Shawn Smith v. State ( 2015 )

ACCEPTED
06-14-00156-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
1/7/2015 9:17:06 AM
DEBBIE AUTREY
CLERK
No. 06-14-0156-CR
FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
IN THE SIXTH COURT OF APPEALS 1/8/2015 4:34:00 PM
DEBBIE AUTREY
at TEXARKANA Clerk
________________________________________________
SHAWN SMITH,
Appellant
vs.
STATE OF TEXAS,
Appellee
________________________________________________
Appeal from the District Court of Bowie County, Texas
102nd Judicial District
________________________________________________
APPELLANT’S BRIEF
_________________________________________________
Troy Hornsby
Miller, James, Miller & Hornsby, L.L.P.
1725 Galleria Oaks Drive
Texarkana, Texas 75503
troy.hornsby@gmail.com
903.794.2711, f. 903.792.1276
Attorney for Appellant
Shawn Smith
Oral Argument Requested
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Texas Rule of Appellate Procedure 38.1(a), the following is a
complete list of all parties to the trial court’s judgment and the names and
addresses of all trial and appellate counsel:
Appellant Smith’s appellate counsel
Shawn Smith Troy Hornsby
Miller, James, Miller, & Hornsby, LLP
1725 Galleria Oaks Drive
Texarkana, Texas 75503
Smith’s trial counsel
Will Williams
Bowie Co. Public Defender's Office
424 W. Broad Street
Texarkana, Texas 75501
Appellee State's counsel
State of Texas Kelley Gossett Crisp
Bowie County Dist. Attorney's Office
601 Main Street
Texarkana, Texas 75501
2
TABLE OF CONTENTS
Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Statement of Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Issue 1: Count 4 of the indictment, alleging injury to a child, was
fundamentally defective due to the omission of the
required causation element. . . . . . . . . . . . . . . . . . . . . . . . . 17
Preservation of Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Law and Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Harmful Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Issue 2: Count 1 of the indictment, alleging aggravated sexual
assault (of a child), was defective because of the State's
failure to delineate a specific aggravating factor. . . . . . . 23
Preservation of Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Law and Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Harmful Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3
Issue 3: Smith did not voluntarily absent himself from the
punishment phase of the trial because guards, rather
than medical necessity, prevented Smith from
attending . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Preservation of Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Law and Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Harmful Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Issue 4: The court admitted a DNA testing report without
allowing Smith the opportunity to cross examine the
serologist who actually conducted the testing.
Accordingly, Smith was denied his right to confrontation
guaranteed by the Sixth Amendment . . . . . . . . . . . . . . . . 40
Preservation of Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Law and Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Harmful Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
4
INDEX OF AUTHORITIES
CASES: PAGE
Amaya v. State,
551 S.W.2d 385 (Tex. Crim. App. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . 28
American Plant Corporation v. State,
508 S.W.2d 598 (Tex. Crim. App. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . 28
Ashley v. State,
404 S.W.3d 672 (Tex. App.—El Paso 2013, no pet.) . . . . . . . . . . . . . . . 35
Bath v. State,
951 S.W.2d 11 (Tex. App.—Corpus Christi 1997, pet. ref'd) . . . . . . . 38
Bird v. State,
527 S.W.2d 891 (Tex. Crim. App. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . 22
Bledsoe v. State,
936 S.W.2d 350 (Tex. App.—El Paso 1996, no writ) . . . . . . . . . . . . . . 39
Bottom v. State,
860 S.W.2d 266 (Tex. App.—Fort Worth 1993, no pet.) . . . . . . 35,36-7
Brem v. State,
571 S.W.2d 314 (Tex. Crim. App. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . 29
Cain v. State,
947 S.W.2d 262 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . 31
Coleman v. State,
643 S.W.2d 124 (Tex. Crim. App. 1982) . . . . . . . . . . . . . . . . . . . . . . 28,29
Cook v. State,
902 S.W.2d 471 (Tex. Crim. App. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . 18
Crawford v. Washington,
541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) . . . . . . . . . . . . . . . 42
Drumm v. State,
560 S.W.2d 944 (Tex. Crim. App. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . 28
5
Duron v. State,
956 S.W.2d 547 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . 18
Ex Parte Mathis,
571 S.W.2d 186 (Tex. Crim. App. 1978) . . . . . . . . . . . . . . . . . . . . . . 19,21
Ferguson v. State,
622 S.W.2d 846 (Tex. Crim. App. 1980)(en banc) . . . . . . . . . . . . . . 28,29
Gorman v. State,
634 S.W.2d 681 (Tex. Crim. App. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . 28
Grizzard v. State,
No. 01-06-00930-CR (Tex. App.—Houston [1st Dist.]
