Case Information
*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 9/8/2015 12:41:04 PM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-15-00143-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 9/8/2015 12:41:04 PM CHRISTOPHER PRINE CLERK NO. 01-15-00143-CR IN THE COURT OF APPEALS FOR THE FIRST JUDICIAL DISTRICT OF TEXAS HOUSTON, TEXAS WAYNE EDWARD LINDSEY VS.
THE STATE OF TEXAS Appealed from the District Court of Harris County, Texas 262nd Judicial District Cause No. 1426650 APPELLANT'S BRIEF Appellant Requests
Oral Argument
DOUGLAS M . DURHAM State Bar Number: 06278450 2800 Post Oak Boulevard Suite 4100 Houston, Texas 77056 (832) 390 2252 Telephone ATTORNEY FOR APPELLANT *2 IDENTITY OF PARTIES AND COUNSEL
Pursuant to T EX .R.A PP .P. 38.1(a), the following is a list of all interested
parties in this cause:
1. WAYNE EDWARD LINDSEY- Appellant
2. Vic Wisner – Appellant’s Trial Counsel
8431 Katy Freeway, Ste.101
Houston, Texas 77024
3. Devon Anderson - District Attorney for Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
4. Erin Epley – Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
Douglas M. Durham 5. Allan Curry, Chief Appellate Division, District
Attorney’s Office for Harris County, Texas 1201 Franklin, Suite 600
Houston, Texas 77002
/ s DOUGLAS M. DURHAM State Bar Number: 06278450 2800 Post Oak Boulevard Suite 4100 Houston, Texas 77056 (832) 390 2252 Telephone ATTORNEY FOR APPELLANT ii
TABLE OF CONTENTS Page Table of Contents ..................................................................................................... iii
Index of Authorities (Cases)....................................................................................vii
Constitutions and Statues. ...................................................................................... viii
Preliminary Statement ................................................................................................ 2
Statement Regarding Waives Oral Argument ............................................................ 3
Appellant Request Waives Oral Argument ................................................................. 3
Questions Presented…………………………………………………………………4
WHETHER THE TRIAL COURT ERRED BY PREVENTING THE JURY
FROM HEARING ABOUT DEQUALIN BACKSTROM’S PRIOR
FELONY CONVICTIONS?
WHETHER THE TRIAL COURT ERRED BY DENYING APPELLANT’S
REQUEST FOR A JURY INSTRUCTION ON THE RIGHT TO USE
DEADLY FORCE TO PREVENT DEQUALIN BACKSTROM FROM
FLEEING IMMEDIATELY AFTER COMMITTING ROBBERY?
WHETHE R THE TRIAL COURT ERRED BY FAILING TO GRANT
A MISTRIAL, DURING THE STATE'S PUNISHMENT ARGUMENT,
BASED ON THE PROSECUTOR’S REPEATED AND
INTENTIONAL COMMMENTS ON APPELLANT’S FAILURE TO
TESTIFY?
