Frazier, Nathaniel v. State

Opinion

270-/6 TABLE OF CONTENTS PAGE

Identity Of Judge, Parties, and Counsel - i Index Of Authorities „.ii Statement Regarding Oral Argument ,-:v- Statement Of The Case „. .v~ Statement Of Procedural History ,vi Grounds For Review ;yiii

Argument r. ,1: Prayer For Relief ,13

Appendix see. attachment Certificate of Service see attachment

RECHVED M

COURi OF CRȣNAL APPEALS

JUN 16 2016

co3ta, Clew

FILED ^

COURT OF CRIMINAL APPEALS

Abel Acosta, Clerk

IDENTITY OF JUDGE, PARTIES, AND COUNSELS

In accordance with Rule 68.4(a), Texas Rules of Appellate Procedure, Pro-Se Appellant certifies the following is a complete list of trial Judge,

Parties to the judgement, and trial and Appellate Counsels, known to be legally interested in the resolution of the instant Petition for Discretio nary Review.

Honorable Judge Thomas J. Gossett '•: Mr. NATHANIEL FRAZIER

391ST Judicial District Court TDCJ-ID No. 01942796 Tom Green:County John B. Connally Unit 112 W. Beauregard 899 FM 632 San Angelo, Texas 76903 Kenedy, Texas 78119 Pro-Se, Appellant

Mr. Jason Ferguson Office of Tom Green County District Attorney 124 Wi: -Beauregard San Angelo, Texas 76903 Appellee

Danny L. Hardesty Attorney At Law Box N Appointed Eldorado, Texas 76936 Trial Attorney, Withdrawed 3RD of March 2014

John E. Sutton

Attorney At Law P.O. Box 871 Appointed San Angelo, Texas 76902 Substitute Trial Counsel

Justin S. Mock

Attorney -At::Law'•: " 125 South Irving Street Appointed San Angelo, Texas 76903 Appellate Attorney, Withdrawed 11TH of February 2016

INDEX OF AUTHORITIES PAGE

Almanza v. State, 686 S.W.2d 157,171 (Tex. Crim. App. 1985) 9

Alvarado v.State, 704 S.W.2d 36,38-40 (Tex. Crim. App. 1985) 11 Anders v. California, 386 U.S. 738,744 (1967) 12

Batson v. Kentucky, 476 U.S. 79 (1986) 8 Bell v. State, 693 S.W.2d 434,442 (Tex. Crim. App. 1985) 6 Bignall v. State, 887 S.W.2d 21-24 (Tex Crim. App. 1994) 6,7

Boyd v. California, 494 U.S. 370,380, 110 S.Ct. 1190 (1990) 10 Estel v. McGuire, 502 U.S. 62,72, 112 S.Ct. 475 (1991) 10 Ex Parte Varelas, 45 S.W.3d 627,632 (citing) 6

George v. State, 890 S.W.2d 73,76 6 Goad v State, 354 S.W.3d 443,446 (Tex. Crim. App. 2011) 6

Halton v. State, Tex. App. Lexis 6769 (2015) 4 Haynes v. State, '254 S.W.3d 466(Tex. App. Houstoh-lst 2007) 2,3 Hightower v. State, 629 S.W.2d 920 (Tex. Crim. App. 1981) 8

Hughes v. State, 897 S,W2d 285,295 (Tex. Crim. App 1994) 11 Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979) 2 Leach v. State, Tex. App. Lexis 12429 (2015) 4

Light v. State, 15 S.W.3d 194 (Tex. Crim App. 2000) 1 Lyles v. State, 850 S.W.2d 497,502 (Tex. Crim. App. 1993) 5 Malik v. State, 953 S.W2d 234 (Tex. Crim. App. 1997) 3 Martinez v. State, 327/ S.W.3d 727,736 (Tex. Crim. App. 2010) .... 5 McFarland v. State, 930 S.W.2d 99 (Court of Appeals 1996) 2 McQueen v. State, 781 S.W.2d 600,603 (Tex. Crim. App. 1989) 11 Newberry v. State, 552 S.W.2d 457,462 (Court of Appeals 1997) 5 Meza v. State, 206 S.W.3d 684 1

Pierce v. State, 777 S.W.2d 399,414 4

Price v. State, 457 S.W.3d 437,440 (Tex. Crim. App. 2015 9yll: Reese v. State, 33 S.W.3d 238 .4

ii

Richardson v. State, 744 S.W2d 65,77 (Tex. Crim. App 1987) 8 Rousseau v. State, 855 S.W.2d 666,672 (Tex. Crim App. 1993) 6 Sandstrom v. Montana, 442 U.S. 510,523, 99 S.Ct. 24,50 (1971) 10

Schweinle v. State, 915 S.W.2d 19 (Tex. Crim. App. 1996) 7 Skinner v. State, 956 S.W.2d 532,543 (Tex. Crim. App. 1997) 6 Smith, ,120 F.3d 414,415 ., 9,10

State v. Meru, 414 S.W.3d 159,162 (Tex. Crim. App 2013 6 Sweed v. State, 351 S.W.3d 63,68 (Tex. Crim. App. 2011) 61,7 United States v. Benton, 637 F.2d 1052 (CAS 1981) 5 U.S. v. Curley, 639 F.3d 50,62-63 (2cd Cir. 2011) 6 U.S. v. Jenkins, 593 F.3d 480,486 (6th Cir 2010) 5

Vasquez v. Hillery, 474 U.S. 254,259 106 S.Ct. 617 8 Villarreal v. State, 286 S.W.3d 321,329 (Tex. Crim. App. 2009) 9

