                                                                                   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
