ACCEPTED 01-14-00597-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 7/28/2015 10:32:03 PM CHRISTOPHER PRINE CLERK
NO. 01-14-00597-CR
IN THE COURT OF APPEALS FILED IN 1st COURT FOR THE FIRST DISTRICT OF TEXAS HOUSTON, OF APPEALS TEXAS AT HOUSTON 7/28/2015 10:32:03 PM CHRISTOPHER A. PRINE Clerk
JODY WAYNE WHELCHEL, Appellant
VS.
THE STATE OF TEXAS, Appellee
Trial Court No. 12-DCR-059468
Appeal from the 400th Judicial District
Fort Bend County, Texas
BRIEF FOR APPELLANT
Dawn Zell Wright ZELL WRIGHT LAW OFFICES, PLLC State Bar No. 24033498 812 Barrett Street Richmond, Texas 77469 Phone: (832) 701-5297 Fax: (888) 897-3001
ATTORNEY FOR APPELLANT
ORAL ARGUMENT REQUESTED STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, appellant requests
oral argument.
IDENTIFICATION OF THE PARTIES
Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all
interested parties is provided below.
APPELLANT or CRIMINAL DEFENDANT: Mr. Jody Wayne Whelchel
DEFENSE COUNSEL AT TRIAL: Mr. Baltazar Salazar 8814 Brae Acres Houston, Texas 77074-4108
APPELLANT’S ATTORNEYS ON APPEAL: Ms. Dawn Zell Wright 812 Barrett Street Richmond, Texas 77469
STATE’S ATTORNEYS: Mr. John F. Healey, Jr. District Attorney (DA)
Mr. John Harrity Assistant DA on appeal
Mr. Rodolfo Ramirez Ms. Tyra Jones McCollum Assistant DAs at trial Fort Bend County Das Office 301 Jackson Street Richmond, Texas 77469
TRIAL JUDGE: The Honorable Clifford Vacek
ii TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT ............................................. ii
IDENTIFCIATION OF THE PARTIES ................................................................ ii
TABLE OF AUTHORITIES .................................................................................iv
STATEMENT OF THE CASE ............................................................................... 1
ISSUES PRESENTED............................................................................................ 2
STATEMENT OF FACTS ..................................................................................... 2
ARGUMENT AND AUTHORITIES ..................................................................... 8
APPELLANT’S FIRST POINT OF ERROR (Restated) ......................................... 8
APPELLANT’S SECOND POINT OF ERROR (Restated) .................................. 13
CONCLUSION .................................................................................................... 16
CERTIFICATE OF SERVICE.............................................................................. 17
iii TABLE OF AUTHORITIES
CASES
Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010)...................................................... 9 Chambers v. State, 711 S.W.2d 240, 245 (Tex. Crim. App. 1986) ..................................... 8 Clark v. Procunier, 755 F.2d 394, 396 (5th Cir. 1985) ............................................... 10, 12 Coble v. State, 330 S.W.3d 253, 281 (Tex. Crim. App. 2010) .......................................... 14 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595, 113 S. Ct. 2786 ...................... 14 Draper v. United States, 358 .S. 307, 323-324 (1959) ...................................................... 11 Gold v. State, 736 S.W.2d 685 (Tex. Crim. App. 1987) ............................................. 11 Griffin v. State, 614 S.W.2d 155 (Tex.Crim.App. 1981) .................................................... 9 In re Winship, 297 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) .......................... 11 JACKSON V. VIRGINIA, 443 U.S. 307 (1979) ....................................................................................................... 12 Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2879, 62 L.Ed.2d 560 (1979) ...... 8 Kelly v. State, 824 S.W.2d 568, 576 (Tex. Crim. App. 1992)............................................ 15 King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)............................................ 16 MORENO V. STATE, 755 S.W.2D 866 (TEX. CRIM. APP. 1988) ...................................................................... 12 Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).......................................... 16 Richardson v. State, 879 S.W.2d 874 (Tex. Crim. App. 1993) .................................. 11 Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 318 (7th Cir. 1996) ......................................... 