Kelly Ray Tadlock v. State

• Court: Court of Appeals of Texas
• Decided: July 13, 2015
• Docket: 06-15-00049-CR
• Status: Published

Opinion

ACCEPTED 06-15-00049-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 7/10/2015 9:48:29 PM DEBBIE AUTREY CLERK

NO. 06-15-00049-CR

IN THE COURT OF APPEALS, 6th DISTRICT FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS TEXARKANA, TEXAS --------------------------------------------- 7/13/2015 8:08:00 AM KELLY RAY TADLOCK, DEBBIE AUTREY Appellant, Clerk

VS.

THE STATE OF TEXAS, Appellee, --------------------------------------------- Appealed from No. 1424225 the 8th District Court Hopkins County, Texas --------------------------------------------- BRIEF OF DEFENDANT ---------------------------------------------

FOR THE DEFENDANT FRANK R. HUGHES Attorney at Law P. O. Box 8145 Greenville, Texas 75404 State Bar No.: 10236500

ORAL ARGUMENT IS NOT REQUESTED NAMES OF ALL PARTIES

Appellant certifies, pursuant to T.R.C.P.38.1(a), that the following is a

complete list of the names of all the parties and all persons otherwise interested in

the outcome of this case:

APPELLANT: KELLY RAY TADLOCK

APPELLANT'S COUNSEL: FRANK R. HUGHES of Greenville, Texas;

FRANK R. HUGHES P. O. BOX 8145 Greenville, TEXAS 75404 903.456.2703

APPELLEE: THE STATE OF TEXAS

APPELLEE'S COUNSEL:

Will Ramsay 110 Main St. Sulphur Springs, TX 75482 Phone: (903) 885-0641

2 SUBJECT INDEX

Page

NAMES OF ALL PARTIES .................................. 2

REQUEST FOR ORAL ARGUMENT ............................. Title

SUBJECT INDEX ………………………………………. 3, 4

INDEX OF AUTHORITIES ................................... 5,6

STATEMENT OF THE CASE ................................. 7,8

ISSUES PRESENTED/ POINTS OF ERROR NOS. 1-2............. 9

STATEMENT OF FACTS..................................... 10

SUMMARY OF ARGUMENT.................................... 11

ARGUMENT AND AUTHORITIES IN SUPPORT OF

POINT OF ERROR NO. 1 ............................. 11-16

POINT OF ERROR NO. 2............................. 17-25

PRAYER ................................................ 26 3 CERTIFICATE OF SERVICE ................................ 26, 27

CERTIFICATE OF WORD COUNT 27

4 INDEX OF AUTHORITIES

CASES CITED:

Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); 11

Casey v. State, 924 S.W.2d 946, 949 (Tex.Crim.App.1996) 18, 24

Collier v. State, 959 S.W.2d 621, 625 (Tex.Crim.App.1997) 18

Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.-Texarkana 2010, pet. ref'd) 11 (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007))

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) 12 (citing Jackson, 443 U.S. at 318–19)

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) 12

Moore v. State, 999 S.W.2d 385, 395 (Tex.Crim.App.1999), cert. denied, 530 U.S. 1216, 120 S.Ct. 2220, 147 L.Ed.2d 252 (2000) 19

Reeves v. State, 06-00-00103; 46 S.W.3d 397 (Tex.App.—Texarkana 2001) 17

White v. State, 06-13-00110-CR 11

5 STATUTES

TEX. CODE CRIM. PROC. ANN. art. 46.02, § 1A(a) (Vernon Supp. 2001) 17

TEX. CODE CRIM. PROC. ANN. art. 46.02, §1A(b) (Vernon Supp. 2001) 17

TEX. CODE CRIM. PROC.ANN. art. 42.07(2) (Vernon Supp. 2001); 18

TEX. CODE CRIM. PROC. ANN. art. 46.02, § 2(b) (Vernon 1979) 18

6 NO. 06-15-00049-CR

IN THE COURT OF APPEALS, 6th DISTRICT TEXARKANA, TEXAS ---------------------------------------------

KELLY RAY TADLOCK, Appellant,

THE STATE OF TEXAS, Appellee,

--------------------------------------------- Appealed from No. 1424225 the 8th District Court Hopkins County, Texas --------------------------------------------- BRIEF OF DEFENDANT -----------------------------------------