Poi nt of Error One………………………………………………………………….6
THE TRIAL COURT ERRED BY PREVENTING THE JURY FROM
HEARING ABOUT DEQUALIN BACKSTROM’S FOURTEEN PRIOR
FELONY CONVICTIONS
iii
Statement of Facts…………………………………………………………………..6
Argument and Authorities ......................................................................................... 7
Point of Error Two…………………………………………………………………8
THE TRIAL COURT ERRED BY DENYING APPELLANT’S REQUEST
FOR A JURY INSTRUCTION ON THE RIGHT TO USE DEADLY FORCE
TO PREVENT DEQUALIN BACKSTROM FROM FLEEING
IMMEDIATELY AFTER COMMITTING ROBBERY
Statement of Facts………………………………………………………………….8
Argument and Authorities ......................................................................................... 8
Point of Error Three………………………………………………………………10
THE TRIAL COURT ERRED BY FAILING TO GRANT A MISTRIAL,
DURING THE STATE'S PUNISHMENT ARGUMENT, BASED ON THE
PROSECUTOR’S REPEATED AND INTENTIONAL COMMMENTS ON
APPELLANT’S FAILURE TO TESTIFY
Statement of Facts………………………………………………………………….10
Argument and Authorities ......................................................................................... 12
Conclusion................................................................................................................ 1 3
Certificate of Compliance and Service………………………………………….1 -1 5
iv *5 INDEX AND AUTHORITY PAGE Black v. State , 1995 Tex. App. LEXIS 1624 (Tex. App. – Houston [1 st Dist.] 1995). .9
Brown v. State , 955 S.W.2d 276 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . . . 9
Johnson v. State , 611 S.W.2d 649, (Tex. Crim. App. 1981). . . . . . . . . . . . . . . . . . . . 13
Montoya v. State, 744 S.W.2d 15, 35 (Tex. Crim. App. 1987). . . . . . . . . . . . . . . . . . 12
Nolasco v. State , 1999 Tex. LEXIS 2492 (Tex. App. -Houston [1 st Dist.]1999). . . . 13
Sauceda v. State , 859 S.W.2d 469, 474 (Tex. App.-Dallas 1993, pet. ref’d).. . . . . . .12
Sparks v. State , 177 S.W.3d 127 (Tex. App.-Houston [1 st Dist.] 2005). . . . . . . . . . . . 9
Swallow v. State , 829 S.W.2d 223, 225 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . . 12
Theus v. State , 845 S.W.2d 874 (Tex. Crim. App. 1992) . . . . . . . . . . . . . . . . . . . . . . .7
v *6 CONSTITUTIONS AND STATUES PAGE U.S. CONST. AMEND. V………………………………………………….....12
TEXAS CONST. ART. I, SEC. 10……………………………………………12
TEXAS CODE OF CRIM. PRO. 38.08……………………………………….12
TEXAS PENAL CODE SECTION 22.01(a)(1-2)……………………………..2
vi *7 NO. 01-15-00143-CR IN THE COURT OF APPEALS FOR THE FIRST JUDICIAL DISTRICT OF TEXAS HOUSTON, TEXAS WAYNE EDWARD LINDSEY VS.
THE STATE OF TEXAS Appealed from the District Court of Harris County, Texas 262nd Judicial District Cause No. 1426650 APPELLANT'S BRIEF TO THE HONORABLE JUSTICES OF SAID COURT:
COMES NOW, WAYNE EDWARD LINDSEY, Appellant in the above
styled and numbered cause and would respectfully show the Court as follows:
PRELIMINARY STATEMENT This is an appeal from a felony judgment and conviction for the offense of
“Aggravated Assault” as proscribed by the TEX. PENAL CODE SEC.
22.02(a)(1) and (2).
The 180th grand jury of Harris County, Texas returned a three paragraph
indictment in Cause Number 1426650, on the 21st day of July, 2014 against the
Appellant, [omitting the formal parts] alleging in paragraph one (1) that:
“…in Harris County, Texas, WAYNE EDWARD LINDSEY , hereafter styled the
Defendant, heretofore on or about April 29, 2014, did then and there
unlawfully, recklessly cause serious bodily injury to Dequalin Backstrom,
hereinafter called the complainant, by fighting over a firearm the defendant
had produced, causing it to discharge.” (CR-I; p. 30).
Further in paragraph two (2) that:
“…at the time the defendant committed the felony offense of aggravated assault, on or about April 29, 2014, as hereinabove alleged, he used and
exhibited a deadly weapon, namely a firearm, during the commission of said
offense and during the immediate flight from said offense.” (CR-I; p. 30).
F urther in paragraph three (3) that:
“Before the commission of the offense alleged above, on March 19, 1991, in
Cause Number 0582162, in the 183rd District Court of Harris County, Texas,
the Defendant was convicted of the felony offense of Delivery of Cocaine.”
(CR-I; p. 30).