Wiiliams v. State, 235 S.W.3d 742,750 (Tex. Crim. App. 2007) 2 Williams v. State, 294 S.W.3d 674,681 (Tex. App.-Hou^lst Dist.]200.9). 6

Windship, 397 U.S. 358,364 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) 2,9 Wingfield v. State, Tex. App. Lexis 12080 (2015) 4 Wortham v. State, 412 S.W.3d 552,558 (Tex. Crim. App. 2013) 6 Young v. State, 547 S.W.2d 23 (Tex. Crim. App. 1977) 8

465 U.S. 1067, 104 S.Ct. 1419, 79 L.Ed.2d 744 (1984) 5

479 F.3d~492,504 (2007) 6 496 U.S. 912, 110 S.Ct. 2603..... 4

STATUTES

Stae Barfof Texas Art.10 Sec.9; Disciplinary Rule 9-102 (3-4) v Texas Criminal Code and Procedure Art.36 ;09 6

Texas Criminal Code and Procedure Art. 36.14 9 Texas Criminal Code and Procedure Art. 38.22 v Texas Family Code Sec. 71.0021J -71.005 2?,3

Texas Family Code Sec. 71.004 9 Texas Penal Code Sec. 2.01, 22.01(b)(2)(B) 2,3 Texas Penal Code Sec. 6.03 H

m

Texas Rules of Appellate Procedure Rule 9.5 v

Texas Rules of Appellate Procedure Rule 34.5(g) v Texas Rules of Appellate Procedure Rule 34.6(h) v

Texas Rules of Appellate Procedure Rule 44.2(c) , 10 Texas Rules of Appellate Procedure Rule 47.1 1

Texas Rules of Appellate Procedure Rule 47.4 1 Texas Rules of Appellate Procedure Rule 68.3 12 Texas Rules of Appellate Procedure Rule 68.4 i,12 Texas Rules of The Court Rule 403 - v Texas Rules of The Court Rule 609 v Texas Rules of The Court Rule 702 iv

IV

STATEMENT REGARDING ORAL ARGUMENT

Oral Argument is requested to assist the Court in understanding the arguments presented by this case.

STATEMENT OF THE CASE

•In District Court 391 Cause Number D-13-0958-SA, NATHANIEL FRAZIER , was charged by indictment with having committed the offense of Assault of Family Violence/ Household Member by Impeding Breathing or Circulation, a third degree felony. 1 C.R. 13-14. The indictment included an enhanceme ent paragragh referencing a previous felony conviction exposing FFRAZIER to the punishment range for a second degree felony. Id.

FRAZIER entered a plea of not guilty to the indictment and proceeded

to jury trial on July 14, 2014. IX R.R 12. During the guilt/innocence phs ase of jury trial the enhancement paragragh (two) was proven up to be true

. X R.R. 90-91.

At the conclusion of a two day jury trial, FRAZIER was found guilty of Dating Violence an element of the indictment •charged to the jury. IC.R. 13-14; II C.R. 105-110; X R.R. 178.The trial Court found enhancement para

gragh to be true. X R.R. 90-91; XI R.R. 16. The trial Court assessed the punishment and FRAZIER was sentenced to eighteen (18) years in the Texas DepartmentTof-:Criminal:JusticevlXr.R;R. 16; I C.R. 32, 34-35.

.V

STATEMENT OF PROCEDURAL HISTORY

""•'On May 07, 2015 Appellant's Counsel Filed an Ander's Brief on behalf of Appellant. No oral argument was scheduled and pursuant to Texas ":Rules

of Appellant Procedure 34.5(g) and 34.6(h), the trial Court'.was rrequired to furnish a complete copy of entire record at Appellant's request. Furt her, a Motion to Withdraw was filed by Appellant's counsel to .remain :on

motion docket pending disposition.

*0n May 15, 2015 Appellant requested pursuant to Texas Rules of Appe^- llant Procedure Ruler9:.5::"Access to Full Appellant Record" by motion.Pro-

Se on each party and counsel involved.

*0n May 19, 2015 a request pursuant to State Bar of Texas Article 10 Section 9- Code of Professional Responsibility, Diciplinary Rule 9-102 (3 and 4):[in part] " Under Texas Law the entire contents of the -.attorney's file belongs to the client at the attorney's own expense, -all -"portions of the file the client want's to obtain shall be provided by law",-was made. This would include contents from full discovery received in accordance to

Article 38.22 of Texas Code of Criminal Procedure."

*0n may 2, 2015 The Texas Court of Appeals, Third District, At Austin

[GRANTED] Pro Se Motion and ORDERED the clerk of trial Court to provide a:: copy of the Reporter's and Clerk's record to Appellant and to provide a

written verification to the Court of Appeals of the date and manner in wh

ich the Appellate record was provided, on or before June 12, 2015.

*0n June 9, 2015 the Court received written verification that a 'copy of the Reporter's and Clerk's records were provided to Appellant and doc-

et Pro-Se Response, if any, is due on or before July 9, 2015 .-Appellant filed his First Motion for Extension of Time. June 15, 2015 .in which the

Court [GRANTED] request June 24, 2015, extending time to file Pro Se.brief to October 15, 2015.

vi

* After a diligent review of the records provided by the trial Court , it was found that records were absent requested witness statements, medical records, pre-trial proceedings of May 6, 2014, and jury charge, needed to assist with arguments on Pro Se Response Brief. Therefore, although a Sec ond Motion to Extend Time to file Pro Se Response Brief was filed on Sept.

