NO. 01-14-00597-CR

IN THE COURT OF APPEALS

FOR THE FIRST DISTRICT OF TEXAS 

AT HOUSTON

JODY WAYNE WHELCHEL,

Appellant

VS.

THE STATE OF TEXAS,

Appellee

Trial Court No. 12-DCR-059468 

Appeal from the 400th Judicial District

Fort Bend County, Texas

BRIEF FOR APPELLANT

 Dawn Zell Wright

ZELL WRIGHT LAW OFFICES, PLLC

State Bar No. 24033498

 812 Barrett Street

 Richmond, Texas 77469

 Phone: (832) 701-5297

Fax: (888) 897-3001

 ATTORNEY FOR APPELLANT

ORAL ARGUMENT REQUESTED

ACCEPTED

01-14-00597-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

7/28/2015 10:32:03 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 7/28/2015 10:32:03 PM CHRISTOPHER A. PRINE Clerk
ii

STATEMENT REGARDING ORAL ARGUMENT

Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, appellant requests 

oral argument.

IDENTIFICATION OF THE PARTIES

Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all 

interested parties is provided below.

APPELLANT or CRIMINAL DEFENDANT: Mr. Jody Wayne Whelchel

DEFENSE COUNSEL AT TRIAL: Mr. Baltazar Salazar

8814 Brae Acres

Houston, Texas 77074-4108

APPELLANT’S ATTORNEYS ON APPEAL: Ms. Dawn Zell Wright

812 Barrett Street

Richmond, Texas 77469

STATE’S ATTORNEYS: Mr. John F. Healey, Jr.

District Attorney (DA)

Mr. John Harrity 

Assistant DA on appeal

Mr. Rodolfo Ramirez

Ms. Tyra Jones McCollum

Assistant DAs at trial

Fort Bend County Das Office 

301 Jackson Street

Richmond, Texas 77469

TRIAL JUDGE: The Honorable Clifford Vacek
iii

TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT............................................. ii

IDENTIFCIATION OF THE PARTIES ................................................................ ii

TABLE OF AUTHORITIES .................................................................................iv

STATEMENT OF THE CASE...............................................................................1

ISSUES PRESENTED............................................................................................2

STATEMENT OF FACTS .....................................................................................2

ARGUMENT AND AUTHORITIES .....................................................................8

APPELLANT’S FIRST POINT OF ERROR (Restated).........................................8

APPELLANT’S SECOND POINT OF ERROR (Restated)..................................13

CONCLUSION ....................................................................................................16

CERTIFICATE OF SERVICE..............................................................................17
iv

TABLE OF AUTHORITIES

CASES

Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010)...................................................... 9

Chambers v. State, 711 S.W.2d 240, 245 (Tex. Crim. App. 1986)..................................... 8

Clark v. Procunier, 755 F.2d 394, 396 (5th Cir. 1985)............................................... 10, 12

Coble v. State, 330 S.W.3d 253, 281 (Tex. Crim. App. 2010) .......................................... 14

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595, 113 S. Ct. 2786...................... 14

Draper v. United States, 358 .S. 307, 323-324 (1959)...................................................... 11

Gold v. State, 736 S.W.2d 685 (Tex. Crim. App. 1987)............................................. 11

Griffin v. State, 614 S.W.2d 155 (Tex.Crim.App. 1981) .................................................... 9

In re Winship, 297 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).......................... 11

JACKSON V. VIRGINIA,

443 U.S. 307 (1979)....................................................................................................... 12

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2879, 62 L.Ed.2d 560 (1979) ...... 8

Kelly v. State, 824 S.W.2d 568, 576 (Tex. Crim. App. 1992)............................................ 15

King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)............................................ 16

MORENO V. STATE,

755 S.W.2D 866 (TEX. CRIM. APP. 1988) ...................................................................... 12

Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).......................................... 16

Richardson v. State, 879 S.W.2d 874 (Tex. Crim. App. 1993).................................. 11

Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 318 (7th Cir. 1996) ......................................... 14

Texas Employers Ins. Ass’n v. Goad, 622 S.W.2d 477, 480 (Tex. App. — Tyler 1981, no 

writ)................................................................................................................................ 10

TIBBS V. FLORIDA,

457 U.S. 31 (1982 .......................................................................................................... 12

United States v. D’Amato, 39 F.3d 1249, 1256 (2nd Cir. 1994)................................. 10