At 11:25 a.m. on February 3, 2015, trial by jury began in the 262nd District
Court of Harris County, Texas, before the visiting Judge Mike Wilkinson. (CR-I; p.
148 and RR-II; p. 1-168). At 2:15 p.m., February 5, 2015, Appellant was found
guilty by the jury. (CR-I; p. 148; and RR-IV; p. 36). The Defense entered a plea of
not true to the enhancement paragraph. (RR-V; p. An evidentiary hearing on
punishment began thereafter. (CR-V; p. 1-48). The Jury found the enhancement
paragraph true, and sentenced Appellant to 20 years in prison. (RR-V; p. 38).
On February 6, 2015, the t rial c ourt certified Appellant’s right to appeal and
Appellant filed in writing timely notice of appeal. (CR-I; p. 138-140).
STATEMENT REGARDING ORAL ARGUMENT APPELLANT REQUESTS ORAL ARGUMENT QUESTIONS PRESENTED WHETHER THE TRIAL COURT ERRED BY PREVENTING THE JURY
FROM HEARING ABOUT DEQUALIN BACKSTROM’S FOURTEEN
PRIOR FELONY CONVICTIONS?
WHETHER THE TRIAL COURT ERRED BY DENYING APPELLANT’S
REQUEST FOR A JURY INSTRUCTION ON THE RIGHT TO USE
DEADLY FORCE TO PREVENT DEQUALIN BACKSTROM FROM
FLEEING IMMEDIATELY AFTER COMMITTING ROBBERY?
WHETHER THE TRIAL COURT ERRED BY FAILING TO GRANT A
MISTRIAL, DURING THE STATE'S PUNISHMENT ARGUMENT,
BASED ON THE PROSECUTOR’S REPEATED AND INTENTIONAL
COMMMENTS ON APPELLANT’S FAILURE TO TESTIFY? ?
STATEMENT OF FACTS On April 29, 2014, Dequalin Backstrom’s black Impala was “running hot.”
(RR-III; p. 53). He took the car to get it fixed at Wayne Edward Lindsey’s residence
located at 6842 Hopper Road, Houston, Texas. (RR-III; p. 15). Wayne Edward
Lindsey (hereinafter called Lindsey ) looked at the car and identified the issue to be a
“defective water pump.” (RR-III; p. 55). Lindsey told Dequalin Backstrom
(hereinafter called Backstrom ) that his fee for diagnosing the problem was fifty
dollars ($50.00). (RR-III; p. 39-40). Lindsey and Backstrom argued over the
reasonableness of the diagnostic fee. (RR-III; p. 40). The verbal argument escalated
resulting in Backstrom (who was younger and bigger than Lindsey) striking Lindsey
in the face with his fist. (RR-III; p. 40-41 and p. 95-96). Lindsey stumbled, then
retreated into his house. (RR-III; p. 42 and p. 83). Thereafter, as Lindsey returned
from inside his house, Backstrom got into the driver’s seat of his Impala, backed up
an d attempt ed to leave without paying the diagnostic fee he owed. (RR-III; p. 43).
Lindsey pointed a hand gun at Backstrom, telling him “turn the car off and get out of
the car.” (RR-III; p. 44; p. 60; p. 80; p. 87). Lindsey angrily inquired of Backstrom:
“Where is my g—dam money?” (RR-III; p. 89). As Backstrom got out of the car,
Lindsey struck him with the gun on the top of his head causing him to fall to the
ground. (RR-III; p. 89). Lindsey again inquired about his money . (RR-III; p. 89).
Backstrom re sponed: “he did not have it.” (RR-III; p. 89). Lindsey attempted to
strike Backstrom again with the gun, but he grabbed it with his hand . (RR-III; p.