14, 2015, [GRANTED] on September 21, 2015 extending deadline to December 7, 2015, the Court of Appeals failed to ORDER request of complete record.

*0n December 2, 2015 in order to meet the deadline to file Pro Se Brief

, the Appellant, absent complete/entire Appellate records, proceeded' to file Pro Se Response Brief. February 11, 2016 the Court of Appeals handed down

OPINION and AFFIRMED trial Court's judgement, further GRANTING ^counsel's Motion to Withdraw.

* On April 20, 2016 a Motion for Production of Entire Record and'Mbtion•• for Extention of Time was filed. Motion for Production of Entire record was DENIED on April 29, 2016, and Motion for Extention of Time to file Petiti

on for Discretionary Review was [GRANTED] on May 02, 2016, making deadline to file Petition for Discretionary Review June 13, 2016. As of to date no

motion for rehearing has been filed or any rulings needed otherwise.

Vll

GROUNDS FOR REVIEW

A diligent review of the records provided by the trial Court and the OPINION of the Court of Appeals, at Austin, Texas, has resulted 'in the

finding of meritorious grounds that shall be explicitly reviewed to be advanced in good faith on Appeal. All conceivable grounds result from the

following considerations: 1. The Court of Appeals erred in not explicitly reviewing and addressing

pro se issues in opinion.

2. The Court of Appeals erred in holding that the evidence was suffici ent to support Appellant's conviction.

3. The Court of Appeals erred in holding that the trial Court did not ^".'•_£.' iabuse.- it' s.. discretion.

4. The Court of Appeals erred in holding that the trial CCourt's jury charge was not erroneous.

5. The Court of Appeals erred in holding that Ander's Brief met the re* ••:.: quiremehts: of _Anders-.v. California, granting Appellant^ counsel's motion to withdraw.

Vlll

SUMMARY OF ARGUMENT OF GROUND NUMBER ONE

The Court of Appeals failed to explicitly review and address pro se brief issues in Appellant's opinion.

ARGUMENT OF GROUND NUMBER ONE Pursuant to Texas Rules of Appelate Procedure Rule 47.1 Written Opi

nions, the Court of Appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary

to final disposition of the appeal. Texas Rules of Appellate Procedure

Rule 47.4 Memorandom Opinions, it is the Court of Appeals duty to review brief to determine if there are any arguable grounds, and if there are

remand to trial court so that a new counsel may be appointed to brief the issues. Failure by a Court of Appeals to address a point[s] of error pro.-? perly raised by a party, requires remand for consideration of that opoint of error. See Light v. State, 15 S.W.3d 104 (Tex. Crim. App. 2000).

The Court of Appeals erred in handing down Memorandom that-failed "to address any of Appellant's issues for final disposition and without, explination fe>r Courts affirmation, the Appellant is unable to file a proper Petition for Discretionary Review with Court on merits of appeal. The Op inion was handed down and AFFIRMED on February 11, 2016 by Texas Court of Appeals, Third District, at Austin, from an Ander's Brief filed on May 7,

2015, with the assurance of being wholly frivolous. Meza v. State 206S.W. 3d 684.

SUMMARY OF ARGUMENT OF GROUND NUMBER TWO The Court of Appeals erred in holding that the evidence was? sufficient to support Appellant's conviction.

ARGUMENT OF GROUND NUMBER TWO When, reviewing sufficiency of the evidence, the Appellate Court views all of the evidence in the light most favorable to the verdict and determ ine, based on the evidence and any reasonable inferences therefrom, whether any rational fact finder could have found the elements of the offense beyond-: a reasonable doubt. The duty of the reviewing Court is to ensurethe evidence

presented actually supports a conclusion that the defendant committed the crime. Williams v. State, 235 S.W. 3d 742,750 (Tex. Crim. App. 2007).-It is required thatr.the Court of Appeals always address sufficiency ;ofu evidence

challanges. McFarland v. State, 930 S.W. 2d 99 (Cr. App. 1996). See Jackson v. Virginia, 433 U.S. 307, 99 S.Ct. 2781, -61 L.Ed. 2d 570 (1979). The Cons titution prohibits the criminal conviction of any person except upon proof

of guilt beyond a reasonable doubt. In re Windship, 397 U.S. 358,364, 90 S. Ct. 1068, 25 L.Ed. 2d 368 (1970). The question in this case is wfefcstandard is to be applied when the claim is made that a person has been convicted in a state court upon insufficient evidence which clearly becomes aaoonstitufi-*•: ional claim,, the legal sufficiency standard.

At trial the State of Texas was required to prove each essential elem

ent of the offense beyond a reasonable doubt. Texas Penal Code c2i01. The essential elements relevant to the assault charge brought against Appellant

are contained in Section 22.01 of the.Texas Penal Code and in the indictment.

22.01(b)(2)(B):I CvR. 13-14. The Appellant complains that he was not a "Mensber of Household", Texas Family Code Sectibn 71.005, as charged in indict

ment ,pertinent to Penal Code 22.01(b)(2): I C.RI >13tl4.: tThis essential element was required by the State to be proven at trial. "Family Violence" means:(1) an act by a member of a family or household against another mem

ber of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat thatr.rsasonablyplaces the member in fear of imminent physical harm, bodily injury, assault

or sexual assault, but does not include defensive measures to "^protect /.one self. Ber-tirienfe,(3) dating violence, as that term is defined toy" Section 71.0021. See Haynes V. State, 254 S.W. 3d 466,2007 Tex. App. Lexis 1338.