TO THE HONORABLE JUSTICES OF THE SIXTH COURT OF APPEALS:

COMES NOW, KELLY RAY TADLOCK, Defendant, through his attorney

and files this Brief in his Appeal. Pursuant to the Texas Rules of Appellate

Procedure, references to the record, which consists of the Court's Record, in 1 7 volume and the Reporter's Record, in 10 Volumes. They will be noted in

parentheses as (Cr_) if in the Court's Record: (Rr_) in the Reporter's Record;

STATEMENT OF THE CASE

On 08/01/2014, the Defendant, Kelly Ray Tadlock was arrested, charged and

indicted twice for INDECENCY W/CHILD SEXUAL CONTACT, each alleging

separate individual sisters, referred to as CW A and CW S, in Sulphur Springs,

Hopkins County, Texas.(Cr10) On 17 December 2014 the Defendant entered a

plea of guilty, after admonitions, and a PSI was ordered. (RrV4) A problem

developed when the Defendant apparently told the PSI officer that he was not

guilty of the charged offense (RrV5p6) that he was ―scared of a jury, and felt

pressured by his trial attorney, and didn’t know how he could prove his

innocence.‖ The Judge instructed the PSI officer to cease the interview. On 31

December 2014 after questioning by the Judge, the court refused to accept a plea of

guilty.

8 Jury was waived, and trial to the Court began on February 3, 2015 (RrV7p7) the

Defendant was found guilty on one charge, involving CW A but not guilty on the

second CW S, a second PSI was ordered, the Defendant was then sentenced to

twenty years. Appellant was taken into custody. Notice of Appeal was filed on

March 3, 2015(Ctr133). The Court's Record was timely filed; a Request for

Extension of Time to file Brief, was filed; and granted making the brief due 6 July

2015; this brief is being filed on 10 July 2015, along with a Motion for Late

Filing, from the Court's errors in the conduct of the trial the defendant appeals.

9 ISSUES PRESENTED-POINTS OF ERROR

ISSUE 1: THE VERDICT IS AGAINST THE GREAT WEIGHT OF THE

EVIDENCE

ISSUE 2: THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

FAILED TO ORDER SUA SPONTE A PSYCHIATRIC EXAMINATION OF THE

DEFENDANT TO DETERMINE IF THE ASSORTMENT OF DRUGS THE

DEFENDANT WAS TAKING AFFECTED HIS ABILITY TO HAVE

SUFFICIENT MENS REA IN A SEXUAL CONTACT CASE and WHETHER HE

WAS COMPETENT TO PROCEED FOLLOWING THE REJECTION OF THE

INITIAL PLEA OF GUILTY AND CANCELLATION OF THE PRE-SENTENCE

INVESTIGATION REPORT

10 STATEMENT OF FACTS

The Defendant is a step uncle to the CWS and her sister CWA (RrV7p43).

On July 15, 2014 the girl’s mother left them with him, to babysit while she went to

work; when she returned she was told by both CWS and younger sister CWA that

the defendant had been talking about sex to both sisters; and had touched them

both through their clothes, the day before (RrV7p53,52p22-16). Mom called the

Defendant who denied touching even talking about sex to them; (RrV7p). Mom

took the girls to her mother’s house where they repeated their allegations to Cathy

Tadlock, the Grand mother, and Carter Tadlock, stepfather of Mom and Father of

Defendant (RrV7p57L22-25),. The family was uncertain as to what to do next, S,

the youngest Complaining Witness told them to call the police (RrV), which they

did, she also testified she got to watch TV at her Grand Mother’s.-TV shows her

Mom wouldn’t permit. Officer Jason Reneau was the responding officer, took a

cursory statement and left a form for Mom to complete, telling her that she would

be contacted (RrV7). She was contacted and arrangements were made to have the 11 girls interviewed at the closest CAC, in Texarkana, following the meeting with a

fully qualified professional- the decision was made to file the instant charges and

arrest the Defendant. He was taken into custody where he remained until he was

released on a PR bond following a plea that was later abandoned.