90). As Lindsey tried to pull the gun away from Backstrom it discharged striking
Backstrom . [1] (RR-III; p. 90-93). As a result of the gunshot wound, Backstrom was
hospitalized for over and month. (RR-III; p. 150). Upon discharge from the hospital
h e required long term care and currently lives at the “Windsor of Houston " nursing
home . (RR-III; p. 151). Backstrom requires a trachea to breath and other assistance,
his body paralyzed from the gun shot . (RR-III; p. 151).
POINT OF ERROR ONE THE TRIAL COURT ERRED BY PREVENTING THE JURY FROM
HEARING ABOUT DEQUALIN BACKSTROM’S FOURTEEN PRIOR
FELONY CONVICTIONS
STATEMENT OF FACTS During the State’s direct examination of the complainant’s mother the
following exchange occurred:
Q. Now, Ms. Backstrom, prior to April 29th, 2014, how was your son
physically and mentally?
A. Before the accident, my son is very strong. He's very strong, he works, he
does what he's supposed to do. He's a father. He's a father. He takes care of my
grandbaby. He's 8 years old. And he takes care of my grandbaby. He goes to work.
He's responsible. (RR-III; p. 151).
Thereafter, during cross-examination and over the State’s objection, the
Defense sought to cross examine complainant’s mother regarding her knowledge of
the fact that Dequalin Backstrom had 14 prior felony convictions that were not
*12 remote (within last seven years). (RR-III; p. 162). The trial court denied the Defense
request. (RR-III; p. 162).
ARGUMENT AND AUTHORITIES Texas Rule of Evidence 609 requires that the trial court determine whether the
probative value of admitting evidence of prior convictions outweighs its prejudicial
effect to a party. Because rule 609 is broad enough to encompass a defendant’s
impeachment of a State’s witness with a prior conviction, any proponent seeking to
introduce evidence pursuant to rule 609 has the burden of demonstrating that the
probative value of a conviction outweighs its prejudicial effect. Theus v. State , 845
S.W.2d 874, at 880 (Tex. Crim. App. 1992). Five factors are to be considered by the
court in determining whether to admit the evidence of prior felony convictions: (1)
impeachment value, (2) temporal proximity, (3) similarity, (4) probative versus
prejudicial value, and (5) importance of testimony and credibility. Theus v. State , 845
S.W.2d at 881-82.
Here, the mother’s testimony about the complainant’s being a father and
responsible person, couple with the severity of his injuries gendered a lot of
sympathy from the jury. Considering the Theus factors, preventing the Defense from
cross-examining complainant’s mother about his extensive criminal record, in order
to blunt the false impression the jury had regarding complainant’s character was an
abuse of discretion and harmful.
POINT OF ERROR TWO THE TRIAL COURT ERRED BY DENYING APPELLANT’S REQUEST
FOR A JURY INSTRUCTION ON THE RIGHT TO USE DEADLY FORCE
TO PREVENT DEQUALIN BACKSTROM FROM FLEEING
IMMEDIATELY AFTER COMMITTING ROBBERY
STATEMENT OF FACTS During the charge conference, Appellant’s trial counsel objected to the Court’s failure to include a jury instruction on the “right to use force in
defense of property, specifically defense of the offense of robbery.” (RR-IV;
p. 4-5).
ARGUMENT AND AUTHORITIES The Texas Penal Code, section 9.41 provides that a person is justified in using
deadly force to defend property under certain circumstances, as follows:
“A person is justified in using deadly force against another to protect land or tangible movable property- (1) if he would be justified in using force
against another under section 9.41; and (2) when and to the degree he
reasonably believes the force is immediately necessary: (A) to prevent
another’s imminent commission of…robbery; or (B) to prevent the other who
is fleeing immediately after committing…robbery and (3) he reasonably
believes that: (A) the land or property cannot be protected or recovered by any
other means; or (B) the use of force other than deadly force to protect or
recover the land or property would expose the actor or another to a substantial
risk of death or serious bodily injury.”