During the trial it was clear that the Appellant lived in Southfield, Michigan with wif6j BT# VII R>R> 88> ^ victim als6 testified that " He totally was not living with me, only in San Angelo working, but still was going home". IX R.R. 77. Victim also goes on to state " I was not living in home long only firdm-; late July-August 2013, due to house needing work V. IX R.R. 77. This concludes that it was impossible to be living :with:, the victim at the time of alleged assault •'^he.assaalt was alleged on September 3, 2013 which would be totally contrary to victims testimony. .See Haynes^ 2007 Tex. App. Lexis 1338; Malik v. State, 953 S.W. 2d 234 (Tex. Crim. App. 1997). Family Violence is what gave trial court jurisdiction, what was al leged, what was charged, what was convicted of, and what Vfehe-r "affirmative findings was. I,C.R. 34-35. See also Appellant testimony, X..R.R. 88,-99-100.

The Appellant further complains that He and the victim was not in a

"'.(Dating Relationship ".also alleged in indictment, Texas-Penal fCode .22.01 (b)(2)(B).;. I C.R. 13-14. Pertinent to 22.01(b)(2)(B) is the Family Code of Section 71.0021(b) Dating Relationship and defines as followed: A relatio nship between individuals who have or have had a continuing eelationship of a romantic or intimate nature. The existance of such ra::?.relationship

shall be determined based on consideration of: (1) the length of the rela tionship; (2) the nature of the relationship; and (3) the frequency and type of interaction between the persons involved in the relationship, (c) A casual acquaintanceship or ordinary fraternization in a business or socr-

ial context does not constitute a "dating relationshipMunder Subsection (b). This was an essential element and was to be proven by the State.

During the trial victim testified to Appellant not having keys to home.-IX^TRi-100.,.Victim also testified to being married during allegations

of alleged assault. IX R.R. 91. There was also testimony fromviiSt3M:tiusband that they been married twelve years. X R.R. 34. Appellant testified td:being "married and being faithfull at time of alleged assault.and'-orily relationship to victim was of business nature only, X R.R. 61-62. The victim testified to the Appellant's only reason for being at her resident was doing work with remodel. IX R.R- 100. During cross-examination Appellant testified to the

fact of being at victim resident doing contract work installing cable and

camera's. X R.R. 86-88; Defendant'exibit's 1-5."The husband VD,'of-victim testified to victim falsely making claims in order to try and benefit her

self. X R.R. 35-36. VD further testified during cross-examination that he did'Tnot know Appellant well and seen only one time at him and the victims

resident doing cable and never again since. X R.R. 44. With this Appellant

concludes that it would be very hard to believe that there was ..aaadafcing relationship between he and the victim, from the evidence given at trial,

but more of a business nature with no relation at all. See Halton v. State

2015 Tex. App. Lexis 6769; Wingfield v. State 2015 Tex. App. Lexis 12080; and Leach v. State 2015 Tex. App. Lexis 12429.

Furthermore amongst other complaints of legally-.insufficient evidence.:

of untested DNA of blood saliva; IX R.R. 62, untested handprints on floor; IX R.R. 32, Exhibit 7 and 8, photos of injuries taken days after alleged

assault; IX R.R. 89-90, Exhibit 20, 21, and 22, and the fact tthat :bthe photos of crime scene were taken five hours prior to 911 call; IX R.R. 28,

X R.R. 46-48, Exhibit 1-9, it is possible without medical experts testimr ony also pursuant to Texas Rules Rule 702, that the ;.evidenve in support of Appellant's conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt. See Pierce v. State,7777 S.W. 2d 399, 414; 496 U.S. 912, 110 S.Ct. 2603; Reese v. State, 33 S.W. 3d 238.

SUMMARY OF ARGUMENT OF GROUND NUMBER THREE

The Court of Appeals erred in holding that the trial court did .:not abuse its discretion.

ARGUMENT OF GROUND NUMBER THREE

When reviewing the abuse of discretion standard, the reviewing court looks to see if the ruling is arbitrary, unreasonable, or.without reference to any guiding rules or principles. l,See Lyles/v. State, 850 S.W.2d 497,502 (Tex. Crim. App. 1993). The mere fact that a:trialocourt decides a matter outside the zone of reasonable disagreement,which differes from the way a

appellate court would have resolved the matter, demostrates abuse?..Martinez

v. State, 327 S.W.3d 727,736 (Tex. Crim. App.).

During the guilts-innocent phase of trial the Appellant complains the trial court abused its descretion by allowing the state to produce eviden

ce of extraneous offenses. Prior to trial a Motion in Limine was filed on

behalf of Appellant accordingly. See Newberry v. State, 552 S.W.2d 457,462 (CRim. App. 1997). As the question of admission of extraneous offenses was offered by the State, Appellant preserved error by timely objecting .during r? a hearing outside of the jury. X R.R. 26-29. The trial court ruled?Sthat?

according to his balancing test and rules of evidence He must follow, the extraneous offense evidence substantially dont outweigh the entire prejud ice, which-isrla matter of fair due process. X R.R. 29. This ruling was'of concurrence to the same admission of priors of victim for impeachment got

cross-examination. IX R.R. 95-99. After trial court ruled that HewrTllnot allow the State to bring in extraneous offenses in front of the jury even if it is proven to be Appellant, X;R:R.v,=28y plsa to extraneous offenses at that time were elicited as testimonial evidence. X:R.R. 82. State was all owed to bring in front of the jury extaneous offenses, therefore trlaT. court abused its discretion. X R.R. 90-91. This ruling was not arbitrarily or

capriciously. The Appellate Court must measure the trial court's :_.ruling against the relevent criteria by which Rule 403 decision is to be made. See United States v. Benton, 637 F.2d 1052 (CA5:':i981); 465 U.S. 1067, 104 S.CT. 1419,79 L.Ed.2d 744 (1984). Error to admit extraneous is not harmless due

to being highly prejudicial and likely factored into jury's "fdecision 'to convict. 593 p.3d 480,486 (6TH Cir. 2010), U.S. v. Jenkins. See also U.S.