United States v. Moreno, 185 F.3d 465, 471 (5th Cir. 1999) cert. denied, 528 U.S. 1095 

(2000)............................................................................................................................. 10

Weaver v. State, 855 S.W.2d 116, 119-20 (Tex. App.-Houston [14th Dist.] 1993)........... 17

Weaver v. State, 96 Tex.Crim. 506, 258 S.W. 171 (1924)................................................ 10
v

RULES

TEX. R. APP. P. 38.2(a)(1)(A)................................................................................. ii

TEX. R. APP. P. 39.1 ............................................................................................... ii

TEX. R. APP. P. 9.4(g)............................................................................................. ii

TEX. R. APP. P. 44.2(b)..........................................................................................11

TEX. R. Evidence 504(a).......................................................................................12
NO. 01-14-00597-CR

IN THE COURT OF APPEALS

FOR THE FIRST DISTRICT OF TEXAS

JODY WAYNE WHELCHEL,

APPELLANT

VS

THE STATE OF TEXAS,

APPELLEE

APPEAL FROM CAUSE NUMBER 12-DCR-059468

IN THE 400th JUDICIAL DISTRICT OF FORT BEND COUNTY, TEXAS

APPELLANT’S BRIEF

TO THE HONORABLE COURT OF APPEALS

This brief is filed on behalf of the Applicant, Jody Wayne Whelchel, by Dawn 

Zell Wright, his counsel.

STATEMENT OF THE CASE

Appellant was charged by indictment with arson. (CR 11). In March 2014, a

jury trial commenced (CR 254), which resulted a deadlocked jury with 11finding 
2

guilty and 1 finding not guilty. (CR 285-260). The State re-prosecuted the case and 

a second jury trial was had on May 13, 15 and 16 and June 27, 2014. (RR I 1). The

jury convicted appellant of the charged offense (CR 376) and Judge Clifford Vacek 

sentenced him to 10 years confinement in the Institutional Division of the Texas 

Department of Criminal Justice. (CR 394; RR V 6). This appeal follows.

ISSUES PRESENTED

Issue I: 

Whether a finding of guilt in an arson case constitutes error when the evidence is 

legally insufficient because it does not rise to the level of scientific reliability 

necessitated by the use of valid scientific methodology.

Issue II: 

Whether a wife can be forced to testify against her husband under the victim’s 

exception to the spousal privilege rule when the damaged property in question is 

their joint property, thereby rendering the trial court’s denial of the defendant’s 

Motion to Invoke Spousal Privilege error.

STATEMENT OF FACTS

On January 18, 2012, Jody Wayne Whelchel called 911, twice. (RR IV 72). 

His house, the home he shared with his wife and children, was on fire. (RR III 72-

73; RR III 97).
3

Five years earlier, in January 2007, Jody and Dondee, the woman he was

marrying, together decided to buy the house located at 7018 Sundance Meadows. 

(RR III 51 and 74). They had already been living together as husband and wife 

before buying the house (RR III 72), and since her credit was better than his, the 

house was bought in Dondee’s name. (RR III 73). They married that April (RR III 

74), and had two children together (RR III 31). While Dondee was the primary 

bread earner, Jody economically contributed to the household (RR III 85-87) and 

made improvements to their home. (RR III 75). 

But their marriage was failing and in 2010 Dondee filed for divorce (RR III 

33). Over the next two years, they tried working on their marriage. (RR III 33). 

On the day of the fire, though they had been arguing and she wanted him to move 

out, they were still married and still living together in the home they shared. (RR 

III 44 and 82). In addition to marriage problems, the mortgage on their house was 

being foreclosed. (RR III 77). 

At the time of the fire, they still shared a marital bed. (RR III 56). After he 

was arrested for arson, Dondee bailed her husband out of jail and they continued 

working on their marriage (RR III 78-79), but they ultimately divorced later in 

2012 (RR III 33).

The State indicted Jody for arson, and filed the indictment with the Fort 

Bend County District Court on February 6, 2012. (CR 11). Jody was found to be 
4

an indigent defendant and, on March 19, 2012, was appointed attorney Eduardo 

Cortez to represent him. (CR 13). On May 24, 2012, attorney Matthew Curl was 

appointed to substitute Cortez as Defendant’s attorney. (CR 30). Mr. Curl filed a 

pretrial motion requesting a Daubert/Kelly hearing on proposed expert testimony 

was filed with the clerk on May 31, 2013. The motion challenged the reliability of 

the Arson Investigation Evidence and expert witnesses proffered by the State to 

support the arson Investigation Evidence. (CR 65). Also on May 31, 2013, 

Baltazar Salazar was appointed as Defendant’s attorney. (CR 68). The record is 

silent as to whether a Daubert/Kelly hearing was held.

