Jolly Dee Neely v. State
12-14-00309-CR
| Tex. App. | Apr 10, 2015Background
- Appellant Jolly Dee Neely was indicted for aggravated assault with a deadly weapon (knife) after the victim, Jackie McClain, testified he struck her and held a knife to her throat; jury found him guilty.
- Appellant had a recent prior conviction for assault with a deadly weapon involving the same victim and was on probation (with a weapons prohibition) at the time of the charged offense.
- At trial the State introduced the prior conviction and testimony that Appellant blamed McClain for his loss of weapons as motive; the court overruled defense objections and the testimony was admitted.
- Appellant testified at trial and, on cross-examination, acknowledged the prior conviction and probation conditions; the State used that conviction to impeach his credibility.
- The trial court assessed six years’ confinement; the judge ordered the term to run consecutively to the prior sentence. Appellate counsel reviewed the record and filed an Anders-style brief concluding there are no arguable grounds for appeal and moved to withdraw.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Neely) | Held |
|---|---|---|---|
| Admissibility of prior conviction/extraneous-act evidence | Prior conviction and victim's testimony about motive are admissible as contextual evidence and to show motive/intent | Evidence is prejudicial/too attenuated to show motive (prior offense occurred earlier) | Court allowed admission; admissible under Rule 404(b) and 609 for motive and impeachment; no reversible error |
| Impeachment by prior felony conviction under Rule 609 | Prior felony conviction <10 years is admissible to impeach once defendant testifies; probative value outweighs prejudice | Admission is overly prejudicial and harms fairness | Admission was proper under Theus balancing factors; probative value outweighed prejudice |
| Sufficiency of the evidence for aggravated assault | Testimony and physical evidence (knife) support jury verdict beyond a reasonable doubt | Appellant denied the acts; challenges credibility | Viewing evidence in light most favorable to verdict, a rational trier of fact could find elements proven; sufficiency upheld |
| Punishment / sentencing errors | Sentence (6 years) is within statutory range and properly assessed; cumulation order based on State motion | Any challenge to punishment or fees | No arguable error in punishment; within statutory range and no improper fees found |
| Ineffective assistance of counsel | Trial counsel filed motions, objected, argued, and presented defense; performance reasonable | Counsel may have been deficient in pretrial or trial choices | Record shows no arguable ineffective-assistance claim under Strickland; presumption of adequate representation upheld |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (procedures when appointed counsel seeks to withdraw on grounds of no meritorious appeal)
- Jackson v. Virginia, 443 U.S. 307 (1979) (legal-sufficiency standard for criminal convictions)
- Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (deference to factfinder on credibility and legal-sufficiency review)
- Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992) (factors for Rule 609 impeachment balancing)
- Alexander v. State, 740 S.W.2d 749 (Tex. Crim. App. 1987) (defendant who testifies may be impeached like any other witness)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-pronged ineffective-assistance standard)
- Morris v. State, 67 S.W.3d 257 (Tex. App.) (importance of defendant's credibility when defendant is sole defense witness)