                                                                                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