The case against Jody Whelchel was retried on May 13, 15 and 16 and June 

27, 2014. (RR I 1). On May 13, after the jurors had been empaneled and released 

for the day, Jody Whelchel, by and through his attorney, invoked his spousal 

privilege. (CR 319 and RR II 147). After a brief discussion about whether the 

State could order Mrs. Dondee Whelchel to testify under subpoena, Judge Vacek 

overruled Defendant’s motion, reasoning that while the defendant may have a 

community interest in the property that is the subject matter of the arson case, so 

did the defendant’s wife and, therefore, the wife fell into the victim-exception to 

the spousal privilege rule. (RR III 10).

As its first witness in its case-in-chief, the State called Jody’s wife, Dondee 

Whelchel to testify. She did not testify voluntarily and only testified because she 
5

as subpoenaed and threatened by the State that if she did not respond to the 

subpoena then a warrant for her arrest would be issued. (RR III 69-71).

According to Dondee’s testimony, Jody and his wife had been arguing on 

the morning of January 18, 2012. (RR III 82). She wanted him out of the house. 

(RR III 44). She further testified that when she told her husband to leave, he told 

her that “he’s not leaving the home, that he would burn the fucking house down.” 

(RR III 44). That morning she left to take their children to daycare and then go to 

work. (RR III 46). When she arrived at work, her husband kept calling her but she 

refused to take his call. (RR III 46-47). According to her testimony, Dondee 

finally answered her husband’s call that morning, and they continued to argue. She 

testified that conversation kept escalating, that they both got “more angry” and that 

her husband “said he was going to burn the house down.” (RR III 49). She then 

testified that her husband called her back later and told her “the house is on fire.” 

(RR III 50). She further testified that she called the fire marshal and informed 

them of her husband’s statements. (RR III 52).

Next, the State called Aldo Ramos, firefighter with Community Fire 

Department and first responder to the call. (RR III 95). Firefighter Ramos testified 

that he did not know what the cause of the fire was. (RR III 103). Then the State 

called Kent Rammrath, who, on the day of the call, was a captain with the 

Community Volunteer Fire Department and the initial fire inspector on the scene. 
6

(RR III 104). Captain Rammrath testified that after inspecting the scene, he found 

the fire cause or source of the fire to be undetermined. (RR III 132-134). Captain 

Rammrath called in a fire investigator. (RR III 133). 

Fire Marshall Matt Cornell was the State’s next witness. At the time of the 

incident, Cornell was a senior fire investigator with Fort Bend County. (RR III 

161). Cornell testified that, with regards to fire investigation, they follow the 

National Fire Protection Standard 921. (RR III 171). Cornell testified that, based 

on his visual inspection, he determined there to be two points of origin, and that 

two points of origin does not necessarily mean the fire is incendiary. (RR III 181-

182). He testified that, after visually inspecting the light fixture, he determined the 

fire was not started by the fixture. (RR III 184, 201). He further testified that, 

based on his visual inspection, he determined that neither the wiring nor switches 

caused the fire. (RR III 187-188). Based on his visual inspection, he determined 

that electrical issues did not cause the fire. (RR III 138). Samples were taken from 

the locations Cornell determined to be the points of origin, and the lab tests were 

negative for accelerants. (RR III 191-192). Based on his visual inspection, Cornell 

did not “feel the need to proceed for further testing.” (RR III 201). Based on his 

visual inspection, Cornell concluded that the fire was an incendiary fire started by 

Jody Whelchel “for spite and revenge.” (RR III 213).
7

Jeff Brownson was called by the State as its next witness. (RR III 255). 

Brownson, a fire inspector and arson investigator with the Fort Bend County Fire 

Marshall’s Office, testified that based on his visual inspection, there was no need 

to test anything to prove his hypothesis because he used skilled observation while 

walking around as his scientific method. (RR III 278-279). Further Brownson 

testified that he used a seven-step scientific method, but he could only identify five 

of the seven steps. (RR III 280). He could not explain the methodology used nor 

could he explain what National Fire Protection Standard is. (RR III 282).