14 Texas Employers Ins. Ass’n v. Goad, 622 S.W.2d 477, 480 (Tex. App. — Tyler 1981, no writ)................................................................................................................................ 10 TIBBS V. FLORIDA, 457 U.S. 31 (1982 .......................................................................................................... 12 United States v. D’Amato, 39 F.3d 1249, 1256 (2nd Cir. 1994)................................. 10 United States v. Moreno, 185 F.3d 465, 471 (5th Cir. 1999) cert. denied, 528 U.S. 1095 (2000)............................................................................................................................. 10 Weaver v. State, 855 S.W.2d 116, 119-20 (Tex. App.-Houston [14th Dist.] 1993)........... 17 Weaver v. State, 96 Tex.Crim. 506, 258 S.W. 171 (1924) ................................................ 10
iv RULES
TEX. R. APP. P. 38.2(a)(1)(A) ................................................................................. ii TEX. R. APP. P. 39.1 ............................................................................................... ii TEX. R. APP. P. 9.4(g)............................................................................................. ii TEX. R. APP. P. 44.2(b)..........................................................................................11 TEX. R. Evidence 504(a) .......................................................................................12
v NO. 01-14-00597-CR
IN THE COURT OF APPEALS
FOR THE FIRST DISTRICT OF TEXAS
VS
APPEAL FROM CAUSE NUMBER 12-DCR-059468 IN THE 400th JUDICIAL DISTRICT OF FORT BEND COUNTY, TEXAS
APPELLANT’S BRIEF
TO THE HONORABLE COURT OF APPEALS
This brief is filed on behalf of the Applicant, Jody Wayne Whelchel, by Dawn
Zell Wright, his counsel.
STATEMENT OF THE CASE
Appellant was charged by indictment with arson. (CR 11). In March 2014, a
jury trial commenced (CR 254), which resulted a deadlocked jury with 11finding guilty and 1 finding not guilty. (CR 285-260). The State re-prosecuted the case and
a second jury trial was had on May 13, 15 and 16 and June 27, 2014. (RR I 1). The
jury convicted appellant of the charged offense (CR 376) and Judge Clifford Vacek
sentenced him to 10 years confinement in the Institutional Division of the Texas
Department of Criminal Justice. (CR 394; RR V 6). This appeal follows.
ISSUES PRESENTED Issue I:
Whether a finding of guilt in an arson case constitutes error when the evidence is
legally insufficient because it does not rise to the level of scientific reliability
necessitated by the use of valid scientific methodology.
Issue II:
Whether a wife can be forced to testify against her husband under the victim’s
exception to the spousal privilege rule when the damaged property in question is
their joint property, thereby rendering the trial court’s denial of the defendant’s
Motion to Invoke Spousal Privilege error.
STATEMENT OF FACTS
On January 18, 2012, Jody Wayne Whelchel called 911, twice. (RR IV 72).
His house, the home he shared with his wife and children, was on fire. (RR III 72-
73; RR III 97).
2 Five years earlier, in January 2007, Jody and Dondee, the woman he was
marrying, together decided to buy the house located at 7018 Sundance Meadows.
(RR III 51 and 74). They had already been living together as husband and wife
before buying the house (RR III 72), and since her credit was better than his, the
house was bought in Dondee’s name. (RR III 73). They married that April (RR III
74), and had two children together (RR III 31). While Dondee was the primary
bread earner, Jody economically contributed to the household (RR III 85-87) and
made improvements to their home. (RR III 75).
But their marriage was failing and in 2010 Dondee filed for divorce (RR III
33). Over the next two years, they tried working on their marriage. (RR III 33).
On the day of the fire, though they had been arguing and she wanted him to move
out, they were still married and still living together in the home they shared. (RR
III 44 and 82). In addition to marriage problems, the mortgage on their house was
being foreclosed. (RR III 77).
At the time of the fire, they still shared a marital bed. (RR III 56). After he
was arrested for arson, Dondee bailed her husband out of jail and they continued
working on their marriage (RR III 78-79), but they ultimately divorced later in
2012 (RR III 33).