SUMMARY OF THE ARGUMENT

Defendant's complaints are of the Sufficiency of the Evidence and the Trial

Court relying on his own training to make a decision concerning the Defendant’s

mental acuity, rather than order a psychiatric examination.

POINT OF ERROR NO. 1- THE VERDICT IS AGAINST THE GREAT

WEIGHT OF THE EVIDENCE

ARGUMENT AND AUTHORITIES As this court said recently in White v. State, 06-13-00110-CR

―In reviewing the legal sufficiency of the evidence, we consider all the evidence in

the light most favorable to the trier of fact's verdict to determine whether any

rational jury could have found the essential elements of the offense beyond a 12 reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)

(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305

S.W.3d 859, 863 (Tex. App.-Texarkana 2010, pet. ref'd) (citing Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). We examine legal sufficiency in

light of the Brooks opinion, while giving deference to the responsibility of the trier

of fact "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19).

APPLYING THE LAW TO THE FACTS:

Defendant had been a very good trusted friend of the family during the

forced absence of the Step Father James York, (RrV7L12,13). The mother of both

complaining witnesses. Kristina York, Mom, had known him since she was 16,

and considered him like a brother, which he was, a step brother with a close

relationship. (RrV7p68L12-20); he had been at the house for two nights before the

first telling of the A story, Mom and girls drove him home on the day following the 13 incident (RrV7p77L18-24) and it was only after this short trip that A told her story

for the first time. He was a frequent visitor to the family home of the girls and

their Mom, Kristina York (RrV7p71L1-17). To the extent that he had his laundry

washed there. (RrV7p48L1-10). Mom had left the girls with him on other

occasions with no apparent improper activity. (RrV7p73L23-24).

On 15 July 2014, Mom came home, took Defendant to his home, and upon

returning to her home CWS and CWA told her that Uncle Kelly had begun talking

about sex with them. (RrV7p50L21-23). CW A told her Mom that Uncle Kelly

was talking about it, and also about Mom and her husband and Uncle Kelly and his

girlfriend, her Aunt Kay. And that he touched her vagina and made her touch his

penis, even pulling her hand over to him and forcing a touching. And that it had

occurred on 14 July 2014.

CW S, followed her sister’s lead and added that it had happened a month

before, too. (RrV7p51,52). S and A began to argue over what and when it had

happened and when while outcry Mom was talking to them about it. When asked 14 on cross examination Mom explained that the girls said Defendant talked about

her, her husband James York and also about Defendant and his former partner,

Aunt Kay . (RrV7p80L1-7); Mom’s testimony,

·4· · · · · Q.· ·And was that about marriage, or was that ·5· ·about sex? ·6· · · · · A.· ·They didn't say.··That's all I got out of ·7· ·them.··I didn't ask them any further.

Mom then called the Defendant and asked about what had happened, he said

instantly, that he did not do anything (RrV7p58L15, 16). Mom called her mother

about it and arranged to take the girls over to the house her mother shared with the

father of the Defendant. (RrV7p57). She, accompanied by the girls, drove over to

Defendant’s apartment shortly after the conversation. They delivered a blanket

Defendant had left at her home, along with retrieving some dishes he had taken to

his place after a July 4th celebration. This happened AFTER the outcry to Mom.

(RrV7p59L1-4).

Defendant told Mom that he had talked about marriage with the CW S. 15 There was no discussion of touching, and Mom indicated she wasn’t sure what she

was going to do about calling the police. . (RrV7p59L21-25, p60L1-12). Mom

then took girls and went to her Mother’s house where the story was retold to Carter

and Cathy Tadlock, father of defendant, step grandfather of the CWA and his wife,

mother of CW’s Mom. Following the tell, there was conversation of what to do

next and CW A said call the police. .(RrV7p60L16-24).