Finally, the State called Ramon Menchaca, a Houston firefighter who 

inspected the fire on behalf of the home insurance carrier. (RR IV 5). Menchaca 

testified that he is not an arson investigator. (RR IV 48). He testified that Jody had 

informed him that they had been having problems with the breaker tripping the 

light fixture to the light in the closet. (RR IV 37). Menchaca stated that he did not 

look into this statement, because he had already completed his investigation for the 

insurance company and eliminated the light fixture as a potential cause of the fire 

during his visual inspection. (RR IV 37). Menchaca testified that he followed the 

National Fire Protection Standard 921 best practices and collected samples for 

testing. (RR IV 59-60). The samples Menchaca collected for testing included two 

floor debris samples, the light fixture form the closet, the wall outlet from the 

closet and an exemplar light from the laundry room. (RR IV 52). He 
8

recommended the insurance company test the samples in order to find out what 

happened for sure. (RR IV 51-52). The insurance company declined. (RR IV 53). 

Even though Menchaca knew there was an on-going criminal investigation, 

and also knew that somebody had been arrested in the case, the samples taken were 

not kept. (RR IV 53). 

ARGUMENT AND AUTHORITIES

APPELLANT’S FIRST POINT OF ERROR (Restated)

Whether a finding of guilt in an arson case constitutes error when the 

evidence is legally insufficient because it does not rise to the level of 

scientific reliability necessitated by the use of valid scientific 

methodology.

The evidence is insufficient to support the jury’s finding that Jody 

Whelchel committed arson. 

In reviewing the sufficiency of the evidence, the court is required to view the 

evidence in the light most favorable to the prosecution and determine if any rational 

trier of fact could find the elements of the offense beyond a reasonable doubt. 

Chambers v. State, 711 S.W.2d 240, 245 (Tex. Crim. App. 1986); Jackson v. 

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2879, 62 L.Ed.2d 560 (1979); Griffin v. 

State, 614 S.W.2d 155 (Tex.Crim.App. 1981). 

The Supreme Court held in Jackson v. Virginia that its previous “no evidence” 

test was “simply inadequate to protect against misapplications of the constitutional 
9

standard of reasonable doubt” because “‘[a] mere modicum of evidence may satisfy 

a ‘no evidence’ standard.’” Jackson v. Virginia, 443 U.S. at 320 (quoting Jacobellis 

v. Ohio, 378 U.S. 184, 202 (1964)(Warren, C.J., dissenting)). In Brooks v. State, 

323 S.W.3d 893 (Tex.Crim.App. 2010), the Texas Court of Criminal Appeals held 

that the Jackson v. Virginia, 443 U.S. 307 (1979), standard for legal sufficiency is 

the "only standard that a reviewing court should apply in determining whether the 

evidence is sufficient to support each element of a criminal offense that the State is 

required to prove beyond a reasonable doubt." Brooks, 323 S.W.3d at 912. 

The question, then, is whether the evidence in this case is legally sufficient,

not whether there is some proof from which a conclusion of guilt could be drawn. If 

the evidence “gives equal or nearly equal circumstantial support to a theory of guilt 

and a theory of innocence of the crime charged, then a reasonable jury must 

necessarily entertain a reasonable doubt.” Clark v. Procunier, 755 F.2d 394, 396 (5th 

Cir. 1985). See also Weaver v. State, 96 Tex.Crim. 506, 258 S.W. 171 (1924); Texas 

Employers Ins. Ass’n v. Goad, 622 S.W.2d 477, 480 (Tex. App. — Tyler 1981, no 

writ); See also United States v. Moreno, 185 F.3d 465, 471 (5th Cir. 1999) cert. 

denied, 528 U.S. 1095 (2000)(“While the jury is free to choose among reasonable 

constructions of the evidence, a verdict cannot be affirmed if it is based on 

circumstantial evidence that is as consistent with innocence as with guilt.”); United 

States v. D’Amato, 39 F.3d 1249, 1256 (2nd Cir. 1994)(evidence “at least as 
10

consistent with innocence as with guilt” insufficient to support a guilty 

verdict)(internal quotation marks omitted). See also Draper v. United States, 358 

.S. 307, 323-324 (1959)(Douglas, J., dissenting)(“The law goes far to protect the 

citizen. Even suspicious acts observed by ... officers may be as consistent with 

innocence as with guilt. That is not enough, for even the guilty may not be 

implicated on suspicion alone.”). The due process clauses of the U. S. and Texas

Constitutions protect a defendant against conviction “except upon proof

beyond a reasonable doubt of every fact necessary to constitute the crime with

which he is charged.” In re Winship, 297 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d

368 (1970). See also, Richardson v. State, 879 S.W.2d 874 (Tex. Crim. App.