The State indicted Jody for arson, and filed the indictment with the Fort
Bend County District Court on February 6, 2012. (CR 11). Jody was found to be
3 an indigent defendant and, on March 19, 2012, was appointed attorney Eduardo
Cortez to represent him. (CR 13). On May 24, 2012, attorney Matthew Curl was
appointed to substitute Cortez as Defendant’s attorney. (CR 30). Mr. Curl filed a
pretrial motion requesting a Daubert/Kelly hearing on proposed expert testimony
was filed with the clerk on May 31, 2013. The motion challenged the reliability of
the Arson Investigation Evidence and expert witnesses proffered by the State to
support the arson Investigation Evidence. (CR 65). Also on May 31, 2013,
Baltazar Salazar was appointed as Defendant’s attorney. (CR 68). The record is
silent as to whether a Daubert/Kelly hearing was held.
The case against Jody Whelchel was retried on May 13, 15 and 16 and June
27, 2014. (RR I 1). On May 13, after the jurors had been empaneled and released
for the day, Jody Whelchel, by and through his attorney, invoked his spousal
privilege. (CR 319 and RR II 147). After a brief discussion about whether the
State could order Mrs. Dondee Whelchel to testify under subpoena, Judge Vacek
overruled Defendant’s motion, reasoning that while the defendant may have a
community interest in the property that is the subject matter of the arson case, so
did the defendant’s wife and, therefore, the wife fell into the victim-exception to
the spousal privilege rule. (RR III 10).
As its first witness in its case-in-chief, the State called Jody’s wife, Dondee
Whelchel to testify. She did not testify voluntarily and only testified because she
4 as subpoenaed and threatened by the State that if she did not respond to the
subpoena then a warrant for her arrest would be issued. (RR III 69-71).
According to Dondee’s testimony, Jody and his wife had been arguing on
the morning of January 18, 2012. (RR III 82). She wanted him out of the house.
(RR III 44). She further testified that when she told her husband to leave, he told
her that “he’s not leaving the home, that he would burn the fucking house down.”
(RR III 44). That morning she left to take their children to daycare and then go to
work. (RR III 46). When she arrived at work, her husband kept calling her but she
refused to take his call. (RR III 46-47). According to her testimony, Dondee
finally answered her husband’s call that morning, and they continued to argue. She
testified that conversation kept escalating, that they both got “more angry” and that
her husband “said he was going to burn the house down.” (RR III 49). She then
testified that her husband called her back later and told her “the house is on fire.”
(RR III 50). She further testified that she called the fire marshal and informed
them of her husband’s statements. (RR III 52).
Next, the State called Aldo Ramos, firefighter with Community Fire
Department and first responder to the call. (RR III 95). Firefighter Ramos testified
that he did not know what the cause of the fire was. (RR III 103). Then the State
called Kent Rammrath, who, on the day of the call, was a captain with the
Community Volunteer Fire Department and the initial fire inspector on the scene.
5 (RR III 104). Captain Rammrath testified that after inspecting the scene, he found
the fire cause or source of the fire to be undetermined. (RR III 132-134). Captain
Rammrath called in a fire investigator. (RR III 133).
Fire Marshall Matt Cornell was the State’s next witness. At the time of the
incident, Cornell was a senior fire investigator with Fort Bend County. (RR III
161). Cornell testified that, with regards to fire investigation, they follow the
National Fire Protection Standard 921. (RR III 171). Cornell testified that, based
on his visual inspection, he determined there to be two points of origin, and that
two points of origin does not necessarily mean the fire is incendiary. (RR III 181-
182). He testified that, after visually inspecting the light fixture, he determined the
fire was not started by the fixture. (RR III 184, 201). He further testified that,
based on his visual inspection, he determined that neither the wiring nor switches
caused the fire. (RR III 187-188). Based on his visual inspection, he determined
that electrical issues did not cause the fire. (RR III 138). Samples were taken from
the locations Cornell determined to be the points of origin, and the lab tests were
negative for accelerants. (RR III 191-192). Based on his visual inspection, Cornell
did not “feel the need to proceed for further testing.” (RR III 201). Based on his
visual inspection, Cornell concluded that the fire was an incendiary fire started by
Jody Whelchel “for spite and revenge.” (RR III 213).
6 Jeff Brownson was called by the State as its next witness. (RR III 255).
Brownson, a fire inspector and arson investigator with the Fort Bend County Fire
Marshall’s Office, testified that based on his visual inspection, there was no need
to test anything to prove his hypothesis because he used skilled observation while
walking around as his scientific method. (RR III 278-279). Further Brownson
testified that he used a seven-step scientific method, but he could only identify five
of the seven steps. (RR III 280). He could not explain the methodology used nor
could he explain what National Fire Protection Standard is. (RR III 282).