v. Curley, 639 F.3d 50,62-63 (2CD Cir.72011). The trial court also abused its descretion in not instructing the jury to use extraneous offenses for

limited purposes only. Ex Parte Varelas, 45 S.W. 3d 627,632 (citing) Georrge v. State, 890 S.W2d 73,76. thus further shows that the extraneous of

fenses was relied upon heavily'to both bolster the testimony of the comp-r

lainant and undermine the credibility of testimony. 479 F.3d 492,504(2007).

The Appellant further complains that the trial court abused its des

cretion in failing to [GRANT] Appellant's requested lesser-included offe nse instruction.pursuant to Texas Criminal Code and Procedure Art..'.37.09. X R.R. 135. During charge conference there was some confusion ombbtftVsides

of';the partiesyf.in-regards to the charge. X R.R. 133-148. An .instruction on a lesser included offense is warranted so long as there is some evide

nce which is directly germane to the lesser included offense for the fact

finder to consider, regardless of whether the evidence was strong or weak, unimpeached or contradicted. See Rousseau v. State, 855 S.W.2d 666,672(Tex.

Crim. App. 1993); Bell v. State, 693 S.W.2d 434,442 (Tex. Crim. App, 1985). The trier of fact is always free to selectively believe all or part of the

testimony proffered and introduced by either side. Bignall v. State, 887 S.W.2d 24; and cases cited therein. At the charge conference the Appellant timely objected to the omission of the lesser included instruction. X R.R.

135."This preserved error for review. Determining whether a defendant is entitled to a lesser-included offense instruction requires a two-part an

alysis. Goadv. State, 354 S.W.3d 443,446 (Tex. Crim. App. 2011); State,v.

Meru, 414 S.W.3d'159,162 (Tex. Crim App. 2013). It is clear that ^.neither party disputes that assault causing bodily injury is a 71esser^:included

offense of family-violence assault by strangulation as charged in the ind

ictment. I C.R. 13-14. The second part:"Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge.'' Worth-

am v. State, 412 S.W.3d3552,558 (Tex. Crim. App. 2013); Sweed v. FState, 351 S.W.3d 63,68 (Tex. Crim. App. 2011). However,"it is not enough :that the jury may disbelieve crucial evidence pertaining to the greater offense, but rather, there must be some evidence directly germane to the. lesser. -

included offense for the finder of fact to consider before an instruction

on a lesser-included offense is warrented." Sweed, 351 S.W.3d at 68(quoting Skinner v. State, 956 S.W.2d 532,543 (Tex. Crim. App. 1997);see Williams v. State, 294 S.W. 3d 674,681 (Tex. App.-Houston[lst Dist. 1*2009). During the direct examination of the guilt-innocent phase of the trial, the Appellant

denied ever creating any injuries to the victim. XTtlRT -58-61 .The Appellant in summary also testified to never assaulting nor choking victim. XTCR.. 66. Further on cross examination Appellant testified to never touching victim

at all on the night of September 2, 2013. X R.R. 97. The jury was free to

believe this testimony by Appellant, and disbelieve the rest of what he said. As with the instruction on the lesser-included offense of misdemea

nor assault the evidence of not choking concludes that a lesser-included

instruction was entitled to Appellant. If the jury believes that there was no dating relationship as the defendant testified to also, X R.R. 66, then

the Stae would have us all focus solely on Appellant's "blanket" denial of criminal culpability in any element of the assault family violence. This

misconstrues the case law, including Bignallv. State, on this issue. It neglects the fact that the jury is permitted to believe or disbelieve any

part of a witness' testimony, including a defendant. It disregards the'fact that a lesser-included offense can be raised by any evidence from any sou

rce so long as a rational trier of fact could conclude from that evidence that a defendant is guilty only of the lesser-included offense. Bignall v.

State,.^887 S.W.2d 22-24 (Tex. Crim. App. 1994); Schweinle v. State, 915 S. W.2d 19 (Tex. Crim. App. 1996). So therefore along with other evidence of not being of a household member in argument one and of not being .in? any

type of dating relationship, but work and business only, the trial court

erred when it denied the appellant's request for lesser-included ?6ffense instruction? making its ruling arbitrary, unreasonable, and without refe-?

8

rence to any guiding rules or principles, with the mere fact of abusing its. discretion deciding the matter outside the zone of reasonable disagreement. Furthermore amongst other complaints, of trial courts abuse of discretion of denying material Out-Of-State Witness Applications and Motions, II C.R. 59-

78; IIV R.R. 26-28, trial court allowing the State to present and'administer testimony from an unauthorized witness, see Richardson v. State, 744 SiW.

2d 65,77 (Tex. Crim. App. 1987); Hightower v. State, 629 S.W.2d 920 ( Tex. Crim. App. 1981); and Young v. State, 547 S.W.2d 23 (Tex. Crim. App. 1977), and the fact that the trial court summoned no blacks and mainly women for

the jury duty of this trial, for the purpose of handing out souvenirs.at-the end of trial, as trial cburt"quotes", X R.R. 179, see Vasquez v. Hillery, 474 U.S. 254,259 106 S.Ct. 617, 88 L.Ed. 2d 598; Batson v. Kentucky, 476 U.S::.79

(1986), only shows that the jury was impartial, unfair contrary to the Con stitution of the U.S. and Texas, and shows that the trial court was bias in

decisions made of its discretion. It also.shows that the jury was impaneled three days prior to trial. II C.R. 99-100. Voir Dire, VII R.R. 1-130; jury

summoned, II C.R. 91-102; panelled, II C.R. 79. Therefore the Court of App eals erred in holding that the trial court did not abuse its discretion.

