Roy Lee Wells, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: December 4, 2017
• Docket: 06-17-00180-CR
• Status: Published

Opinion

ACCEPTED 06-17-00180-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 12/4/2017 8:54 AM DEBBIE AUTREY CLERK

TN THE

SIXTH COURT OF APPEAIS FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS OF TEXAS 12/4/2017 8:54:25 AM DEBBIE AUTREY NO. 06-17-00180-CR Clerk

ROY LEE VüELLS, JR. Appe 1 I ant

v

THE STATE OF TEXAS Appellee

ON APPEAL FROM THE 19TH JUDICIAL D]STR]CT COURT OF MCLENNAN COUNTY TR]AL COURT NO. 2076-7203_C7

BRIEF OF APPELLANT

John M. Hurley Attorney at Law 427 N. 38th Street Vüaco, Texas 1671-0 Telephone: (254 ) 753-616]- Facsimile i (254) 11,4-2564 j mhurleyl Gyahoo . com State Bar No: 10311100 Attorney for Appel-lant December 4, 2011 TN THE S]XTH COURT OF APPEALS OF TEXAS NO . 0 6- 17 - 001B0 -CR

ROY LEE WELLS, JR. \ Appe 1l- ant \J S V s s THE STATE OF TEXAS, S Appellee N J

NAD{ES OF ALL THE PARTIES (Rule 38.1(a), T.R.A.P.) Appe I I ant Roy Lee Wells, Jr.

Appell-ant's Attorney at Trial Michel Simer 3715 Bel-l-mead Drive Vüaco, Texas 1 67 05

Appellant's Attorney on Appeal: John M. Hurley 427 N.3Bth Street Vüaco, Texas 1 61IA

Appellee State of Texas

Attorneys for the Stat,e of Texas: Hillary LaBorde Christi Hunting Horse As st. . Crim. District Attys. 2I9 N. 6th Street Suite 200 Vüaco, Texas 1 61 0L

Complainant Siana Negash

fl TABLE OF CONTENTS

NAMES OF ALL THE PARTIES .11

TABLE OF CONTENTS. l- l_ l_

rNDEX OF AUTHORITIES. .avr v STATEMENT OF THE CASE. 1

TSSUES PRESENTED.

Issue No. 1

Vühetherthe trial- court incorrectly overruled Appellant's objection that the State's question and t.he police of ficer's anshler \^/ere impermissible comment.s on Appell-ant' s right to remai-n silent after he had been arrested and Mirandized? (4 R.R. It7-118). .1

Issue No. 2

Whether the State failed to prove beyond a reasonable doubt an essential el-ement of the offense of aggravated kidnappitg, namely t.hat the alleged vict.im \^/as secreted or \^¡as held in a place where she was not likely to be found? 5 R.R. I24). .1

STATEMENT OF FACTS 3

SUMMARY OF THE ARGUMENT 4

ARGUMENT . 6

PRAYER. 76

CERTIFICATE OF SERVICE. T1

CERT I FT CATE OF VüORD COUNT . .18

lil IIIDEX OF AUTHORITIES

Cases

Bowen v State , 37 4 S . TÍ. 3d 427 (Tex . Crim. App . 2OL2l 16

Brimage v. State, 7Lg S.VÍ. 2d 466 (Tex. Crim. App 1994) . .L4

Hooper v . State , 2L4 S .IÍ. 3d 9 (Tex .

,Jackson v. Virginia , 443 U.S. 307 (1979) .13

Lucio v. State 351 S.W. 3d 878 (Tex. Crim. App 2OLLl .L4 NeaI v . State , 256 S .It. 3d 264 (Tex . Crim. App . 2008) . .10 Roberson v. State, 100 S .W. 3d 36 (Tex. App. - IÍaco 2002, pet. ref'd). I Salinas v. State, 369 S.w. 3d L76 (Tex. Crím. App 2OL2l . 8