Finally, the State called Ramon Menchaca, a Houston firefighter who
inspected the fire on behalf of the home insurance carrier. (RR IV 5). Menchaca
testified that he is not an arson investigator. (RR IV 48). He testified that Jody had
informed him that they had been having problems with the breaker tripping the
light fixture to the light in the closet. (RR IV 37). Menchaca stated that he did not
look into this statement, because he had already completed his investigation for the
insurance company and eliminated the light fixture as a potential cause of the fire
during his visual inspection. (RR IV 37). Menchaca testified that he followed the
National Fire Protection Standard 921 best practices and collected samples for
testing. (RR IV 59-60). The samples Menchaca collected for testing included two
floor debris samples, the light fixture form the closet, the wall outlet from the
closet and an exemplar light from the laundry room. (RR IV 52). He
7 recommended the insurance company test the samples in order to find out what
happened for sure. (RR IV 51-52). The insurance company declined. (RR IV 53).
Even though Menchaca knew there was an on-going criminal investigation,
and also knew that somebody had been arrested in the case, the samples taken were
not kept. (RR IV 53).
ARGUMENT AND AUTHORITIES APPELLANT’S FIRST POINT OF ERROR (Restated)
Whether a finding of guilt in an arson case constitutes error when the evidence is legally insufficient because it does not rise to the level of scientific reliability necessitated by the use of valid scientific methodology.
The evidence is insufficient to support the jury’s finding that Jody
Whelchel committed arson.
In reviewing the sufficiency of the evidence, the court is required to view the
evidence in the light most favorable to the prosecution and determine if any rational
trier of fact could find the elements of the offense beyond a reasonable doubt.
Chambers v. State, 711 S.W.2d 240, 245 (Tex. Crim. App. 1986); Jackson v.
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2879, 62 L.Ed.2d 560 (1979); Griffin v.
State, 614 S.W.2d 155 (Tex.Crim.App. 1981).
The Supreme Court held in Jackson v. Virginia that its previous “no evidence”
test was “simply inadequate to protect against misapplications of the constitutional
8 standard of reasonable doubt” because “‘[a] mere modicum of evidence may satisfy
a ‘no evidence’ standard.’” Jackson v. Virginia, 443 U.S. at 320 (quoting Jacobellis
v. Ohio, 378 U.S. 184, 202 (1964)(Warren, C.J., dissenting)). In Brooks v. State,
323 S.W.3d 893 (Tex.Crim.App. 2010), the Texas Court of Criminal Appeals held
that the Jackson v. Virginia, 443 U.S. 307 (1979), standard for legal sufficiency is
the "only standard that a reviewing court should apply in determining whether the
evidence is sufficient to support each element of a criminal offense that the State is
required to prove beyond a reasonable doubt." Brooks, 323 S.W.3d at 912.
The question, then, is whether the evidence in this case is legally sufficient,
not whether there is some proof from which a conclusion of guilt could be drawn. If
the evidence “gives equal or nearly equal circumstantial support to a theory of guilt
and a theory of innocence of the crime charged, then a reasonable jury must
necessarily entertain a reasonable doubt.” Clark v. Procunier, 755 F.2d 394, 396 (5th
Cir. 1985). See also Weaver v. State, 96 Tex.Crim. 506, 258 S.W. 171 (1924); Texas
Employers Ins. Ass’n v. Goad, 622 S.W.2d 477, 480 (Tex. App. — Tyler 1981, no
writ); See also United States v. Moreno, 185 F.3d 465, 471 (5th Cir. 1999) cert.
denied, 528 U.S. 1095 (2000)(“While the jury is free to choose among reasonable
constructions of the evidence, a verdict cannot be affirmed if it is based on
circumstantial evidence that is as consistent with innocence as with guilt.”); United
States v. D’Amato, 39 F.3d 1249, 1256 (2nd Cir. 1994)(evidence “at least as
9 consistent with innocence as with guilt” insufficient to support a guilty
verdict)(internal quotation marks omitted). See also Draper v. United States, 358
.S. 307, 323-324 (1959)(Douglas, J., dissenting)(“The law goes far to protect the
citizen. Even suspicious acts observed by ... officers may be as consistent with
innocence as with guilt. That is not enough, for even the guilty may not be
implicated on suspicion alone.”). The due process clauses of the U. S. and Texas
Constitutions protect a defendant against conviction “except upon proof
beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged.” In re Winship, 297 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d
368 (1970). See also, Richardson v. State, 879 S.W.2d 874 (Tex. Crim. App.