1993).

Under Jackson and Chambers, supra, the appellate court must

consider all of the evidence presented at trial, even if it was contradicted

by other evidence. The State is required to affirmatively prove each element

of the offense. Gold v. State, 736 S.W.2d 685 (Tex. Crim. App. 1987). If the

evidence, when viewed in the light most favorable to the verdict or

judgment, gives equal or nearly equal support to the theories of innocence

and guilt, the evidence is insufficient. Clark v. Procunier, 755 F.2d 394, 396

(5th Cir. 1985).
11

An appellate court reviews the legal sufficiency of the evidence “by 

considering all of the evidence in the light most favorable to the prosecution” to 

determine whether any “rational trier of fact could have found the essential 

elements of the offense beyond a reasonable doubt.” Jackson v. Virginia, 443 

U.S. 307, 318-19 (1979). Evidence is legally insufficient when the “only proper 

verdict” is acquittal. Tibbs v. Florida, 457 U.S. 31, 41-42 (1982). The appellate 

court’s role is that of a due process safeguard, ensuring only the rationality of the 

trier of fact’s finding of the essential elements of the offense beyond a reasonable 

doubt. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). 

Deference is given to the responsibility of the fact finder to fairly resolve conflicts 

in testimony, to weigh evidence, and to draw reasonable inferences from the facts. 

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). But the 

appellate court must “ensure that the evidence presented actually supports a 

conclusion that the defendant committed” the criminal offense of which he is 

accused. Id. 

In this case, the sufficiency of the evidence requires the evidence be 

scientifically valid. The State had the burden of proving beyond a reasonable doubt 

that appellant intentionally committed arson. (CR I 371). In order to convict 

appellant of arson, the State had the burden to prove beyond a reasonable doubt that, 

Jody Whelchel started a fire with the intent to destroy or damage any building, 
12

habitation, or vehicle knowing that: (1) is insured against damage or destruction, (2) 

is subject to a mortgage or other security interest, or (3) has located within it property 

belonging to another.

The Court of Criminal Appeal has also acknowledged the great weight

jurors place on scientific evidence, and that jurors tend to defer to an expert’s

credentials rather than content when the scientific opinions offered are complex:

studies have shown that juror reliance on an expert's credentials is

directly proportional to the complexity of the information

represented: the more complex the information, the more the jury

looks to the background, experience, and status of the expert himself

rather than to the content of his testimony.

Coble v. State, 330 S.W.3d 253, 281 (Tex. Crim. App. 2010). 

The Supreme Court acknowledged the double-edged character of scientific

evidence which can both illuminate and confuse:

Expert evidence can be both powerful and quite misleading because of

the difficulty in evaluating it.

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595, 113 S. Ct. 2786.

While the Texas rules of evidence encourage the consideration of relevant

and reliable scientific evidence pursuant to Rule 702, courts have also noted that

judges are not well equipped to correctly evaluate difficult issues of science.

See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 599 (1993) (Rehnquist,

C.J., and Stevens, J., concurring and dissenting) (Daubert factors involve
13

consideration of issues “far afield from the expertise of judges”); Rosen v. CibaGeigy Corp., 78 F.3d 316, 318 (7th Cir. 1996) (“it is a daunting task for judges

who do not have a scientific background (and most do not) to decide whether a 

scientist's testimony is real science or not”); Kelly v. State, 824 S.W.2d 568, 576

(Tex. Crim. App. 1992) (Clinton, J., dissenting) (expressing concern that

incorrect decision admitting unreliable science will result in injustice and that

Texas criminal justice system lacks procedures to meaningfully test scientific

evidence).

The record reveals that each of the State’s experts utilized his own experiences 

to make a visual inspection of the situs to form his hypothesis that the fire was 

incendiary. Samples were available for testing, yet no samples were tested. The 

State’s experts made a conscientious and deliberate decision to formalize their 

hypotheses as the official finding that the fire was incendiary, without the support 

or verification of any scientific testing conducted to either prove or disprove the 

hypotheses. Without scientific testing, the hypothesis is, at best, an un-validated 

subjective theory. Without valid, objective scientific testing of the evidence, the 

evidence is insufficient and cannot sustain a conviction.