The Defendant denied that he had ever touched either of the complainants

inappropriately (RrV8p43L7-8). Under cross examination he explained the

presence of a morning erection, and its being noticed by CW A (RrV8p48, 49) that

he took her off his lap, and told her that he should not discuss boy, girl parts and

sex with them, that was better discussed by their Mom. And that he and CW S had

talked with him about marriage. His testimony was consistent with his explanation

to his brother. (RrV7p114L11-19 ).

SUMMARY POINT OF ERROR 1

The girls were arguing over what happened during the original outcry given to 16 themother; when asked about what else was discussed, Mom was unsure saying that the conversation may have been about sex or marriage, she doesn’t know, because that was all she could get out of them. The family was unsure how to proceed is proven by their actions. They apparently waited for several hours before even contacting the police. The girls had much time to get their stories straight between the initial tell to their Mom, during which they argued, then to the natural Grandmother and Step-Grandfather. And finally to the CAC interviewer. CW S couldn’t remember at trial, resulting in a finding of not guilty by the court, however; CW A, was again calm and had no trouble in reciting her story as if coached or well rehearsed. A simple story told by a young girl. One need only read or watch ―The Crucible‖ to understand. NO complaints by anyone before. He had been offered and agreed to a very good, fair ―deal‖; so beneficial to him that it remained to be seen if Judge would have even approved it: But, at the time it was very fair; his lawyer agreed he should take it. Yet he didn’t.

17 ISSUE 2 THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO ORDER SUA SPONTE A PSYCHIATRIC EXAMINATION OF THE DEFENDANT TO DETERMINE IF THE ASSORTMENT OF DRUGS HE WAS TAKING ON A CONSTANT BASIS AFFECTED HIS ABILITY TO HAVE SUFFICIENT MENS REA IN A SEXUAL CONTACT CASE and WHETHER HE WAS COMPETENT TO PROCEED FOLLOWING THE REJECTION OF THE CONTINUATION OF THE PRE-SENTENCE INVESTIGATION REPORT

As this court said in, Reeves v. State, 06-00-00103; 46 S.W.3d 397

(Tex.App.—Texarkana 2001)

“A person is incompetent to stand trial if she does not have (1)

sufficient present ability to consult with her lawyer with a reasonable degree

of rational understanding; or (2) a rational as well as factual understanding

of the proceedings against her. TEX. CODE CRIM. PROC. ANN. art. 46.02,

§ 1A(a) (Vernon Supp. 2001). A defendant is presumed to be legally

competent unless proved incompetent by a preponderance of the evidence.

TEX. CODE CRIM. PROC. ANN. art. 46.02, §1A(b) (Vernon Supp. 2001). 18 Further, a defendant must be competent at the time of her

sentencing. TEX. CODE CRIM. PROC.ANN. art. 42.07(2) (Vernon Supp.

2001); Casey v. State, 924 S.W.2d 946, 949 (Tex.Crim.App.1996). During

any part of the proceeding, evidence of a defendant's incompetency may

be brought to the trial court's attention from any source. TEX. CODE CRIM.

PROC. ANN. art. 46.02, § 2(b) (Vernon 1979). When evidence of

incompetency during the proceeding is produced, the court must conduct

an inquiry, referred to as a "Section 2(b) inquiry" (outside the presence of a

jury) to determine whether there is evidence to support a finding of

incompetency to stand trial. Id. Such an inquiry is required only if the

evidence brought to the trial court's attention is such as to raise a "bona

fide" doubt in the trial court's mind as to the defendant's competency.

Collier v. State, 959 S.W.2d 621, 625 (Tex.Crim.App.1997). In general, a

"bona fide" doubt is raised only if the evidence indicates recent severe

mental illness, at least moderate mental retardation, or truly bizarre acts by 19 the defendant. Id. Prior hospitalization and treatment for depression do not

per se warrant the trial court's holding of a competency hearing. Moore v.

State, 999 S.W.2d 385, 395 (Tex.Crim.App.1999), cert. denied, 530 U.S.

