State of Louisiana v. Clarence Walker Nelson

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 12-11

STATE OF LOUISIANA

VERSUS

CLARENCE WALKER NELSON

**********

APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C9236
HONORABLE ERIC ROGER HARRINGTON, DISTRICT JUDGE

**********

BILLY HOWARD EZELL
JUDGE

**********

Court composed of Oswald A. Decuir, Jimmie C. Peters, and Billy Howard Ezell,
Judges.

AFFIRMED.

Van Hardin Kyzar
District Attorney, Tenth Judicial District Court
P. O. Box 838
Natchitoches, LA 71458-0838
(318) 357-2214
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

Edward John Marquet
Post Office Box 53733
Lafayette, LA 70505-3733
(337) 237-6841
COUNSEL FOR DEFENDANT/APPELLANT:
Clarence Walker Nelson

Robert Stuart Wright
P.O. Box 1156
Natchitoches, LA 71458-1156
(318) 352-9950
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

Clarence Walker Nelson
Louisiana State Penitentiary
Camp-C Bear-4
Angola, LA 70712
COUNSEL FOR DEFENDANT/APPELLANT:
Clarence Walker Nelson

EZELL, Judge.

The following procedural history was taken from State v. Nelson, 07-701, p.

1 (La.App. 3 Cir. 1/30/08), 977 So.2d 1061, 1062, writs denied, 08-494, 08-497

(La. 10/3/08), 992 So.2d 1009.

The Defendant, Clarence Walker Nelson, was found guilty of
aggravated battery, in violation of La.R.S. 14:34. On November 28,
2006, he was sentenced to serve ten years at hard labor. On
December 11, 2006, the State filed a habitual offender bill in
accordance with La.R.S. 15:529.1. Thereafter, on January 26, 2007,
the Defendant was adjudicated as a third-time habitual offender and
sentenced to life in prison without benefit of parole, probation, or
suspension of sentence. The Defendant filed his notice of appeal on
February 7, 2007, which was granted by the trial court on February
12, 2007. The Defendant is now before this court seeking review of
his conviction and adjudication, alleging the following assignments of
errors:

1) The evidence was insufficient to support the
aggravated battery conviction.
2) The evidence was insufficient to support the habitual
offender adjudication.

The Defendant‟s habitual offender conviction was affirmed. This court concluded,

however, that his conviction for aggravated battery was not before the court in

light of State v. Felix, 05-637 (La.App. 3 Cir. 12/30/05), 918 So.2d 577, writ

denied, 06-1137 (La. 11/22/06), 942 So.2d 548.1

The Defendant is now before this court on appeal, arguing that the evidence

was insufficient to support his conviction for aggravated battery. Additionally, the

Defendant agues pro se that he was denied effective assistance of counsel at

sentencing and the habitual offender hearing/sentencing and that his trial by a six-

1
In Felix, this court issued an order denying the defendants request to supplement the
record with the transcript of the habitual offender proceedings. The habitual offender
proceedings were filed under a different docket number than the underlying conviction, and the
motion for appeal was filed in the docket number of the underlying conviction. Thus, no appeal
had been filed in the docket number of the habitual offender proceedings.
2

person jury denied him due process and equal protection of law. We find the

Defendant‟s conviction should be affirmed.

ASSIGNMENT OF ERROR

By this assignment of error, the Defendant argues that the evidence was

insufficient to support his conviction for aggravated battery. Since this court‟s

ruling in the Defendant‟s prior appeal, the supreme court in State v. Means, 09-

1716, p. 2 (La. 4/9/10), 32 So.3d 805, 806 (second alteration in original), held that

“[h]abitual offender proceedings do not charge a separate crime but are a part of

the original proceeding leading to conviction, State v. Alexander, 325 So.2d 777,

779 (La.1976), and a defendant generally may appeal only from „[a] judgment

which imposes sentence.‟ La.C.Cr.P. art. 912(C)(1).” As such, this court‟s ruling

in Felix, 918 So.2d 577, was effectually overruled. Since the Defendant‟s

underlying conviction for aggravated battery was not before this court in his prior

appeal pursuant to Felix, that conviction is now properly before this court in light

of the Means decision and the trial court‟s grant of an out-of-time appeal on the

underlying conviction for aggravated battery.

Although this court did not rule on the sufficiency of the evidence to support

the Defendant‟s conviction for aggravated battery, it nonetheless concluded that

the evidence adduced at trial was sufficient:

After a jury trial on September 20, 2006, the Defendant was
convicted of aggravated battery, in violation of La.R.S. 14:34, which
states in pertinent part, “[a]ggravated battery is battery committed
with a dangerous weapon.” Battery is defined in La.R.S. 14:33 as
“the intentional use of force or violence upon the person of another; . .
. .” Thus, the State had to prove: one, that the Defendant committed
the offense of battery; and two, said battery was committed with a
dangerous weapon. The court finds that there was sufficient evidence
presented at trial to find the Defendant guilty of the offense of
aggravated battery.

