Case Information
*0 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 12/4/2017 8:54:25 AM DEBBIE AUTREY Clerk *1 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 OF TEXAS NO. 06-17-00180-CR ROY LEE VüELLS, JR.
Appe 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 Law N. 38th Street
Vüaco, Texas 1671-0
Telephone: (254 ) 753-616]-
Facsimile i (254) 11,4-2564
j mhurleyl Gyahoo . com Bar No: 10311100
Attorney for Appel-lant
December 4,
TN THE S]XTH COURT OF APPEALS OF TEXAS NO . [0] 6- [1] [7] - [0] 0 1 B [0] -CR \
ROY LEE WELLS, JR. \ J
Appe 1l- ant
S s
V
s
THE STATE OF TEXAS, S Appellee N J
NAD{ES OF ALL THE PARTIES (Rule 38.1(a), T.R.A.P.) Roy Lee Wells, Jr. Appe I I ant Appell-ant's Attorney at Trial Michel Simer
3715 Bel-l-mead Drive Vüaco, Texas [1] [67] 05 John M. Hurley Appellant's Attorney Appeal:
427 N.3Bth Street Vüaco, Texas [1] 61IA of Texas Appellee
Attorneys for the Stat,e Texas: Hillary LaBorde
Christi Hunting Horse As st. . Crim. District Attys. 2I9 N. 6th Street Suite Vüaco, Texas 0L Siana Negash Complainant
fl *3 TABLE OF CONTENTS NAMES OF ALL THE PARTIES .11
TABLE OF CONTENTS. l- l_ l_ .avr v
rNDEX OF AUTHORITIES.
STATEMENT OF THE CASE. [1]
TSSUES PRESENTED.
Issue No. [1] Vühether the trial- court incorrectly overruled Appellant's objection that the State's question t.he police of ficer's anshler \^/ere impermissible comment.s Appell-ant' s right to remai-n silent after he had been arrested Mirandized? (4 R.R. It7-118). .1 Issue No. [2]
Whether the State failed to prove a reasonable doubt an essential el-ement offense of aggravated kidnappitg, namely t.hat the alleged vict.im \^/as secreted or \^¡as held in a place where she was not likely be found? 5 R.R. I24). .1 STATEMENT OF FACTS [3]
SUMMARY OF THE ARGUMENT [4]
ARGUMENT . [6]
PRAYER.
CERTIFICATE OF SERVICE. T1 .18
CERT I FT CATE OF VüORD COUNT
lil *4 IIIDEX OF AUTHORITIES Cases
Bowen App Crim. . (Tex 427 3d . TÍ. S 4 [37] , State v . 2OL2l
16 Brimage v. State, 7Lg S.VÍ. 2d 466 (Tex. Crim. App .L4
1994) .
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, S.It. 3d 815 (Tex. Crim. App 9, 11
2OLLI
I[aIl v. L84 s.Iü. 3d 730(Tex. Crim. App. 2006).
Whitehead v. State, S. vÍ. 3d 547 (Tex. App
Texarkana, 2OL4, pet. ref' .10 d)
lv
Statutes Ru1es
Texas Ru1es Appellate Procedure, RuIe 44.2 (a). I
Texas Pena1 Code, S20 . L4
Texas PenaL Code, S20.O4. L4 I
]SSUE NUMBER ONE
Vühether the trial court incorrect.ly overrul-ed Appellant's objection that the State's question 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 failed to prove a reasonable doubt an essential el-ement of the
offense of aggravated kidnappitg, namely that
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, a Mclennan County Grand Jury indicted Roy Lee Vfells, Jr. f irst
degree felony charge 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] , [5] B ) . As Appellant had el-ected
Court assess punishment, a pre-sentence report
\iras ordered on September It, 2017 a hearing
on punishment v/as held. The Court sentenced
Vrlells t.o years confj-nement Count. I (C.R.
69-10) , years confinement on Count II
(c.R . 1I-1 4)
Appellant fil-ed Notj-ce Appeal on September Lr, 2011. (C.R. 75).
The tri-al court.'s certification of Defendant's right of appeal is found page 11
of the Clerk's Record.
There \^/as no Motion for New Trial-.
STATEMENT OF FACTS (through an Amharic Siana Negash testified speaking interpreter) that she came t.o America in 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, Presbyterian Shel-ter in Fort Vüorth where he also resi-ded 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 t.hree occasi-ons and (4 R.R. L41-1,52)
that he had raped her. 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 have sex with her, when
she refused, he hit her with a belt. She thought
she was having a heart attack so he drove t.o
Baylor Scott 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 State's quest.ioning 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 , Officer
Smith testified that once Wel-1s had been placed
under arrest. \^/as Mírandized that Vrlell-s no (4 R.R
longer wanted to talk about anything.
I1-l). Appellant contends that the State's
questions Smith ans\^/ers were comments on
Vüell-s' Fifth Amendment right. to remain sifent
after his arrest. and h/ere calcul-ated prejudice
Wells in the jury's view j-n so much as being
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 evidence \,\¡as 1ega11y insufficient to sustain a conviction for aggravated kidnapping (Count I) 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. 7-
L96)
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 Appell-ant.' s post-arrest, post.-Míranda silence:
(4 R.R. 7I1-118).