SUMMARY OF ARGUMENT OF GROUND NUMBER FOUR

The Court of Appeals erred in holding that the jury charge was::not erroneous.

ARGUMENT OF GROUND NUMBER FOUR

When reviewing a jury charge error the Appellate Court reviews charge in two steps: first, it determines whether error exists; if so, 7it then

evaluates whether sufficient harm resulted from the error to require rev ersal. The degree of harm required for reversal depends on whether thejjisy-

charge error was preserved in the trial court. X R.R. 133-148. If the jury chargeTerror has been properly preserved by an objection or request for an instruction, reversal is required if the Appellant has suffered "someharm"

from the error. When the error was not objected to, the error must be "fu ndamental" and requires reversal only if it was so egregious and "created

such harm that the defendant was deprived of a fair and impartial trial:., A trial court is statutorily obligated to instruct the jury on the "law app

licable to the case," which requires that the jury be instructed on each element of the offense charged..Tex. Code Crim. Proc. Ann. art.36.14. The "law applicable to the case" includes the statutory definitions that effect the meaning of the elements of the offense. Thus, a trial court must comm

unicate to the jury each statutory definition related to the charged offe nse. The trial court is ultimately responsible for the accuracy of the jury

charge and accompanying instructions. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985); Price v. State, 457 S.W.3d 437,440 (Tex. Crim. App. 2015); Villarreal v. State, 286 S.W.3d 321,329 (Tex. Crim. App. 2009). 7 During the charge conference as there was much confusion to the jury

charge, X R.R. 133-148, the trial court made the statement of not instruc ting the jury on charged offense of "Family Violence", X R.R. 134'-..The, trial

courtwerit on to quote that "Dating Violence" was not in the definition of Family Violence, X R.R. 133-134,' which is pertinent to the Family Code of

Family Violence 71.004 (3) dating violence, as the term is defined by Sec. 71.0021-of the Family Code. This clearly misapplied the law and instructed the jury:.to only deliberate on?partial elements of the charged offense. As

general matter, states are free to define criminal offenses as they see fit. Smith, 120 F.3d 414."However, once the state has defined the elements of an • offense, the Federal Constitution imposes constraints upon the states auth ority to convict the person of the offense." In particular, the Due Process Clause of the fourteenth Amendment protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to con stitute the crime with which He is charged.See Windship, 397 U.S. 358,364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Accordingly, a "jury instruction" or

10

"jury charge" that omits or materially misdescribes an essential element of

an offense as defined by state law, relieves the State of its obligation to prove facts constituting every element of an offense beyond a reasonable

doubt, thereby violating the defendant's Federal Due Process Rights. Smith, 120 F.3d at 415;see also SandstC.Qmv. Montana, 442 U.S. 510,523, 99 S.Ct. 24

50, 61 L.Ed.2d 39 (1971). There was a reasonable likelihood that failing to instruct the jury on Family Violence mislead jury to deliberate only on the language considered in charge and not all the elements of charged offense. See Estel v. McGuire, 502 U.S. 62,72,112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Boyd V. California, 494 U.S. 370,380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990y.

Therefore the Appellant was harmed by this error and is reversable under the^r State law and United States Constitution.

Further the Appellant complains of the jury charge that the trial court;

failed to certify charge and file by clerk before read to jury. Pursuant to Texas Rules of Appellant Procedure Rule 44.2 (c) It is a reversable consti

tutional error when the following matters were disputed in the trial court,

or unless the record affirmatively shows the contrary, the Court of Appeals must presume: (1) That the venue was proved in the trial court; (2) That the

jury was properly impaneled and sworn; (3) That the defendant was arrained; (4) That the defendant pleaded to the indictment or other charging instrum ent; and (5) That the Court's charge was certified by the trial ^court and filed by the clerk before it was read to the jury. During the charge confe rence is when the charge was made and after all the confussion within the

charge is when the charge was read to the jury off the record. X R.R. 133- 147; X R.R 148. It is also clear in the record that the jury :charge:: was

missing, requested, and provided without being filed stamped by trial court-. II C.R. 105-109. The trial court was held in the 391st District but the jury verdict was handed down by the 340th District. II C.R. 110. Therefore the Appellant seeks reversal do to constitutional error on this issue.

Lastly the trial court erred:in failing to tailor the charge to conn-

11

ect the culpable mental state to the nature of conduct element. Texas.Penal Code Ann. 6.03 sets out four culpable mental states-intentionally, knowin gly, recklessly, and criminally negligently; two possible conduct elements, nature of the conduct and result of the conduct; and the effect of the ci rcumstances surrounding the conduct. In a jury charge,- the language in the regard to culpable mental state must be tailored to the conduct elements of the offense. When specific acts are criminalized because of their very na ture, a culpable mental state must apply to committing the act itself. On the other hand, unspecified conduct that is criminalized because cof 7:its result requires culpability as to the result. A trial court errs when it

fails to limit the language in regard to the applicable culpable a.tmental states to the appropriate conduct element. The Appellant was charged with

assault family violence of a household meber and impeding breathing of the: circulation of the nose or mouth. There is two gravaminas in this charge so therefore culpable mental state should have been tailored to both. IC. R. 13-14; II C.R. 105-109.. The Court of Criminal Appeals of Texas uses the gravamen of the offense to decide which conduct elements should be included in the culpable mental-state language. If the gravamen of an offense is the

result of conduct, the jury charge on culpable mental state should be tai lored to the result of conduct and likewise for nature-of-conduct offenses.