Smith v. State 522 S.It. 3d 628 (Tex. App Houston [14th Dist.l 2OLll . . 8, 10

Snowden v. State, 353 S.It. 3d 815 (Tex. Crim. App 2OLLI . 9, 11

I[aIl v. State L84 s.Iü. 3d 730(Tex. Crim. App. 2006). 9

Whitehead v. State, 437 S. vÍ. 3d 547 (Tex. App Texarkana, 2OL4, pet. ref' d) .10

lv Statutes and Ru1es Texas Ru1es of Appellate Procedure, RuIe 44.2 (a). I Texas Pena1 Code, S20 . 01 . L4

Texas PenaL Code, S20.O4. 1 I L4 ]SSUE NUMBER ONE

Vühether the trial court incorrect.ly overrul-ed Appellant's objection that the State's question and the police of f icer's ansh/er \^/ere

impermissible comments on Appell-ant's right to remai-n silent after he had been arrested and Mirandized? (4 R.R. L\7-118). ]SSUE NUMBER TVüO

Vühether the State failed to prove beyond a

reasonable doubt an essential el-ement of the offense of aggravated kidnappitg, namely that the alleged vict.im ü¡as secreted or was held in a

place where she r,¡¡as not likely to be found? (5 R.R. I24) .

STATEMENT OF THE CASE

On August 3, 2016 a Mclennan County Grand

Jury indicted Roy Lee Vfells, Jr. on the f irst degree felony charge of aqgravated kidnappitg, a

violation of Texas Penal Code S20.04. (C.R. 5) On July 5, 2011 a Mclennan County Grand Jury

handed up a "true bill of superceding indictment" which added a third degree felony charge of attempted sexual assault (Count II) . (C.R. 22-23) A j ury trial- commenced July 18 , 2071 . ( 3 R. R. )

The jury found Wells guilty on both counts. (C .R. 57 , 5B ). As Appellant had el-ected the Court to assess punishment, a pre-sentence report \iras ordered and on September It, 2017 a hearing

on punishment v/as held. The Court sentenced Vrlells t.o 15 years confj-nement on Count. I (C.R. 69-10) , and 10 years confinement on Count II (c.R . 1I-1 4) . Appellant fil-ed Notj-ce of Appeal on September Lr, 2011. (C.R. 75). The tri-al court.'s certification of Defendant's right of appeal is found at page 11

of the Clerk's Record.

There \^/as no Motion for New Trial-.

2 STATEMENT OF FACTS

Siana Negash testified (through an Amharic speaking interpreter) that she came t.o America in 2074 as a refugee from Eritrea (Ethiopia) . Vüith

no other resources she rel-ied on agencies and a church shel-ter for housing and other necessities. (4 R. R. 126-L2B) .

She met Mr. Wel-ls at, the Presbyterian Shel-ter in Fort Vüorth where he also resi-ded at times. Eventual l y the two be came invol-ved in a

relationship with each other. (4 R.R. 130-I32) .

She said t.hat. he hurt her on t.hree occasi-ons and that he had raped her. (4 R.R. L41-1,52) . As pertains to the case at bar, Siana Neqash stated that Vüel-l-s had placed her in a rented Cadillac in Fort Worth and drove to Vüaco. She

said he attempt.ed to have sex with her, and when she refused, he hit her with a belt. She thought she was having a heart attack so he drove t.o

Baylor Scott and Vühite Hospital in Vüaco where she received medical care and eventually police \^Iere

call-ed to j-nvestigate. Mr. Wel-ls r^/as arrested at the hospital. (4 R.R. L62-112). Appellant did not testify (5 R.R. 11-78) .

