Wayne Edward Lindsey v. State
01-15-00143-CR
| Tex. App. | Sep 8, 2015Background
- Appellant Wayne Edward Lindsey was convicted by a Harris County jury of aggravated assault for a 2014 incident in which a struggle over a handgun with Dequalin Backstrom resulted in Backstrom being shot and permanently injured.
- The indictment included an enhancement (prior felony conviction) and alleged use/exhibition of a firearm during the offense and immediate flight; jury found guilt and assessed punishment at 20 years after enhancement found true.
- Facts: Backstrom brought a car for diagnosis, argued with Lindsey over a $50 fee, struck Lindsey, attempted to leave without paying, Lindsey pointed a gun, struck Backstrom with the gun, they struggled over the gun, it discharged and wounded Backstrom.
- At trial defense sought to cross-examine the complainant’s mother about Backstrom’s 14 prior felony convictions; the trial court denied that request under Rule 609 balancing.
- Defense requested a jury instruction that deadly force to prevent robbery or to stop a fleeing robber could justify the shooting; the trial court refused to give that defensive instruction.
- During punishment argument the prosecutor made multiple remarks implying Lindsey’s lack of remorse/contrition; defense objected and moved for mistrial multiple times, but the court sustained objections and admonished the jury to disregard, yet denied mistrial motions.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Lindsey) | Held (trial-court action) |
|---|---|---|---|
| Whether the jury should have heard evidence of Backstrom’s 14 prior felonies | Evidence of prior felonies is either irrelevant or too prejudicial to admit under Rule 609 | Cross-examination of the mother about Backstrom’s felony record was admissible to impeach and rebut sympathetic character evidence | Trial court excluded inquiry into the 14 prior convictions (defense objection overruled) |
| Whether jury should have been instructed on right to use deadly force to prevent robbery/fleeing robber | No instruction required because facts did not raise the statutory defense to deadly force | Statutory defense to deadly force (to prevent robbery or to stop fleeing robber) was raised by the evidence and required an instruction | Trial court refused to submit deadly-force/robbery defensive instruction to the jury |
| Whether prosecutor’s punishment argument improperly commented on defendant’s failure to testify and required a mistrial | Prosecutor argued lack of remorse as relevant to punishment (state maintained argument was permissible) | Repeated remarks about lack of remorse were direct comments on failure to testify, violating Fifth Amendment and art. 38.08, requiring mistrial or reversal | Court sustained objections and admonished jurors to disregard but denied defense motions for mistrial |
| Remedy requested | Not applicable | Reversal and new trial on guilt/penalty (new trial on punishment if only the Fifth Amendment issue) | Defense appealed trial rulings to the First Court of Appeals (this brief challenges those trial rulings) |
Key Cases Cited
- Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992) (sets Rule 609 balancing factors for admitting prior convictions to impeach)
- Brown v. State, 955 S.W.2d 276 (Tex. Crim. App. 1997) (trial court must charge any defensive issue raised by the evidence)
- Sparks v. State, 177 S.W.3d 127 (Tex. App.—Houston [1st Dist.] 2005) (reversal for failure to give deadly-force instruction defending against robbery where evidence supported it)
- Johnson v. State, 611 S.W.2d 649 (Tex. Crim. App. 1981) (comments on defendant’s failure to testify often incur prejudice not cured by admonition)
- Montoya v. State, 744 S.W.2d 15 (Tex. Crim. App. 1987) (prohibition on prosecutorial comments about defendant’s silence and standards for reversible error)
- Swallow v. State, 829 S.W.2d 223 (Tex. Crim. App. 1992) (jury-viewpoint standard for evaluating prosecutorial statements about defendant)