If the offense has multiple gravamina, and one gravamen is the -.-result:, 'of conduct and the other is the nature of conduct, the jury charge on culpable mental state must be tailored to both the result of conduct and the nature

of conduct. See Price v. State, 457 S.W.3d 437 (Tex. Crim.,App. 2015); also Hughes v. State, 897 S.W.2d 285,295 (Tex. Crim. App. 1994); -Alvarado--,v. State, 704 S.W.2d 36,38-40 (Tex.Crim. App. 1985). Therefore the trial court erred in failing to tailor the nature of conduct "impeding" and caused eg regious harm to Appellant. McQueen v. State, 781 S.W.2d 600,603 (Tex. Crim.

App. 1989). Thus the Court of Appeals erred in holding that the jury charge of the trial court was not erroneous.

12

SUMMARY OF ARGUMENT OF GROUND NUMBER FIVE

The Court of Appeals erred in holding that Ander's Brief met require ments of Ander's v. California, granting Appellant counsel's 7Mbtion::tbT

Withdraw.

ARGUMENT OF GROUND NUMBER FIVE

The United States Supreme Court does not obligate counsel representi ng a client on appeal to argue in support of grounds for reversal ::6f:: :the

lower court's judgment when after a "conscientious examination" of the case counsel determines appeal to be "wholly frivolous." Anders v. California, 386 U.S. 738,744 (1967). After a review of the partial records provided by the trial court there were a significant amount of errors pertained in the records. I C.R. 1-51; II C.R. 1-113; I R.R. 1-20; II R.R. 1-28; III R.R. 1- 17; IV R.R. 1-12; V R.R. 1-12; VI R.R. 1-19; VII R.R. 1-29; VIII R.R".. 1-138; EC R.R. 1-128; X R.R. 1-180; XI R.R. l-19;,.and XII R.R. States Exhibits 1- 26, Defendant's Exhibits 1-9. These errors were found to be reversable and

would render Anders Brief tobe^"non-frivolous." Although this is not an

ineffective assistance of counsel claim, it violates the laws set forth in Andergw. California and Gainous v. State, by not being frivilous and sho uld not have rendered appellate counsel ability.to withdraw. Therefore the Court of Appeals erred in holding that the standards of Anders v. Califor nia was met and allowing appellate counsel to withdraw, :"thas violating Appellant's 6th Amendment Right to a counsel through appeal process.

CONCLUSION OF ARGUMENTS

This concludes the summeries of Arguments one through five of the Petition for Discretionary Review from pro se Appellant NATHANIEL FRAZIER,, whom Constitutionally hold the Court of Appeals in error on the affirmat ion of His conviction.,Pursuant to Texas rules of Appellate Pro

cedure Rule 66.3, 68.4.

13

PRAYER FOR RELIEF

NATHANIEL FRAZIER, Appellant Pro Se, Prays .this :Court .

acknowledge his Petition for Discretionary Review and [GRANT] his request to be heard by the Authorities "of whom the duties is law.

[EXECUTED ON THIS THE ^DAY OF IML 2016]

Respectfully Submitted,

NATHANIEL FRAZIER,; . ?

Pro Se Appellant

TDCJ^ID #1942796

John B. Connally Unit

899 FM 632

Kenedy, Texas 78119

BY:/s//OaJuyrCtJ fhtyUrt

CERTIFICATE OF SERVICE

IMmMXB- PRfiZ&R certify that on the_£7^_ofJUTJf., 2016 , a true and correct copy of the above and foregoing Petition

for Discretionary Review and Court of Appeals [OPINION] was served in accordance with Rules 68-79 of the Texas Rules of

Appellate Procedure on Court of Criminal Appeals Clerk Abel Acosta, Capitol Station, P.O. Box 12308, Austin, Texas 78711, by United States Postal Service.

/s/ AfaduiajJ /iLa^Mrr^

NATHANIEL FRAZIER

TDCJ-ID 1942796

CONNALLY UNIT

899 FM 632

KENEDY, TEXAS 78119

Pro-Se, Appellant

B

Court of Appeals

f o r THE

Third District of Texas

P.O. BOX 12547, AUSTIN, TEXAS 78711-2547 (512)463-1733

Date: February 11,2016

Case Number: 03-14-00655-CR Trial Court No.: D-13-0958-SA

Style: Nathaniel Frazier, Jr. AKANathaniel J. Frazier v. The Stale of Texas

Please be advised that the appellant's motion to withdraw as counsel pursuant to Anders v. California was submitted and granted on the date noted above. The enclosed opinion and judgment were sent this date to the following persons:

Please note: In criminal cases, the attorney representing the defendant on appeal shall, within five days after the opinion.is handed down, send his client a copy of the opinion and judgment, along with notification ofthe defendant's right to file a pro se petition for discretionary review under Rule 68. This notification shall be sent certified mail, return receipt requested, to the defendant at his last known address. The attorney shall also send the court of appeals a letter certifying his compliance with this rule and attaching a copy of the return receipt within the time for filing a motion for rehearing. See Tex. R. App. P. 48.4.