1993).
Under Jackson and Chambers, supra, the appellate court must
consider all of the evidence presented at trial, even if it was contradicted
by other evidence. The State is required to affirmatively prove each element
of the offense. Gold v. State, 736 S.W.2d 685 (Tex. Crim. App. 1987). If the
evidence, when viewed in the light most favorable to the verdict or
judgment, gives equal or nearly equal support to the theories of innocence
and guilt, the evidence is insufficient. Clark v. Procunier, 755 F.2d 394, 396
(5th Cir. 1985).
10 An appellate court reviews the legal sufficiency of the evidence “by
considering all of the evidence in the light most favorable to the prosecution” to
determine whether any “rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 318-19 (1979). Evidence is legally insufficient when the “only proper
verdict” is acquittal. Tibbs v. Florida, 457 U.S. 31, 41-42 (1982). The appellate
court’s role is that of a due process safeguard, ensuring only the rationality of the
trier of fact’s finding of the essential elements of the offense beyond a reasonable
doubt. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).
Deference is given to the responsibility of the fact finder to fairly resolve conflicts
in testimony, to weigh evidence, and to draw reasonable inferences from the facts.
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). But the
appellate court must “ensure that the evidence presented actually supports a
conclusion that the defendant committed” the criminal offense of which he is
accused. Id.
In this case, the sufficiency of the evidence requires the evidence be
scientifically valid. The State had the burden of proving beyond a reasonable doubt
that appellant intentionally committed arson. (CR I 371). In order to convict
appellant of arson, the State had the burden to prove beyond a reasonable doubt that,
Jody Whelchel started a fire with the intent to destroy or damage any building,
11 habitation, or vehicle knowing that: (1) is insured against damage or destruction, (2)
is subject to a mortgage or other security interest, or (3) has located within it property
belonging to another.
The Court of Criminal Appeal has also acknowledged the great weight
jurors place on scientific evidence, and that jurors tend to defer to an expert’s
credentials rather than content when the scientific opinions offered are complex:
studies have shown that juror reliance on an expert's credentials is directly proportional to the complexity of the information represented: the more complex the information, the more the jury looks to the background, experience, and status of the expert himself rather than to the content of his testimony.
Coble v. State, 330 S.W.3d 253, 281 (Tex. Crim. App. 2010).
The Supreme Court acknowledged the double-edged character of scientific
evidence which can both illuminate and confuse:
Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it.
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595, 113 S. Ct. 2786.
While the Texas rules of evidence encourage the consideration of relevant
and reliable scientific evidence pursuant to Rule 702, courts have also noted that
judges are not well equipped to correctly evaluate difficult issues of science.
See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 599 (1993) (Rehnquist,
C.J., and Stevens, J., concurring and dissenting) (Daubert factors involve
12 consideration of issues “far afield from the expertise of judges”); Rosen v. Ciba-
Geigy Corp., 78 F.3d 316, 318 (7th Cir. 1996) (“it is a daunting task for judges
who do not have a scientific background (and most do not) to decide whether a
scientist's testimony is real science or not”); Kelly v. State, 824 S.W.2d 568, 576
(Tex. Crim. App. 1992) (Clinton, J., dissenting) (expressing concern that
incorrect decision admitting unreliable science will result in injustice and that
Texas criminal justice system lacks procedures to meaningfully test scientific
evidence).
The record reveals that each of the State’s experts utilized his own experiences
to make a visual inspection of the situs to form his hypothesis that the fire was
incendiary. Samples were available for testing, yet no samples were tested. The
State’s experts made a conscientious and deliberate decision to formalize their
hypotheses as the official finding that the fire was incendiary, without the support
or verification of any scientific testing conducted to either prove or disprove the
hypotheses. Without scientific testing, the hypothesis is, at best, an un-validated
subjective theory. Without valid, objective scientific testing of the evidence, the
evidence is insufficient and cannot sustain a conviction.
