14. Evidence Frazier received the prior felony conviction in accordance with the
enhancement paragraph was admitted into evidence -w.ithJJt oliroion during the
punishment phase of trial in the form of a self-authenticating pen packet. XII R.R.
State's Exh. 26; XI R.R. 10.
State's Exhibit 26 included documentation in support of Frazier being finally
convicted of Manslaughter Involuntary, a felony, on October 28, 1999. XII R.R.
State's Exh. 26. State's Exhibit 26 supported paragraph 2 of the indictment.
Based on a review of all of the evidence in the light most favorable to the
verdict and reasonable inferences therefrom, a rational trier of fact could have
found all of the essential elements of the assault of a family/household member by
impeding breathing or circulation charge brought against Frazier beyond a
reasonable doubt. The evidence was sufficient to support the jury's verdict and
Frazier's conviction.
SUMMARY OF ARGUMENT OF ISSUE NUMBER EIGHT
Defense Counsel did not fail to object to fundamental error.
36
ARGUMENT OF ISSUE NUMBER EIGHT
A thorough review of the complete Record reflects there was no
fundamental error made or existing in the underlying case. Therefore, there was no
failure on the part of trial counsel for Frazier to object to fundamental error.
SUMMARY OF ARGUMENT OF ISSUE NUMBER NINE
Adverse rulings during the punishment phase on objections or motions did not result
in reversible error.
ARGUMENT OF ISSUE NUMBER NINE
The punishment phase of the trial took place July 15, 2014. XI R.R. 1-19.
The Record does not reflect any rulings on objections or motions made which were adverse
to Frazier. Therefore, based on a thorough review of the Record and applicable
legal authorities, no reversible error exists based on adverse rulings made during
the punishment phase of trial.
SUMMARY OF ARGUMENT OF ISSUE NUMBER TEN
The trial court's assessed punishment falls within the applicable range of
punishment and does not constitute reversible error.
ARGUMENT OF ISSUE NUMBER TEN
Texas Penal Code Section 22.01 (b )(2)(B) is the statute applicable to the
37
offense of assault of a family/household member by impeding breathing or
circulation. Texas Penal Code Section 22.01 (b)(2)(B). Based on the facts and
circumstances underlying Frazier's charge, Texas Penal Code Section 22.01 (b)
results in the application of the punishment range for a third degree felony. Texas
Penal Code Section 22.01.
The indictment includes one enhancement paragraph. I C.R. 13-14.
Paragraph two of the indictment references a felony conviction for Manslaughter
Involuntary Frazier is alleged to have received on October 28, 1999. I C.R. 13-
14.
Texas Penal Code Section 12.42 is the statute that sets forth the punishment
range for repeat and habitual felony offenders. Texas Penal Code Section 12.42.
Section 12.42 (a) provides that "Except as provided by Subsection (c)(2), if it is
shown on the trial of a felony of the third degree that the defendant has previously
been finally convicted of a felony other than a state jail felony punishable under
Section 12.35(a), on conviction the defendant shall be punished for a felony of the
second degree." Texas Penal Code Section 12.42.
A second degree felony conviction is punishable by a sentence of two to
twenty years confinement in the Texas Department of Criminal Justice, and an
optional fine of up to $10,000. Texas Penal Code Section 12.33.
38
Frazier entered a plea of "not true" to the enhancement paragraph. VI R.R.
16. At the conclusion of the presentation of punishment evidence, the trial court
found Frazier had been previously and finally convicted of the felony offense as
charged in paragraph 2 of the indictment. II R.R. 16; I C.R. 34-37. The trial court
assessed Frazier's punishment at eighteen (18) years confinement in TDCJ. II
R.R. 16; I C.R. 34-37.
The eighteen (18) year sentence assessed by the trial court falls within the
punishment range for a second degree felony conviction set forth by the Texas
Penal Code. The punishment assessed falls within the applicable statutory
punishment range and does not constitute reversible error.
SUMMARY OF ARGUMENT OF ISSUE NUMBER ELEVEN
The written Judgment is correct and proper jail credit was given.