1216, 120 S.Ct. 2220, 147 L.Ed.2d 252 (2000). When the trial court holds a

Section 2(b) hearing and any evidence (i.e., a quantity more than none or a

scintilla) is presented that could rationally lead to a determination of

incompetency, and regardless of evidence showing competency, the trial

court must impanel a separate jury to determine the defendant's

competency to stand trial. TEX. CODE CRIM. PROC. ANN. art. 46.02, §

4(a) (Vernon Supp. 2001); Moore, 999 S.W.2d at 393.”

APPLYING FACTS TO THE LAW:

As the trial court stated, from his vantage point on the bench, the Defendant

had consulted with his attorney at the time of entering his initial plea of guilty.

20 And the Defendant pled guilty after considerable admonitions, from the court.

(RrV4p).

Then as the Defendant, purportedly stated, that he was not really guilty that

he didn’t want to go to prison, felt pressured by his attorney, and didn’t see how he

could prove his innocence: these statements were made at the pre-sentence

interview the very next morning after the plea. (RrV4p5) Absolutely begs the

question, how could he see how he could prove it with the mood of law

enforcement and the public today?

On 31 December 2014, the court had been informed that the Defendant

again was intending to enter a plea of guilty (RrV4p) . When questioned by the

Judge about his prior change of heart, he responded that he was conflicted, and the

court said

·6· · But I simply can't accept a plea of guilty from somebody who maintains that they're only ·7· ·doing it to avoid the possibility of adverse ·8· ·consequences. ·9· · · · · · · · · · THE DEFENDANT:··I'm not just -- I'm 21 10· ·not guilty -- I -- I believe that if the girls say 11· ·that I violated them in some way, then I must have. 12· · · · · · · · · · THE COURT:··Okay.··And I want you to 13· ·know I appreciate that.··I don't know what's going on 14· ·in your mind.··That is insufficient for me to support 15· ·a plea of guilty.··Okay?··That's insufficient.··And 16· ·so what I'm going to do is set the matter for trial, 17· ·and we'll be set for trial on February 5 -- no -- 18· ·Monday, February 2. (RrV4p16)

