Wayne Edward Lindsey v. State ( 2015 )


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  •                                                                                       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
    FILED IN
    1st COURT OF APPEALS
    HOUSTON, TEXAS
    IN THE COURT OF APPEALS             9/8/2015 12:41:04 PM
    FOR THE FIRST JUDICIAL             CHRISTOPHER A. PRINE
    Clerk
    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
    IDENTITY OF PARTIES AND COUNSEL
    Pursuant to TEX.R.APP.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
    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
    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?
    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?
    Point 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................................................................................................................ 13
    Certificate of Compliance and Service………………………………………….14-15
    iv
    INDEX AND AUTHORITY                                                PAGE
    Black v. State, 1995 Tex. App. LEXIS 1624 (Tex. App. – Houston [1st 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 [1st 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 [1st 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
    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
    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:
    1
    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).
    Further 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.
    2
    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 trial court 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?
    WHETHERTHE 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.”
    3
    (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
    and attempted 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 responed: “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
    4
    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
    he 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
    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).
    5
    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
    6
    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.”
    7
    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
    [1st 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 [1st 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
    8
    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 COURT: 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,
    9
    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?
    THE 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
    10
    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
    11
    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
    [1st 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.
    12
    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
    trial on punishment.
    Respectfully submitted,
    /s/ Douglas M. Durham
    DOUGLAS M. DURHAM
    State Bar Number: 06278450
    2800 Post Oak Boulevard Suite 4100
    Houston, Texas 77056
    Telephone (832) 390 2252
    ATTORNEY FOR APPELLANT
    13
    CERTIFICATE OF COMPLIANCE
    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.
    Douglas M. Durham
    /s/
    DOUGLAS M. DURHAM
    14
    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
    DOUGLAS M. DURHAM
    15