July 3, 2008, no pet.)(mem. op) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35,37
Guzman v. State,
955 S.W.2d 85 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . . . . 19,24
Hamilton v. State,
300 S.W.3d 14 (Tex. App.—San Antonio 2009, pet. ref'd) . . . . . . 42,43
Heard v. State,
887 S.W.2d 94 (Tex. App.—Texarkana 1994, pet. ref'd) . . . . . . . . 35,37
Hodges v. State,
116 S.W.3d 289 (Tex. App.—Corpus Christi 2003, pet. ref'd) . . . . . . 38
Hudson v. State,
128 S.W.3d 367 (Tex. App.—Texarkana 2004, no pet.) . . . . . . . . . . . . 33
In re Commitment of Young,
410 S.W.3d 542 (Tex. App.—Beaumont 2013, no pet.) . . . . . . . . . . . . 38
Jasper v. State,
61 S.W.3d 413 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Johnson v. State,
623 S.W.2d 654 (Tex. Crim. App. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . 29
Johnson v. State,
967 S.W.2d 410 (Tex. Crim. App. 1998) . . . . . . . . . . . . . . . . . 21,30,38,43
6
Johnson v. State,
43 S.W.3d 1 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . 21,22,30,31,38,43
King v. State,
953 S.W.2d 266 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . 21,30,38,43
Maines v. State,
170 S.W.3d 149 (Tex. App.—Eastland 2005, no pet.) . . . . . . . . . . 35,37
May v. State,
618 S.W.2d 333 (Tex. Crim. App. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . 28
Melendez-Diaz v. Massachusetts,
557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009) . . . . . . . . . . . . . . 42
Miller v. State,
692 S.W.2d 88 (Tex. Crim. App. 1985) (en banc) . . . . . . . . . . . . . . 34,35
Moore v. State,
670 S.W.2d 259 (Tex. Crim. App. 1984) (en banc) . . . . . . . . . . . . . . . . 33
Nam Hoai Le v. State,
963 S.W.2d 838 (Tex. App.—Corpus Christi 1998, pet. ref'd) . . . . . . 18
Papakostas v. State,
145 S.W.3d 723 (Tex. App.—Corpus Christi 2004, no pet.) . . . . . . . . 33
Sanchez v. State,
182 S.W.3d 34 (Tex. App.—San Antonio 2005),
aff'd, 209 S.W.3d 117 (Tex. Crim. App. 2006) . . . . . . . . . . . . . . . . . . . . 31
Schutz v. State,
63 S.W.3d 442 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . . . 21,30,38,43
Smith v. State,
309 S.W.3d 10 (Tex. Crim. App. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . 31
State v. Mays,
967 S.W.2d 404 (Tex. Crim. App. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . 27
State v. Moff,
154 S.W.3d 599 (Tex. Crim. App. 2004) . . . . . . . . . . . . . . . . . . . . . . 18,24
7
Sumrell v. State,
326 S.W.3d 621 (Tex. App.—Dallas 2009),
pet. dism'd improvidently granted,
320 S.W.3d 338 (Tex. Crim. App. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . 39
Taylor v. United States,
414 U.S. 17 (1973) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Tollett v. State,
219 S.W.3d 593 (Tex. App.—Texarkana 2007, pet. ref’d) . . . . . . . . . 31
Tullous v. State,
23 S.W.3d 195 (Tex. App.—Waco 2000, pet. ref’d) . . . . . . . . . . . . . . . 29
United States v. Bearden,
423 F.2d 805 (5th Cir. 1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
United States v. Ramirez,
233 F.3d 318 (5th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Wall v. State,
184 S.W.3d 730 (Tex. Crim. App. 2006) . . . . . . . . . . . . . . . . . . . . . . . 40-1
Walters v. State,
777 S.W.2d 734 (Tex. App.—Beaumont 1989, pet. ref’d) . . . . . . . 29,30
Watson v. State,
548 S.W.2d 676 (Tex. Crim. App. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . 29
Weber v. State,
829 S.W.2d 394 (Tex. App.—Beaumont 1992, no pet.) . . . . . . . . . . . . 39
CONSTITUTIONS:
Tex. Const. art. I, §10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19,25
Tex. Const. art. V, §12(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
STATUTES AND RULES:
Tex. Code Crim. Proc. Ann. art. 1.14(b) (West 2005) . . . . . . . . . . . . . . . . 17,23
8