ARGUMENT OF ISSUE NUMBER ELEVEN
The written Judgment appears in the Clerk's Record. I C.R. 34-37. The
content of the written Judgment accurately reflects the punishment assessed and the
sentence pronounced in open court by the trial judge. I C.R. 34-37; XI R.R. 16.
The Reporter's transcript reflects the trial judge awarded Frazier jail credit for
the time he had been incarcerated in connection with the underlying case. XI
39
R.R. 18. The content of the written Judgment accurately reflects the jail credit
awarded to Frazier. I C.R. 34-37. There is no indication proper credit was not
awarded to Frazier.
A clerical error does exist in the written Judgment as to whether the trial
court or jury assessed punishment. I C.R. 34. On page one of the "Judgment Of
Conviction By Jury," the judgment indicates punishment was assessed by the
"Jury." I C.R. 34. Page two of the same document indicates that punishment was
assessed by the trial court and that, "Defendant elected to have the Court assess
punishment. After hearing evidence relative to the question of punishment, the
Court assessed Defendant's punishment as indicated above." I C.R. 35. The
Reporter's Record establishes that the trial court assessed punishment after hearing
evidence and argument. XI R.R. 5-16. Said clerical error does not constitute
reversible error, and can be remedied, if necessary, by a reformation of the written
Judgment.
SUMMARY OF ARGUMENT OF ISSUE NUMBER TWELVE
Frazier's trial counsel rendered effective assistance of counsel.
ARGUMENT OF ISSUE NUMBER TWELVE
This Court evaluates ineffective assistance of counsel claims based on the
40
standard of review established by the United States Supreme Court in Strickland v.
Washington and adopted by the Texas Court of Criminal Appeals. Strickland v.
Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W. 2d 770 (Tex.
Crim. App. 1999).
In Strickland, the United States Supreme Court established a two part test
applied in reviewing ineffective assistance of counsel claims on appeal. Strickland
v. Washington, 466 U.S. at 687. The two part test known as the Strickland Standard
provides as follows: "First, the defendant must show that counsel's performance
was deficient. This requires a showing that counsel made errors so serious that
counsel was not functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel's errors
were so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable. Unless a defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in the adversary process
that renders the result unreliable." !d.
This Court applies the Strickland Standard as interpreted by the Texas
Court of Criminal Appeals. This Court requires a defendant to first show the
performance of the defendant's trial counsel was deficient. After successfully
41
illustrating trial counsel's deficient performance, the defendant must show this
deficient performance actually prejudiced the defendant. Tho1npson v. State, 9
S.W. 3d 808, 812 (Tex. Crim. App. 1999); Strickland v. Washington, 466 U.S. at
694. The defendant is required to prove by a preponderance of the evidence that
his trial counsel rendered ineffective assistance. Bone v. State, 77 S.W. 3d 828,
833 (Tex. Crim. App. 2002).
The Texas Court of Criminal Appeals has elaborated on how an appellant
demonstrates the performance of his trial counsel was deficient and how an
appellant demonstrates he was prejudiced by this trial counsel's deficient
performance. The Texas Court of Criminal Appeals has held an appellant
demonstrates the performance of his trial counsel was deficient by showing the
performance ofhis trial counsel fell below an objective standard of reasonableness.
Thompson v. State, 9 S.W. 3d at 812. The Texas Court of Criminal Appeals has
held an appellant demonstrates he was prejudiced by his trial counsel's deficient
performance by showing there is a reasonable probability that, but for trial counsel's
unprofessional errors, the result of the proceeding would have been different.
Mitchell v. State, 68 S.W. 3d 640, 642 (Tex. Crim. App. 2002); Thompson v.
State, 9 S.W. 3d at 812. The Texas Court of Criminal Appeals has interpreted
"a reasonable probability" as a probability sufficient to undermine confidence in
42
the outcome. Thompson v. State, 9 S.W. 3d at 812 citing Hernandez v. State, 726
S.W. 2d 53, 55 (Tex. Crim. App. 1986).
The reviewing court begins its ineffective assistance of counsel
evaluation by presuming trial counsel rendered effective assistance. Mallet v.
