Case Information
*0 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 7/13/2015 8:08:00 AM DEBBIE AUTREY Clerk *1 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, 6 th DISTRICT TEXARKANA, TEXAS --------------------------------------------- KELLY RAY TADLOCK, Appellant, 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
*2 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
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 ARGUMENT AND AUTHORITIES IN SUPPORT OF
POINT OF ERROR NO. 2............................. 17-25 PRAYER ................................................ 26
CERTIFICATE OF SERVICE ................................ 26, 27
CERTIFICATE OF WORD COUNT 27
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
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
NO. 06-15-00049-CR IN THE COURT OF APPEALS, 6 th DISTRICT TEXARKANA, TEXAS --------------------------------------------- KELLY RAY TADLOCK, Appellant, VS.
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
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.
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.
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
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
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
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
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
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 4 th celebration. This happened AFTER the outcry to Mom.
(RrV7p59L1-4).
Defendant told Mom that he had talked about marriage with the CW S.
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
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.
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).
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
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.
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
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
·one of the medications that he is on is obviously
for
·anxiety. · · · · · · · · · THE COURT:··Which medication?
· · · · · · · · · MR. LOYD:··And it appears to me
·that -- · · · · · · · · · THE DEFENDANT:··I'm overwhelmingly
·anxiety right now.
· · · · · · · · · THE COURT:··Say it again?
· · · · · · · · · THE DEFENDANT:··My anxiety level
is
·through the roof right now, Your Honor. · · · · · · · · · THE COURT:··Okay. · · · · · · · · · THE DEFENDANT:··In my heart of ·hearts -- · · · · · · · · · MR. LOYD:··Wait.
· · · · · · · · · 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
·generic form is.
· · · · · · · · · THE COURT:··But it's an
antianxiety ·medication, much like Clonazepam?
· · · · · · · · · THE DEFENDANT:··Yeah, something
like ·that.
· · · · · · · · · THE COURT:··Okay.··And you take
that
·on a regular basis, not as needed?
· · · · · · · · · THE DEFENDANT:··Three times a day.
· · · · · · · · · THE COURT:··Okay. · · · · · · · · · THE DEFENDANT:··Cymbalta three times a ·day for acute chronic depression. · · · · · · · · · THE COURT:··Right. · · · · · · · · · THE DEFENDANT:··High blood pressure ·pill, cholesterol pill; gabapentin, which is a ·generic; Neurontin for my nervous system; Ambien to ·help me sleep. · · · · · · · · · THE COURT:··Right. · · · · · · · · · THE DEFENDANT:··Amitriptyline as an ·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
·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
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
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 8 th Judicial District
110 Main St.
Sulphur Springs, TX 75482
wramsay@hopkinscountytx.org
Certificate of number of words There are 3922 words in this document
/s/Frank R Hughes
Frank R. Hughes