APPELLANT’S SECOND POINT OF ERROR (Restated)

Whether a wife can be forced to testify against her husband under the 

victim’s exception to the spousal privilege rule when the damaged 

property in question is their joint property, thereby rendering the trial 
14

court’s denial of the defendant’s Motion to Invoke Spousal Privilege 

error.

Texas Rules of Appellate Procedure 44.2(b) provides that any non-constitutional 

error that does not affect substantial rights must be disregarded. A substantial right 

is affected when the error had a substantial and injurious effect or influence in 

determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. 

App. 1997). In assessing the likelihood that the jury's decision was adversely 

affected by the error, the Court considers everything in the record, including any 

testimony or physical evidence admitted for the jury's consideration, the nature of 

the evidence supporting the verdict, and the character of the alleged error and how 

it might be considered in connection with other evidence in the case. Motilla v. 

State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). The Court may also consider 

the jury instructions, the State's theory, any defensive theories, closing arguments, 

voir dire, and whether the State emphasized the error. Id. 

The spousal privilege rule has two parts, the first part deals with 

communications to the spouse which were intended to be kept private, and the 

second part is a privilege for the spouse not to be called as a witness at all. Weaver 

v. State, 855 S.W.2d 116, 119-20 (Tex. App.-Houston [14th Dist.] 1993). Texas 

Rules of Evidence 504(a), provides in pertinent part:
15

(a) Confidential communication privilege. 

(1) Definition. A communication is confidential if it is made privately by any 

person to the person's spouse and it is not intended for disclosure to any other 

person. 

(2) Rule of privilege. A person, whether or not a party, or the guardian or 

representative of an incompetent or deceased person, has a privilege during their 

marriage and afterwards to refuse to disclose and to prevent another from 

disclosing a confidential communication made to the person's spouse while they 

were married. 

An exception to the rule exists when the spouse is a victim of the defendant. 

In the instant matter, the State asserts that the wife (Dondee Whelchel) is the 

husband’s (Jody Whelchel) victim because the house that he was is alleged to have 

started a fire in belonged to Dondee. (CR 11). The State forced Dondee to testify 

against her will by issuing a subpoena, and threatened Dondee that if she did not 

respond to the subpoena then a warrant for her arrest would be issued. (RR III 70-

71). She testified that the house was their joint property (RR III 74). She further 

testified that on two instances that morning, during an argument, Jody told her that 

he was going to burn the house down (RR III 44, 49). 
16

Dondee’s forced testimony harmed her husband, Jody Whelcehel, because it 

was the only evidence provided by the State in its attempt to establish “intent” to 

commit arson. Without Dondee’s forced testimony, the State would not have met 

its burden. As such, the trial court’s denial of the defendant’s Motion to Invoke 

Spousal Privilege constituted error, and that error had a substantial and injurious 

effect or influence in determining the jury's verdict.

CONCLUSION

Appellant respectfully urges this Court to hold that the evidence is insufficient

to support the jury’s verdict of guilt and overturn the conviction. In the alternate, 

Appellant respectfully urges this Court to hold that the trial court erred when it 

denied Jody Whelchel’s Motion to Invoke Spousal Privilege and remand the case to 

the lower court for action consistent with this holding.

Respectfully Submitted,

Zell Wright Law Offices, PLLC

By: _/s/ Dawn Zell Wright________

Dawn Zell Wright

State Bar No. 24033498

812 Barrett Street

Richmond, Texas 77469

Tel: (832) 361-3291

Fax: (888) 897-3001

Email: zellwright@zwlaw.us
17

CERTIFICATE OF SERVICE

On July 28, 2015, Appellant has faxed a copy of the foregoing instrument to 

counsel for the State of Texas at:

John Harrity

Fort Bend County District Attorney’s Office

301 Jackson Street

Richmond, Texas 77469-3108

Fax: (281) 238-3366

_/s/ Dawn Zell Wright_____

Dawn Zell Wright

Attorney for Jody Whelchel

SBN 24033498

812 Barrett Street

Richmond, Texas 77469

Tel: (832) 361-3291

Fax: (888) 897-3001

Email: zellwright@zwlaw.us