State, 65 S.W. 3d 59, 63 (Tex. Crim. App. 2001). To overcome the presumption
trial counsel rendered effective assistance, "any allegation of ineffectiveness must
be firmly founded in the record, and the record must affirmatively demonstrate the
alleged ineffectiveness." Mallet v. State, 65 S.W. 3d at 63 citing Thompson v.
State, 9 S.W. 3d at 814. The record on appeal is typically undeveloped and fails
to illustrate the motive behind trial counsel's actions. Mallet v. State, 65 S.W. 3d at
63 citing Thompson v. State, 9 S.W. 3d at 813-14.
The trial court appointed Attorney John Sutton to represent Frazier on March
3, 2014. I C.R. 25. The Clerk's Record reflects Attorney Sutton filed several
pretrial motions on Frazier's behalf, including a Motion to Qualify experts and to
Conduct Gatekeeper Hearings, Motion in Limine, Motion for Exculpatory
Evidence, Motion for Witness List, Applications and Motions to Secure Material
Out-of-State Witnesses, and a motion to reduce bond. II C.R. 43-55, 59-78. The
Reporter's transcript indicates Attorney Sutton actively participated in the voir dire
process on Frazier's behalf. VIII R.R. 77-120. The Clerk's Record includes
43
documentation of jury strikes exercised Attorney Sutton before a JUry was
empaneled. I I C.R. 95-96, 91-92.
The Reporter's transcript reflects Attorney Sutton cross examined the State's
witnesses, made an opening statement, presented the testimony of Victor Dat:x.-er arrl
Frazier, r e - c a 11 e d Corey Sp eck, and made a closing statement
on Frazier's behalf during the guilt-innocence phase of trial. IX R.R. 45-57, 63,
93, 100-119, 128-130. X R.R. 10, 41-67, 151-167. The Reporter's
transcript reflects Attorney Sutton made a closing statement on Frazier's behalf
during the punishment phase of trial. XI R.R. 14-15.
The Record evidence indicates Attorney John Sutton effectively represented
Frazier throughout the pendency of the case. The Record evidence does not
indicate Attorney Sutton's performance was deficient in any way. Even if
Attorney Sutton's performance was somehow deficient, the Record evidence does
not indicate Attorney Sutton's deficient performance prejudiced Frazier.
ANDERS BRIEF
The United States Supreme Court does not obligate counsel representing a
client on appeal to argue in support of grounds for reversal of the lower court's
judgment when after a "conscientious examination" of the case, appellate counsel
44
determines appeal to be "wholly frivolous." Anders v. State of California, 386 U.S.
738, 744 (1967). In such situations, the United States Supreme Court has
outlined appropriate procedural steps to be taken by appellate counsel: 1)
counsel is required to submit a brief examining the record for any point arguably in
support of proper grounds for reversal on appeal; 2) counsel must furnish this
brief to an indigent client enabling the client the right to file a pro-se brief based
on points of appeal this individual maintains present proper grounds for appeal;
and 3) counsel may request the appellate court grant counsel's request to
withdraw from the obligation of providing further legal representation to the
client on appeal. Anders v. State of California, 386 U.S. 738, 744.
Counsel for Nathaniel J. Frazier, Jr .. Jr., Jr. submits the above "Anders
Brief' on behalf of Appellant. After a "conscientious examination" of the case,
including a diligent review of the Record and applicable authorities, Counsel finds
an absence of meritorious grounds for appeal and further submits the basis of any
appeal in this case would be frivolous in nature. Therefore Justin S. Mock,
Counsel for Appellant, respectfully requests this Court acknowledge and
approve her request to withdraw from her court appointed duty of providing
further legal representation to Appellant Nathaniel J. Frazier, Jr. on original
appeal.
45
PRAYER
Justin S. Mock, Counsel for Appellant Nathaniel J. Frazier, Jr. prays this
Court acknowledge and approve his request to withdraw from his court
appointed duty of providing further legal representation to Appellant Nathaniel J.
Frazier, Jr. on original appeal.
Appellant Nathaniel J. Frazier, Jr. prays for additional time to review
the Anders Brief submitted on behalf of Appellant and the opportunity to file a
pro se Appellant's Brief on Original Appeal on his own behalf.