A trial court must charge the jury on any defensive issue raised by the evidence,
″regardless of its substantive character.″ Brown v. State , 955 S.W.2d 276, 279
(Tex. Crim. App. 1997). In Sparks v. State , 177 S.W.3d 127 (Tex. App.-Houston
[1 st Dist.] 2005) this Court reversed and remanded the case due to jury charge
error, where the trial court denied Appellant a jury instruction regarding his right
to use deadly force to defend his property from Aggravated Robbery, where the
physical evidence was consistent with either Appellant or opposing witness’
(Sammy) version as to who was the aggressor. This Court held the error was
harmful because it denied Appellant the opportunity of requiring the jury to find
against this defense before assessing guilt. Sparks v. State , supra. p. 135-136. See
also Black v. State , 1995 Tex. App. LEXIS 1624 (Tex. App. – Houston [1 st Dist.]
1995)[reversed for jury charge error on right use deadly force to defend property
against robbery].
Here, Backstrom arguably committed the offense of robbery by striking
Appellant in the face with his fist and attempting to flee the scene without paying
for Appellant’s services. Appellant could have reasonably believed he had a right
arm himself [asserting a mechanic’s lien on Backstrom ’s car to insure payment for
his service] and the use of force [pistol whipping] to prevent Backstrom from
fleeing. The struggle over the gun and its reckless discharge does not trump
Appellant’s right to have the jury decide on the defense of property against
robbery. The trial court’s failure to instruct the jury on Appellant's “right to use deadly
force to defend against robbery” precluded Appellant from the opportunity of
having the jury find against him on the “reasonableness” of his conduct in
using deadly force to defend against robbery and was harmful .
POINT OF ERROR THREE THE TRIAL COURT ERRED BY FAILING TO GRANT A MISTRIAL , DURING THE STATE'S PUNISHMENT ARGUMENT, BASED ON THE PROSECUTOR’S REPEATED AND INTENTIONAL COMMMENTS ON APPELLANT’S FAILURE TO TESTIFY STATEMENT OF FACTS During the State’s closing argument during punishment, over objection by the
Defense and admonishment by the Court, the prosecutor repeatedly ( total of four
times ) commented on Appellant’s failure to testify as follows:
Ms. Epley: But I would point out something else to you. In order to edge towards the lower end of punishment, wouldn't you have to exhibit remorse?
MR. WISNER: I object to this, Judge. It's an obvious comment on my client's failure to testify…
THE COU RT: In the event it's taken that way, your objection is sustained.
MR. WISNER: I' d ask the jury be instructed… THE COURT: Disregard the last statement by the prosecutor in argument, ladies and gentlemen.
MR. WISNER: Because the error can't be cured, I'd ask for a mistrial, *16 Your Honor.
THE COURT: Denied. (RR-V; p. 29).
MS. EPLEY: And that is because he is the type of person who doesn't take responsibility…
MR. WISNER: Excuse me. Judge, I have to object. The second comment on my client's failure to testify doesn't take – THE COURT: If that's what it's taken as, your objection is sustained. You're admonished -- do you have a request, also?
MR. WISNER: Yes. I'd ask that the jury be instructed to disregard the prosecutor's second –
THE COURT: Ladies and gentlemen, you're instructed – MR. WISNER: -- comment about my client's failure – THE COURT: -- to disregard the last statement by the prosecutor in argument.
MR. WISNER: Because of this conduct, Judge, I must move for a mistrial.
THE COURT: Denied. (RR-V; p. 31-32).
MS . EPLEY: Is he being contrite and apologetic? Is he being – MR. WISNER: Excuse me, Judge. Another comment on my client's failure to testify. Contrite and apologetic?
TH E COURT: Just a moment. Just a moment. Objection is sustained. Again, ladies and gentlemen, you're admonished not to pay any attention to -- disregard the last statement by the prosecutor, ladies and gentlemen.
MR. WISNER: Judge, because of the third comment on my client's 0 *17 failure to testify, I respectfully move for a mistrial.
THE COURT: Denied. (RR-V; p. 35).
MS. EPLEY: He does not feel guilty. He doesn't wish it had happened differently.