SUMMARY OF THE ARGUMENT

fn Appel-lant's first issue he addresses the State's quest.ioning of Vüaco Police Officer Lyle Smith who had responded to the hospital and remained with Appellant while police and hospital staf f j-ntervj-ewed Siana Negash. Smith h/as t.here for one purpose/ to make sure that Wel-l-s did not.

leave. Upon questioning by the State , Officer

Smith testified that once Wel-1s had been placed under arrest. and \^/as Mírandized that Vrlell-s no longer wanted to talk about anything. (4 R.R

I1-l). Appellant contends that the State's questions and Smith ans\^/ers were comments on

Vüell-s' Fifth Amendment right. to remain sifent after his arrest. and h/ere calcul-ated to prejudice Wells in the jury's view j-n so much as being

4 silent includes the failure of the accused t.o deny or cont.est the charges at the time he was

arrested. Appel-lant did not testify. Therefore, he had a high level of constj-tutional protection under the Fifth Amendment, to not have his pre-tria1 post-arrest., post Miranda sil-ence used as substantive evidence of his guilt against him at trial. In his second issue Appel-l-ant suggests that the evidence \,\¡as 1ega11y insufficient to sustain a conviction for aggravated kidnapping (Count I) beyond a reasonable doubt that the alleged victim hras secreted or hias hel-d in a place where she was

not likely to be found an essent.ial- element. of the of fense. Appel-l-ant points to Siana Negash' s O\^/n testimony where she admits that Vüells insisted that medical tests be done when Negash exhibited heart attack sympLoms . (4 R. R. 17 7- L96) .

5 ARGUMENT

Issue Number One Restated The Court erroneously overrul-ed Appellant's correct objection to the State/s quest.j-on and Of ficer's Lyle Smith's anshler that \^Iere comments

on Appell-ant.' s post-arrest, post.-Míranda silence: (4 R.R. 7I1-118). Q: Was he Mirandized at some point? A: He \^¡as Mírandi- zed. Q: And af ter that. h¡as any further information gathered from the Defendant? A: No. He didn't want t.o t.alk about anythì-ng .

To defense counsef's proper objection Lhe

prosecutor replied: "My point l_s just that he

hTAS Mirandized and not.hing else was gotten. " Appellant contends that t.he Fifth Amendment,

to the Const.itution forbids prosecutors from making that point. According to Officer Smith, he and Vfells had been talking, but that stopped

6 when Vfells hras arrested and read his Miranda Rights which include the right to be sil-ent. Appellant contends that police testimony about his silence after being arrest.ed and read his Miranda warnings vj-ol-ated his Fifth Amendment

right t.o be silent and \^/as cal-cul-ated to prejudice the jury against him who must have taken Appellant's silence as agreement with the charges for which he had been arrested, because an innocent person woul-d have spoken out t.o at l-east deny the charge when he \^/as arrested. The Court overruled defense counsel-'s objection instead of sustainíng the objection and directing the jury to disregard the improper question and ansh/er which might have cured the harm, but that didn't happen. Appellant did not testify at this trial-. Pre- trial- he h/as si-lent once he hras arrested and received hj-s Miranda Vüarnings " Therefore, his silence before trial is deserving of a hiqh level-

7 of protection provided by the Fifth Amendment See

Salinas v. State , 369 S.Iü. 3d L76,L78 (Tex. Crim. App. 2012l . Appellant's pre-trial, post. arrest, post Miranda silence vúas used by the State at his trial- as substantive evidence of his guilt' and

not for impeachment because he did not testify at his trial . Therefore, t.he Court's error j-n

overrulíng defense counsel-'s object was

constitutional- error that must. l-ead to reversal- unl-ess the Court of Appeals finds beyond a reasonable doubt that the error \^Ias harmless.

T.R.A.P. 44.2 (a). Smith v. State I 522 S.rÍ. 3d

628 (Tex. App Houston [14th Dist.l 2OL7 r D. p. h. ) . ( Prosecutor' s comment violatJ-ng Appellant' s privilege aqainst self-incrimination \^¡as of constitutional magnitude invokì-ng T . R. A. P .