3

At trial, the following facts were adduced. Debra Williams, the
victim, testified that she and the Defendant had lived together for
several days, and on the day in question, she told the Defendant that
she wanted him and his friends to leave her home. She then
proceeded to put his belongings outside. Ms. Williams testified that
in response to her comments and actions the Defendant “[r]an in the
house and stabbed me in my arm.” She went on to testify that, while
she did not know what type of knife the Defendant had, he did have a
knife.

The Defendant also testified at trial that he and Ms. Williams
did have some words about him leaving; however, at the time he left,
he testified that she was in good health. On cross-examination, the
following exchange took place:

Q [State]: All right, and you left, and uh . . . all of a
sudden she‟s got blood all over the house, and uh . . . a
big gash in her arm, and she‟s out there with a towel
sitting in the street?

A [Defendant]: Yes, sir.

Q [State]: And you didn't have nothing to do with it?

A [Defendant]: No, sir, if I'd had something to do with,
I‟d had blood on me, if they got it all over the house, it
would be impossible.

Q [State]: You had an hour . . . there was an hour, after it
happened, before they found you?

The Defendant notes in his brief that other than the testimonies of
himself, Ms. Williams, and the responding officers, no other evidence
was offered. Notwithstanding the fact that the State only chose to put
on testimonial evidence, the jury had the opportunity to hear
testimony and make credibility determinations for each witness. The
State provided sufficient evidence such that a jury could have
concluded beyond a reasonable doubt that the Defendant intentionally
inflicted wounds upon Ms. Williams, with a knife, so as to be found
guilty of the offense of aggravated battery. Accordingly, the
Defendants assignment of error alleging insufficiency of evidence for
his aggravated battery conviction is without merit. The court feels it
is necessary to review the conviction for sufficiency of evidence to
substantiate the habitual offender charge in this case. It is not
reviewing it as an appeal of the conviction.

Nelson, 977 So.2d at 1063-64.

4

Considering this court‟s prior finding regarding sufficiency of the evidence,

no further review is necessary in the instant appeal; the Defendant‟s conviction for

aggravated battery is affirmed.

PRO SE ASSIGNMENT OF ERROR NUMBER ONE

By this assignment of error, the Defendant argues that he was denied

effective assistance of counsel at sentencing and the habitual offender hearing and

sentencing. The Defendant asserts that at his original sentencing on November 28,

2006, defense counsel failed to argue and/or object to the maximum hard labor

sentence of ten years. The Defendant also contends that his presentence

investigation report contained inaccurate information of a pending first degree

murder charge that was considered by the trial court. Additionally, the Defendant

complains that defense counsel did not file a motion for new trial or for

reconsideration of sentence. Lastly, the Defendant claims that defense counsel did

not prepare him for his habitual offender hearing on January 26, 2007, by

reviewing with him the relevant statute to ascertain the State‟s burden of proof and

to object accordingly.

On January 26, 2007, the trial court vacated the Defendant‟s original

sentence of ten years at hard labor and sentenced him as a third felony offender to

life imprisonment, without benefit of parole, probation, or suspension of sentence.

As such, the Defendant‟s claims of ineffective assistance of counsel at his original

sentencing are moot.

Additionally, the Defendant was granted an out-of-time appeal on his

conviction for aggravated battery only. At the time the appeal was lodged in this

court, docket number C9236-1, the Defendant‟s habitual offender proceeding, was

erroneously included in the appeal and briefing notices. Accordingly, the

5

Defendant‟s claim of ineffective assistance of counsel at his habitual offender

hearing and sentencing are not properly before this court and should not be

considered herein.

Lastly, the Defendant did not provide a legal or factual argument in his pro

se brief regarding his claim that defense counsel was ineffective for failing to file a

motion for new trial. Accordingly, that argument was abandoned and is not

considered by this court. Uniform Rules―Courts of Appeal, Rule 2-12.4.

PRO SE ASSIGNMENT OF ERROR NUMBER TWO

By this assignment of error, the Defendant argues that his trial by a six-

person jury denied him due process and equal protection of the laws and

constituted a patent error. He maintains that his original charge of aggravated

second degree battery was serious enough to be tried by a twelve-person jury as he

was exposed to mandatory fines or imprisonment, with or without hard labor, for

fifteen years.

At the time of the offense, the penalty for aggravated second degree battery

was a fine of not more than $10,000 or imprisonment, with or without hard labor,

for not more than fifteen years, or both.2 La.R.S. 14:34.7. As provided in La.Code

Crim.P. art. 782(A), “[c]ases in which the punishment may be confinement at hard

labor shall be tried by a jury composed of six jurors, all of whom must concur to

render a verdict.” As such, the Defendant herein was appropriately tried by a six-

person jury; thus, this assignment of error has no merit.

CONCLUSION

The Defendant‟s conviction for aggravated battery is affirmed.

AFFIRMED.

2
The Defendant was originally charged with second degree battery but convicted of
aggravated battery.
6