MR. WISNER: Judge, he does not feel bad, he does not feel guilty; same objection.
THE COURT: Sustained.
MR. WISNER: Ask that you instruct the jury.
THE COURT: Ladies and gentlemen, you're instructed to disregard the last statement if it was taken in the present tense.
MR. WISNER: We move for a mistrial because of a fourth comment on my client's –
THE COURT: Denied. (RR-V; p. 36).
ARGUMENT AND AUTHORITIES The defendant’s state and federal constitutional and statutory right not to be a
witness against himself prohibits the State from commenting on the defendant’s
failure to testify. See U.S. CONST. amend. V; TEX. CONST. art. I, § 10; TEX.
CODE CRIM. PROC. ANN. art. 38.08 (Vernon 1979); Montoya v. State, 744
S.W.2d 15, 35 (Tex. Crim. App. 1987); Sauceda v. State , 859 S.W.2d 469, 474
(Tex. App.-Dallas 1993, pet. ref’d). The reviewing court considers the comment
from the standpoint of the jury. Swallow v. State , 829 S.W.2d 223, 225 (Tex.
Crim. App. 1992). A direct reference to the defendant’s failure to testify has been 1
considered an error of such magnitude that its prejudicial effect was generally not
cured by an instruction to the jury. Johnson v. State , 611 S.W.2d 649, (Tex. Crim.
App. 1981); Montoya , supra. 744 S.W.2d at 37.
Here, it is difficult, if not impossible, to imagine a jury so obtuse that it
would not understand the prosecutor’s remarks about Lindsey 's failure to express
“…remorse;...failure to take responsibility;…not being contrite or apologetic;…
not feeling guilty” as direct comments on his failure to take the stand and testify
during trial. Considered in context, the challenged arguments were a direct
comment on appellant’s failure to testify. Moreover, the prosecutor made this
argument not once but four times. Therefore, the comment clearly appears to be
an intentional, rather than inadvertent, comment on appellant’s failure to testify.
This Court has recognized that “Judges, jurors, and parents instinctively mete out
the harshest penalties to offenders who will not say they are sorry for what they
have done.” Nolasco v. State , 1999 Tex. App. LEXIS 2492 (Tex. App. -Houston
[1 st Dist.] 1999). Here, the jury assessed the maximum punishment of twenty (20)
years in prison. Accordingly one cannot infer the prosecutor’s jury argument error
was harmless. 2
CONCLUSION Therefore premises considered, Appellant’s case should be reversed and
remanded for a new trial as to points of error one and two. As to point of error three a new
Douglas M. Durham trial on punishment.
Respectfully submitted, /s/
DOUGLAS M. DURHAM State Bar Number: 06278450 2800 Post Oak Boulevard Suite 4100 Houston, Texas 77056 Telephone (832) 390 2252 ATTORNEY FOR APPELLANT 3 *20 CERTIFICATE OF COMPLIANCE Douglas M. Durham
I hereby certify that pursuant to Tex. R. of App. Pro. 9(1)(3), that the number
of words in this Brief is less than 15,000 words, to wit: 3,269 words, in compliance
with Tex. R. of App. Pro. 9(i)(2)(B) on this the 4th day of September, 2015.
/s/ DOUGLAS M. DURHAM 4 *21 Douglas M. Durham
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing
Appellant's Brief was served on Assistant Criminal District Attorney by hand
delivery on this the 4th day of September, 2015. /s
DOUGLAS M. DURHAM 5
[1] Milton L. Atterberry , Appellant’s next door neighbor testified (referring to Backstrom : “the man shot himself.” (RR- III; p. 92). “He [Backstrom]wouldn’t have been shot if he [Backstrom] didn’t get [grab]the gun. (RR-III; p. 92-93). When asked whether it was a fair fist-fight, Atterberry opined that he [Backstrom] would “beat the hell out of Wayne” [Appellant]. (RR-III; p. 96).