44.2 (a) analysis. ) See also, Roberson v. State 100 S.w. 3d 36 , 43'44 (Tex. App. - Iüaco 2OO2 ,

pet. ref' d) ( State' s improper comment on

8 Defendant's failure t.o testify was error of constitutional magnitude ) .

HARM AI{AÏ.YSIS

The Court of Appeals must reverse the judgment unless it concl-udes beyond a reasonabl-e doubt that the error did not contri-bute to the Defendant' s conviction or punishment.. Snowden v. State, 353 S.It. 3d 815, 818 (Tex. Crim. App 2011). The Court of Appeals must calcufate as

nearly AS possible the probable J-mpact. of the error l-n light of the record as a whol-e TÍa].L v. State , L84 S .IV. 3d 7 30 , 7 46 (Tex . Crim. App 2006) .

The Court of Appeals considers facLors such as the nature of the error, whether the State emphasized t.he error, the probable implications of the error and the weight the jury likely would have assigned to the error. See Snowden v. State, 353 S.W. 3d at 822; Smith v. State, 522

9 S.W. 3d 628, 637-638 (Tex. App. - Houston [14tn Dist.l 20L7, n.p.h.) If the reviewing CourL finds a reasonable likelihood that the error materially affected the jury's delíberations, the trial court's error is not harmless beyond a reasonable doubt. See Neal v. State , 256 S .Iû 3d 264 , 284 (Tex . Crim. App

2008) .

1. Nature and Emptrasis of the Error The error violates the constitutional- right. against a Defendant's post-arrest, post-Miranda silence being considered as evidence of his gui1t. The trial court overruled Appell-ant's objection to the quest.ion and ans\^/er, thereby conveying to the jury that the jury coul-d consider the question and answer. Smith v. State , 522 S.Iü. 3d at 637 . This factor weighs in f avor of f inding the error t.o be harmful . See

Ittritehead v. State, 437 S.TÍ. 3d 546,553 (Tex. App. Texarkana 20L4 pet. ref 'd) . Moreover, t.he

10 State emphasized the error and magnified the harm

caused by the error by the prosecutor's ans\^/er to defense counsel's objectj-on: "My point is just that he vras Mirandized and nothing else \^ias

gott,en" (4 R. R. IIl ) bringing Vüe11s' silence .

to the jury's at.t.entj-on agaj-n before the Court signaled to the jury the silence could be

considered by them because the Court. overruled def ense counsel' s ob j ect j-on .

2. ProbabLe Implications of Error and

IÍeight Under t.he third and fourth factors discussed l-n Snowden, t.he Court. of Appeals considers the probable implication of the error and weight the jury likely would have placed on it. See

Snowden , 353 S.Iv. 3d at 822. Jury note #2 shows

that the jury r^/as considering finding Appell-ant guilty of the l-esser included offense of unfawful- restraint upon which they had been charged (C.n. 53), and not convicting him of first degree

il aggravated kidnapping (see jury note #2 at C.R

6I- "In the event that aggravated kidnapping is not proven but unfawful- restraint is, do the same

venue restrictions apply?") Appellant conLends

t.hat human nature expects an accused to deny an accusation when it is made and when he is arrested. In the case at bar the jury h/as noL

instructed not to consider Appellant's post- arrest., post-Mj-randa silence as evidence when the court overrul-ed Appelf ant's objectj-on. The Court effectively told the jury that the silence could be considered as evidence. The record as a whole including the State's emphasis on t.he question and ans\^rer and t.he jury's uncertainty of Appellant's guilt of aggravated kidnapping AS

shown by jury note #2 establ-ishes a reasonabl-e

likelihood that the error materially affected the jury's deliberations. Therefore, the trial court's error is not harmless beyond a reasonable doubt. Appellant requests the Court of Appeals to

t2 reverse the judgments as to both counts and

remand the case for a ne\^/ trial .

