                                                                                      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