The Honorable Lisa C. McMinn Mr. Nathaniel J. Frazier Junior State Prosecuting Attorney John B. Connally Unit P.O.Box 13046 899 FM 632 Austin, TX 78711 TDCJ No. 01942796 * DELIVERED VIA E-MAIL * Kenedy, TX 78119

Mr. Jason Ferguson The Honorable Billy Ray Stubbiefield Assistant District Attorney Administrative Judge 124 W.Beauregard Ste.B Williamson County Courthouse San Angelo, TX 76903 405 Martin Luther King, Box 2 * DELIVERED VIA E-MAIL * Georgetown, TX 78626 * DELIVERED VIA E-MAIL *

Ms. Kelly J. Workman-Ellis Ellis & Mock, PLLC 125 South Irving Street San Angelo, TX 76903 * DELIVERED VIA E-MAIL *

The Honorable Thomas J. Gossett The Honorable Sheri Woodfin Judge, 391st District Court District Clerk Tom Green County Courthouse Tom Green County Courthouse 112 W. Beauregard 112 West Beauregard San Angelo, TX 76903 San Angelo, TX 76903-5850 * DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *

Mr. Justin Mock

Ellis & Mock, PLLC

125 South Irving Street

San Angelo, TX 76903

* DELIVERED VIA E-MAIL *

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

JUDGMENT RENDERED FEBRUARY 11, 2016

NO. 03-14-00655-CR

Nathaniel Frazier, Jr. AKA Nathaniel J. Frazier, Appellant

The State of Texas, Appellee

APPEAL FROM THE 391ST DISTRICT COURT OF TOM GREEN COUNTY BEFORE JUSTICES PURYEAR, PEMBERTON, AND BOURLAND AFFIRMED ~ OPINION BY JUSTICE PURYEAR

This is an appeal from the judgment of conviction entered by the trial court. Having reviewed the record and the parties' arguments, the Court holds that there was no reversible error in the trial court's judgment of conviction. Therefore, the Court affirms the trial court's judgment of conviction. Because appellant is indigent and unable to pay costs, no adjudication of costs is made.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-14-00655-CR

Nathaniel Frazier, Jr. AKA Nathaniel J. Frazier, Appellant

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 391ST JUDICIAL DISTRICT NO. D-13-0958-SA, HONORABLE THOMAS J. GOSSETT, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant was indicted for assault-family violence, a third- degree felony. See Tex.

Penal Code § 22.01(b)(2)(B). At trial, the jury heard evidence that appellant and Sandra:Salinas were engaged in an intimate dating relationship, that on September 2, 2013, they argued, and that appellant struck Salinas, threw her to the ground, and choked her, causing her to be unable to breathe. At the conclusion ofthe evidence, the jury found appellant guilty of assault of a household member. At the conclusion of the punishment phase of the trial, the trial court found the enhancement paragraph contained in the indictment to be true and assessedpunishment at eighteen years in prison.

Appellant's court-appointed attorney has filed a motion to withdraw supported by a brief concludingthat the appeal is frivolous and without merit. Counsel's briefmeets the requirements ofAnders v. California by presenting a professional evaluation ofthe record and demonstrating that there are no arguable grounds to be advanced. See Anders v. California, 386 U.S. 738, 744-45 (1967); Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009); see also Penson v. Ohio, 488 U.S. 75,80-82 (1988). Appellant's counsel has represented to the Court that he provided copies of the motion and brief to appellant; advised appellant ofhis right to examine the appellate record, file a pro se brief, and pursue discretionary review following the resolution of the appeal in this Court; and provided appellant with a form motion for pro se access to the appellate record along with the mailing address ofthis Court. See Kellyv. State, 436 S.W.3d 313,319-21 (Tex. Crim. App. 2014); see also Taylorv. TexasDep't ofProtective &Regidatory Svcs., 160 S.W.3d 641,646-47 n.4 Tex. App.—Austin 2005, pet. denied). Appellant requested and received the appellate record and filed a pro se brief.

We have independently reviewed the record and appellant's pro se brief and have found nothing that might arguably support the appeal. See Anders, 386 U.S. at 744; Garner, 300 S.W.3d at 766; Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). We agree with counsel that the appeal is frivolous and without merit. We grant counsel's motion to withdraw and affirm the judgment of conviction.1

1 No substitute counsel will be appointed. Should appellant wish to seek further review of his case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionaryreview or file a pro se petition for discretionaryreview. SeegenerallyTex. R. App. P. 68-79 (governing proceedings in Court of Criminal Appeals). Any petition for discretionary reviewmustbe filedwithinthirtydays from the date of eitherthis opinion or the date that this Court overrules the last timely motion for rehearing filed. See id. R. 68.2. The petition must be filed with the clerk of the Court of Criminal Appeals. Id. R. 68.3(a). If the petition is mistakenly filed with this Court, it will be forwarded to the Court of Criminal Appeals. Id. R. 68.3(b). Any petition for discretionary review should comply with the rules ofappellate procedure. See id. R. 68.4. Once this Court receives notice that a petition has been filed, the filings in this case cause will be forwarded to the Court of Criminal Appeals. See id. R. 68.7.

David Puryear, Justice

Before Justices Puiyear, Pemberton, and Bourland Affirmed

Filed: February 11, 2016 Do Not Publish ........

NATE FRAZIER #1942796 CONNALLY UNIT iH,ii,m»I»i'I'|I,,iIiI,i"i,,|I|i,|ii!Im!iiIIiI,I 899 FM 632 JCENEDY,,; rTEXAS: 781.1,9 *^v„...

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COURT OF CRIMINAL APPEALS ABEL ACOSTA, Clerk

CAPITOL STATION

P.O. BOX 12308

AUSTIN, TEXAS 78711