ISSUE NUMBER TWO RESTATED

The evidence hras insufficient t.o prove that Appellant had secreted or hel-d Negash in a place where she r^/as not likely to be found as required to establish the offense of agqravated kidnappíng. ( 5 R. R. I24) . In det.ermining whether the evj-dence is 1egal1y sufficient to support a conviction, a reviewing court must. consider all of the evidence in the light most favorable to the verdict and determine whether, based on the evidence and reasonabl-e inferences t.herefrom, a rational- fact finder could have found the essential elements of the crime beyond a reasonable doubt. ilackson v. Virginia, 443 u. s. 307 , 318-19 (L9791 ; Hooper v. State, 2L4 S.Iü. 3d I , 13 (Tex. Crim" App . 2OO7') . This "familiar standard gives full pfay to the responsibifity of the trier of fact fairly to resol-ve confl-icts in the testimony, to weigh the evldence, and t.o draw reasonable inferences from basic facts to ultimate facls . " Jackson 443 U. S . at 319 . "Each fact need not point directly and independently to the guilt of the Appellantr âs long as the cumul-atj-ve force of all the j-ncríminating circumstances is sufficient to support the convj-ction. " Hooper , 2L4 S.Iv. 3d at 13.

13 Lucio v. State , 351 S.W. 3d 8'18, 894 (Tex. Crim. App . zOtL, I cert den'd. , L32 St. Ct. 27L2 |

183 L.Ed. 2d 7t(20L21 .

The State \^ias required to prove beyond a reasonabl-e doubt that Appellant, in addition to the other essentj-al elemenLs of 520.04 aggravat.ed kidnappirg, by secreting or holding her in a

place where she !úas not likely to be found..." (C.R. 22) , one of the hrays "abduct.ion" is accomplished under 520.01,.(2) . Under this indictment the State hras required to prove that the restraint \^ras completed and that Appellant evj-denced a specific intent to prevent l-iberation by secreting or hiding Sj-ana Negash in a place where she \^/as not likely to be found. See

Brimage v . State , 918 S .It. 2d 466 | 47 5-7 6 (Tex .

Crim. App. 1994) .

Viewed in the light most favorabl-e to the jury's verdict., Appellant contends t.hat the evj-dence shows that Appellant placed Negash in

t4 t.he back seat (not the trunk) of a rented Cadillac, and drove from Fort Vüorth to Waco wlth a stop at a rest. stop or truck stopr âssaul-ted her, then insisted on taking her to a hospital for medical care and diagnostic tests. Appel-lant suggests that the secretion component of the offense of aggravated kidnappi.g, as charged, \^¡as

not satisfied beyond a reasonabl-e doubt. Sj-ana

Negash was in the passenger compartment. of a

vehicl-e traveling on public highways or stopped at a public rest. stop or truck stop and \^/as taken to a hospital-. Appellant suggests that it \^¡as at least as likely as it hras not likely that she

woul-d have been f ound.

For these reasons the evidence was

insufficient to show that Appellant is guilty of aggravated kidnapping. The conviction on Count I must be reversed and a judgment of acquittal entered on Count I aggravated kidnapping. I f the Court. of Appeals determines that the evidence

l5 ís sufficient to support. the lesser j-ncluded offense of unlawful- restraint, then it may reform the conviction from aggravated kidnapping to unlawful- restraint and remand the case for a ne\^/

punishment hearing. Bowen v. State, 374 S.TÍ. 3d 428 (Tex. Crim. App . 20t2l . PRAYER

For the reasons stated in this brief, Appell-ant prays f or the relief requested herein. Respectfully submitted,

-Ln Jo M. Hurley State Bar No. 103111-00 421 N. 38th Street Waco, TX 161I0 Tel: 753-616I (.254 ) Fax : (254) 114-2564 jmhurleylßyahoo. com Attorney for Appellant Roy Lee Wel1s, Jr.

t6 CERTIFICATE OF SERVICE

I certify that a true and correct copy of Appel-lant's brief h¡as served el-ectronically on the 4th day of December 2011 on the Office of the Mclennan Count.y Criminal District Attorney, Attn: ADA Sterling Harmon, 279 N. 6th Street, Suite 200, üIaco, TX 1 61 0t .

,Lm. J hn M. ur I v

t7 CERTIE'ICATE OF TTORD COI'NT

I certify that AppellanL's brief contains 3,352 words, Microsoft Vüord 20L0.

\,¿- nHüifev ¿( ql" M