Q: Was he Mirandized 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 just that he prosecutor replied: "My point l_s
hTAS Mirandized 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 Vfells had been talking, but that stopped
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 \^/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 improper
question ansh/er which might have cured
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 a hiqh level-
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 State 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 reversal-
unl-ess the Court of Appeals finds a
reasonable doubt that the error \^Ias harmless.
T.R.A.P. 44.2 (a). Smith v. I 522 S.rÍ. 3d
628 (Tex. App Houston [14th Dist.l ( Prosecutor' s comment violatJ-ng
2OL7 r D. p. h. ) .
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 S.w. 3d , 43'44 (Tex. App. - Iüaco 2OO2 ,
pet. ref' d) ( State' s improper comment on
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 a reasonabl-e
doubt that the error did not contri-bute 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
error l-n light of the record as a whol-e TÍa].L v. , L84 S .IV. 3d , [7] 46 (Tex . Crim. App
2006)
The Court Appeals considers facLors such as nature of the error, whether the State
emphasized t.he error, the probable implications
of the error the weight the jury likely would
have assigned to the error. See Snowden v. 353 S.W. 3d 822; Smith v. State, 522
State,
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
jury's delíberations, the trial court's error is
not harmless a reasonable doubt. See Neal
v. State , 256 S .Iû 3d 264 , 284 (Tex . Crim. App
2008)
1. Nature 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 question and answer. Smith v. , S.Iü. 3d 637 . This factor weighs in
f avor f inding the error t.o be harmful . See
Ittritehead v. State, S.TÍ. 3d 546,553 (Tex. Texarkana 20L4 pet. ref 'd) . Moreover, t.he
App. 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 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 weight
jury likely would have placed on it. See
Snowden , 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 unfawful-
restraint upon which they had been charged (C.n.
53), not convicting him of first degree
il
aggravated kidnapping (see jury note #2 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 deny an
accusation when it is made 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 t.he question 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
jury's deliberations. Therefore, the trial
court's error is not harmless a reasonable
doubt. Appellant requests Court Appeals to
t2
reverse the judgments as to both counts and
remand the case for a ne\^/ trial .
ISSUE NUMBER TWO RESTATED t.o prove that
The evidence hras insufficient 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 the evidence and reasonabl-e inferences t.herefrom, a rational- fact finder could have found the essential elements of the crime 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, weigh the evldence, t.o draw reasonable inferences from basic facts to ultimate facls . " Jackson U. S . at . "Each fact need not point directly independently to the guilt of Appellantr âs long as the cumul-atj-ve force of all the j-ncríminating circumstances is sufficient to support convj-ction. " Hooper , 2L4 S.Iv. 3d 13. *19 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 a reasonabl-e doubt that Appellant, in addition to
the other essentj-al elemenLs 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 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 to be found. See
where she \^/as not likely
Brimage v . , S .It. 2d | 47 5-7 6 (Tex .
Crim. App. 1994)
Viewed in the light most favorabl-e the jury's verdict., Appellant contends t.hat
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 Waco wlth stop at a rest. stop or truck stopr âssaul-ted
a
her, then insisted on taking her to a hospital
for medical care and diagnostic tests. Appel-lant
suggests that the secretion component of
offense of aggravated kidnappi.g, as charged, \^¡as
not satisfied a reasonabl-e doubt. Sj-ana
Negash was in the passenger compartment. of a
vehicl-e traveling on public highways or stopped a public rest. stop or truck stop \^/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 a judgment of acquittal
entered Count I aggravated kidnapping. I f Court. Appeals determines that the evidence
l5
ís sufficient to support. the lesser j-ncluded
offense unlawful- restraint, then it may reform
the conviction from aggravated kidnapping to
unlawful- restraint remand the case for a ne\^/
punishment hearing. Bowen v. State, S.TÍ. 3d
428 (Tex. Crim. App . 20t2l
PRAYER For reasons stated in this brief, Appell-ant prays f or the relief requested herein.
Respectfully submitted, -Ln Jo M. Hurley Bar No. 103111-00 N. 38th Street Waco, TX 161I0 Tel: (.254 ) 753-616I Fax : (254) 114-2564 jmhurleylßyahoo. com Attorney for Appellant Roy Lee Wel1s, Jr. t6
CERTIFICATE OF SERVICE I certify that a true correct copy of Appel-lant's brief h¡as served el-ectronically on
the 4th day December 2011 the Office of
Mclennan Count.y Criminal District Attorney, Attn:
ADA Sterling Harmon, 279 N. 6th Street, Suite 200,
üIaco, TX 0t
,Lm. v I J hn M. ur t7
CERTIE'ICATE OF TTORD COI'NT certify that AppellanL's brief contains 3,352 I Microsoft Vüord 20L0.
words,
\,¿- n ¿( ql" M Hüifev