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
18