At the time of this exchange the court was aware of the Defendant’s legal drug usage, the questioning about illegal drugs at the CWA family home was denied; and again made the decision that he announced at the time of the original plea, he was a mental health care professional, and · · · · · · · THE COURT:··Okay.··Do you need a 24· ·chair? 25· · · · · · · · · · THE DEFENDANT:··(Nods.) Page 13 ·1· · · · · · · · · · THE COURT:··Would you please get him a ·2· ·chair. ·3· · · · · · · · · · (Defendant seated in chair at bench.) ·4· · · · · · · · · · MR. LOYD:··Judge, you understand that ·5· ·one of the -- and I'm not intending to interrupt, but 22 ·6· ·one of the medications that he is on is obviously for ·7· ·anxiety. ·8· · · · · · · · · · THE COURT:··Which medication? ·9· · · · · · · · · · MR. LOYD:··And it appears to me 10· ·that -- 11· · · · · · · · · · THE DEFENDANT:··I'm overwhelmingly 12· ·anxiety right now. 13· · · · · · · · · · THE COURT:··Say it again? 14· · · · · · · · · · THE DEFENDANT:··My anxiety level is 15· ·through the roof right now, Your Honor. 16· · · · · · · · · · THE COURT:··Okay. 17· · · · · · · · · · THE DEFENDANT:··In my heart of 18· ·hearts -- 19· · · · · · · · · · MR. LOYD:··Wait. 20· · · · · · · · · · THE DEFENDANT:··-- I believe that. THE COURT:··Well, Mr. Tadlock, 22· ·here's -- you've told me -- and I've -- I began to 23· ·see you shake and tremble.··I got concerned about 24· ·your safety standing, which is why I got you a chair. 25· ·And I've been told that you're on -- what do you take Page 14 ·1· ·for anxiety? ·2· · · · · · · · · · THE DEFENDANT:··I'm on hydroxyzine ·3· ·right now three times a day. ·4· · · · · · · · · · THE COURT:··Is that a generic form of ·5· ·what?··I'm not familiar with that. ·6· · · · · · · · · · THE DEFENDANT:··I'm not sure what the 23 ·7· ·generic form is. ·8· · · · · · · · · · THE COURT:··But it's an antianxiety ·9· ·medication, much like Clonazepam? 10· · · · · · · · · · THE DEFENDANT:··Yeah, something like 11· ·that. 12· · · · · · · · · · THE COURT:··Okay.··And you take that 13· ·on a regular basis, not as needed? 14· · · · · · · · · · THE DEFENDANT:··Three times a day. 15· · · · · · · · · · THE COURT:··Okay. 16· · · · · · · · · · THE DEFENDANT:··Cymbalta three times a 17· ·day for acute chronic depression. 18· · · · · · · · · · THE COURT:··Right. 19· · · · · · · · · · THE DEFENDANT:··High blood pressure 20· ·pill, cholesterol pill; gabapentin, which is a 21· ·generic; Neurontin for my nervous system; Ambien to 22· ·help me sleep. 23· · · · · · · · · · THE COURT:··Right. 24· · · · · · · · · · THE DEFENDANT:··Amitriptyline as an 25· ·antianxiety and sleep aid; Symbicort for my breathing Page 15 ·1· ·because I've had asthma, emphysema, COPD, and chronic ·2· ·bronchitis. ·3· · · · · · · · · · THE COURT:··Okay.··Well, again -- and ·4· ·I'll make the same statement, having worked in the 24 ·5· ·field for a long time, I don't see anything about ·6· ·your mental status that would render you what the law ·7· ·would call incompetent to stand trial.··There's not ·8· ·even the mere suggestion.··It's never been suggested ·9· ·to me, and it's clear that a person can be on a great 10· ·deal of medication and still participate in their 11· ·defense, which we need.

This Court in Reeves, infra, said, “We review a trial court's decision

that the evidence at a Section 2(b) hearing did not raise the issue for

submission to a jury by viewing the evidence in the light most favorable to

the party with the burden of securing the finding, disregarding contrary

evidence and inferences. Casey, 924 S.W.2d at 948 n. 4. Viewing the

above evidence in the light most favorable to Reeves' position, we

conclude that the trial court did not err in failing to conduct a competency

hearing. There was no testimony regarding Reeves' present ability to

consult with her lawyer with a reasonable degree of rational understanding 25 or whether she had a rational as well as factual understanding of the

proceedings against her. There was evidence regarding her drug addiction

and a suicide attempt, but this evidence did not reflect on her ability to

understand or participate in the proceedings on that day.”

In the instant case, the Defendant obviously did not understand or participate

in the decision making process with his attorney. This was the second attempt by

the Defendant to enter a plea of guilty, after discussing his options with his

attorney. The Court should have Sua Sponte ordered a mental examination of the

Defendant to determine how great the influence of the plethora of medications he

was taking was having on the Defendant’s ability to understand and participate in

the proceeding. Or fully understand or remember what did happen? He says if the

girls say I did, I must have?

PRAYER

Wherefore, Defendant prays this court reverse the judgment of the trial court

26 and order the case dismissed or grant a new trial, and for such other relief to which

he may be entitled.

Respectfully submitted,

___/s/_Frank R. Hughes_ FRANK R. HUGHES Attorney at Law P. O. Box 8145 Greenville, Texas 75404 (903)456-2703 State Bar No.: 10236500 ATTORNEY FOR DEFENDANT

CERTIFICATE OF SERVICE

I hereby certify that on July 8, 2015, a true and correct copy of the foregoing

document was mailed all counsel of record, set out below.

/s/Frank R. Hughes FRANK R. HUGHES

Will Ramsay, District Attorney 8th Judicial District 110 Main St. Sulphur Springs, TX 75482 27 wramsay@hopkinscountytx.org

Certificate of number of words There are 3922 words in this document

/s/Frank R Hughes Frank R. Hughes