Houston Chronicle, June 22, 1998

Daughter testifies against mother in beating case--
8-year-old boy died after being disciplined

By Paul McKay

CONROE -- A woman accused of fatally beating her 8-year-old half-brother with her hands, a switch and a belt listened quietly Monday as her 20-year-old daughter testified against her.

Diana Lynn Miskell, 39, who is charged with murder and injury to a child, contends that she did not mean to kill Herman Nelson after the boy and his three young sisters came home from school on Oct. 24. The four children were living temporarily with her at the time.

But Miskell's daughter, Christy Nelson, testified that she was obeying her mother when she went outside their New Caney home and got a switch that she said Miskell used to beat the boy in an assault that extended for hours.

Nelson, who did not say how she was related to Herman, said she also complied when her mother told her to get a dog leash that Miskell used to tie his hands to a rocking chair.

While acknowledging that she had hit Herman at other times, Nelson -- who said she recently moved to La Porte -- denied under cross examination that she hit him or held him down for her mother on the day he died.

Montgomery County prosecutor Mike Griffin told the jury of seven men and five women that Miskell -- who was keeping Herman and his siblings for one of her sisters who had legal custody of them and was recovering from a back ailment -- beat the boy to death because she was "less than pleased" about the clothes he had worn to school that day.

Griffin said testimony, expected to be finished later this week, also will show that she was angry because "she thought he lied about the tooth fairy."

"She determined to physically discipline him," Griffin said. "She began beating that child with her hand, but the evidence will show that her hands were not enough to discipline that 8-year-old child.

"So she beat him with a belt and a belt buckle," Griffin said. "The child fought back and tried to escape, and she beat him some more. Then she ran him around a kitchen table to tire him out. The child vomited and couldn't run anymore. The defendant took the child to her bedroom, where the child died."

According to testimony in state District Judge James Keeshan's court, Miskell abused Herman intermittently from the time he arrived home from school about 3:30 p.m. until late in the evening. A physician told jurors the boy was dead on arrival at a Kingwood hospital at 11:45 p.m.

Defense attorney Greg Lindley told the jury that he will not try to "smooth over" the conduct of his client, noting that pictures the jurors will see of the boy's body "are going to be nauseating at best."

Asserting that Miskell did not "intentionally and knowingly" kill Herman, Lindley told the jurors he wants them to consider that she was raised in a dysfunctional family and has maintained a dysfunctional lifestyle in adulthood.

The boy's father, Marvin Nelson -- who also is Miskell's father -- is in a Texas prison for a theft conviction. His 30-year-old mother, Cindy Norris, now living in Arkansas, lost custody of the boy and his sisters after being found unfit to retain custody.

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