Respectfully submitted,
Justin S. Mock
Ellis & Mock,PLLC
125 South Irving Street
San Angelo, Texas 76903
Telephone: (325) 486-9800
Facsimile: (325) 482-0565
justin@ellisandmock.com
By: Is/Justin S. Mock
Justin S. Mock
State Bar No.24064155
Attorney for Appellant
Nathaniel J. Frazier, Jr.
46
Certificate of Service
I certify a true and correct copy of the above and foregoing Appellant's
Original Brief was served in accordance with Rule 9.5 of the Texas Rules of
Appellate Procedure on May 7, 2015, on the following parties:
Mr. Jason Ferguson By Personal Delivery
Office ofT om Green County District Attorney
124 West Beauregard Avenue
San Angelo, Texas 76903
Appellee
Mr. Nathaniel J. Frazier, Jr. By Certified Mail
TDCJ No. 01942796 Return Receipt Requested
John B. Connally Unit
899 PM 632
Kenedy, TX78119
Appellant
Is/ Justin S. Mock
Justin S. Mock, Attorney for
Nathaniel J. Frazier, Jr.
47
Certificate of Compliance
I certify the above and foregoing Appellant's Brief contains 10,266 words.
Is/ Justin S. Mock
Justin S. Mock, Attorney for Nathaniel
J. Frazier, Jr.
48
ELLIS & MOCKPLLC
Attorneys and Counselors at Law
125 South Irving Street
San Angelo, Texas 76903
Tel (325) 486-9800
Fax (325) 482-0565
May 7, 2015
Mr. Nathaniel J. Frazier, Jr. CMRR No.70113500000332791295
TDCJNo. 01942796
John B. Connally Unit
Texas Department of Criminal Justice
899 FM 632
Kenedy, TX 78119 RE: Nathaniel J Frazier, Jr. vs. The State of Texas;
Cause No. 03-14-00655-CR; Court of Appeals;
Third Judicial District
(Trial Cause No. D-13-0958-SA)
Dear Mr. Frazier:
Enclosed please find a copy of the motion to withdraw as counsel and brief pursuant to Anders v.
California that I have prepared and filed in your case. After a diligent search of both the clerk's
record and reporter's record in your case and a review of the applicable law, it is my opinion that
no reversible error occurred at your sentencing.
Whenever appellate counsel files a motion such as this, the law provides the appellant the right to
review the record and file a response identifying to the appellate court any grounds he thinks are
non-frivolous issues to be raised on his behalf that the appellate court should consider in deciding
whether the case presents any meritorious grounds for appeal. Because I have filed this motion
and brief, you now have the right to review the record and file a response or brief if you so choose.
To assist you in obtaining the record if you wish to review it, I have enclosed a Motion for Pro Se
Access to the Appellate Record for you to file. In order to obtain the appellate record, you must
sign and date the motion and mail it to the Third Court of Appeals within ten days of the date of
this letter at the following address:
Jeffrey D. Kyle,
Clerk Third Court of
Appeals Post Office
Box 12547 Austin,
Texas 78711
The Court of Appeals will then direct the clerk of the trial court to provide you with a copy of the
appellate record. Your response will be due to be filed in the Third Court of Appeals within 30
days of the date the clerk provides the record to you.
Whether or not you file a response, the law requires the Court of Appeals to review the record to
determine if the Court agrees with my assessment that no meritorious grounds for appeal exist,
i.e., that no reversible error exists. If the Court does not agree, but instead believes there are non-
49
frivolous issues to be raised on your behalf, the Court must abate the appeal to have another
attorney appointed to review the record on your behalf
Should the Court of Appeals ultimately detennine that there are no meritorious grolUlds to be raised
and that your appeal is frivolous, the Court will affirm your conviction and sentence. You may
then file a pro se petition for discretionary review with the Texas Court of Criminal Appeals. Such
petition must be filed within 30 days of the date the Court of Appeals renders its judgment.
Feel free to write me if you have any questions about the procedure utilized in your appeal. I will
do my best to answer any questions you may have.
Sincerely,
Justin S. Mock
encl: copy of Brief For Appellant/copy of Motion to Withdraw/Motion for Pro Se Access to
Appellate Record
50
Nathaniel Frazier, Jr. AKA Nathaniel J. Frazier v. State
Combined Opinion