APPELLANT’S SECOND POINT OF ERROR (Restated)
Whether a wife can be forced to testify against her husband under the victim’s exception to the spousal privilege rule when the damaged property in question is their joint property, thereby rendering the trial 13 court’s denial of the defendant’s Motion to Invoke Spousal Privilege error.
Texas Rules of Appellate Procedure 44.2(b) provides that any non-constitutional
error that does not affect substantial rights must be disregarded. A substantial right
is affected when the error had a substantial and injurious effect or influence in
determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim.
App. 1997). In assessing the likelihood that the jury's decision was adversely
affected by the error, the Court considers everything in the record, including any
testimony or physical evidence admitted for the jury's consideration, the nature of
the evidence supporting the verdict, and the character of the alleged error and how
it might be considered in connection with other evidence in the case. Motilla v.
State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). The Court may also consider
the jury instructions, the State's theory, any defensive theories, closing arguments,
voir dire, and whether the State emphasized the error. Id.
The spousal privilege rule has two parts, the first part deals with
communications to the spouse which were intended to be kept private, and the
second part is a privilege for the spouse not to be called as a witness at all. Weaver
v. State, 855 S.W.2d 116, 119-20 (Tex. App.-Houston [14th Dist.] 1993). Texas
Rules of Evidence 504(a), provides in pertinent part:
14 (a) Confidential communication privilege.
(1) Definition. A communication is confidential if it is made privately by any
person to the person's spouse and it is not intended for disclosure to any other
person.
(2) Rule of privilege. A person, whether or not a party, or the guardian or
representative of an incompetent or deceased person, has a privilege during their
marriage and afterwards to refuse to disclose and to prevent another from
disclosing a confidential communication made to the person's spouse while they
were married.
An exception to the rule exists when the spouse is a victim of the defendant.
In the instant matter, the State asserts that the wife (Dondee Whelchel) is the
husband’s (Jody Whelchel) victim because the house that he was is alleged to have
started a fire in belonged to Dondee. (CR 11). The State forced Dondee to testify
against her will by issuing a subpoena, and threatened Dondee that if she did not
respond to the subpoena then a warrant for her arrest would be issued. (RR III 70-
71). She testified that the house was their joint property (RR III 74). She further
testified that on two instances that morning, during an argument, Jody told her that
he was going to burn the house down (RR III 44, 49).
15 Dondee’s forced testimony harmed her husband, Jody Whelcehel, because it
was the only evidence provided by the State in its attempt to establish “intent” to
commit arson. Without Dondee’s forced testimony, the State would not have met
its burden. As such, the trial court’s denial of the defendant’s Motion to Invoke
Spousal Privilege constituted error, and that error had a substantial and injurious
effect or influence in determining the jury's verdict.
CONCLUSION
Appellant respectfully urges this Court to hold that the evidence is insufficient
to support the jury’s verdict of guilt and overturn the conviction. In the alternate,
Appellant respectfully urges this Court to hold that the trial court erred when it
denied Jody Whelchel’s Motion to Invoke Spousal Privilege and remand the case to
the lower court for action consistent with this holding.
Respectfully Submitted,
Zell Wright Law Offices, PLLC
By: _/s/ Dawn Zell Wright________ Dawn Zell Wright State Bar No. 24033498 812 Barrett Street Richmond, Texas 77469 Tel: (832) 361-3291 Fax: (888) 897-3001 Email: zellwright@zwlaw.us
16 CERTIFICATE OF SERVICE
On July 28, 2015, Appellant has faxed a copy of the foregoing instrument to
counsel for the State of Texas at:
John Harrity Fort Bend County District Attorney’s Office 301 Jackson Street Richmond, Texas 77469-3108 Fax: (281) 238-3366
_/s/ Dawn Zell Wright_____ Dawn Zell Wright Attorney for Jody Whelchel SBN 24033498 812 Barrett Street Richmond, Texas 77469 Tel: (832) 361-3291 Fax: (888) 897-3001 Email: zellwright@zwlaw.us