Tex. Code Crim. Proc. Ann. art. 21.02(7) (West 2009) . . . . . . . . . . . . . . . 19,25
Tex. Code Crim. Proc. Ann. art. 21.03 (West 2009) . . . . . . . . . . . . . . . . . 19,25
Tex. Code Crim. Proc. Ann. art. 21.12 (West 2009) . . . . . . . . . . . . . . . . . . . . 28
Tex. Code Crim. Proc. Ann. art. 21.19 (West 2009) . . . . . . . . . . . . . . . . . . . . 31
Tex. Code Crim. Proc. Ann. art. 21.21(7) (West 2009) . . . . . . . . . . . . . . . 19,25
Tex. Code Crim. Proc. Ann. art. 33.03 (West 2006) . . . . . . . . . . . . . . . . . 34,35
Tex. Pen. Code Ann. §1.07 (a)(1) (West supp. 2014) . . . . . . . . . . . . . . . . . . . 26
Tex. Pen. Code Ann. §22.021 (West supp. 2014) . . . . . . . . . . . . . . . . . 25,26,27
Tex. Pen. Code Ann. §22.04 (West 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . 19,20
Tex. R. App. P. 33.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17,23,32,40
Tex. R. App. P. 44.2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21,30,31,38,43
9
STATEMENT OF THE CASE
Nature of case: This is an appeal from a conviction for the following:
(Count 1) aggravated sexual assault (of a child)
Tex. Pen. Code §22.021 (C.R. pg. 366)
(Count 2) indecency with a child (by sexual contact)
Tex. Pen. Code §21.11 (C.R. pg. 368)
(Count 3) assault (family violence) [lesser included]
Tex. Pen. Code §22.01 (C.R. pg. 370)
(Count 4) injury to a child
Tex. Pen. Code §22.04. (C.R. pg. 372)
(Count 5) acquitted (C.R. pg. 326)
(Count 6) acquitted (C.R. pg. 327)
(Count 7) indecency with a child (by sexual contact)
Tex. Pen. Code §21.11 (C.R. pg. 376)
Judge/Court: Judge Bobby Lockhart, 102nd District Court of Bowie
County, Texas. (C.R. pg. 366,368,376,370,372).
Pleas: Shawn Smith (Smith) entered pleas of “not guilty” to all
of the allegations against him.(C.R. pg. 366,368,376,370,
372)(R.R. vol. 15 pg. 7-12).
Trial disposition: The case was tried to a jury which found Smith guilty of
only these five offenses and recommended the following
sentences:
(Count 1) aggravated sexual assault (of a child)
99 years (C.R. pg. 366)
(Count 2) indecency with a child (by sexual contact)
99 years (C.R. pg. 368)
(Count 3) assault (family violence)
one year (C.R. pg. 370)
(Count 4) injury to a child
10
25 years (C.R. pg. 372)
(Count 7) indecency with a child (by sexual contact)
99 years (C.R. pg. 376)
The court imposed those sentences with counts 1, 3 and 4
to run consecutively and counts 2 and 7 running
consecutively. (C.R. pg. 366,368,376,370,372).
11
ISSUES PRESENTED
Issue 1: Count 4 of the indictment, alleging injury to a child, was
fundamentally defective due to the omission of the required
causation element.
Issue 2: Count 1 of the indictment, alleging aggravated sexual assault
(of a child), was defective because of the State’s failure to
delineate a specific aggravating factor.
Issue 3: Smith did not voluntarily absent himself from the punishment
phase of the trial because guards, rather than medical necessity,
prevented Smith from attending.
Issue 4: The court admitted a DNA testing report without allowing
Smith the opportunity to cross examine the serologist who
actually conducted the testing. Accordingly, Smith was denied
his right to confrontation guaranteed by the Sixth Amendment.
12
STATEMENT OF ORAL ARGUMENT
Oral argument might assist the court in considering the multiple
aggravating factors in count 1 and the underlying facts of Smith’s alleged
voluntary absenting himself from the trial.
13
STATEMENT OF FACTS
It is undisputed that Shawn Smith (Smith) and Shelby Jones (victim’s
pseudonym used in the indictments) both believed that Smith was Shelby
Jones’s natural father. (R.R. vol. 16 pg. 124). Shelby Jones was 14 years old
(R.R. vol. 16 pg. 124) and lived with Smith at Smith’s mother’s home. (R.R.
vol. 16 pg. 125).
The State alleges that on January 19, Smith digitally penetrated
Shelby Jones. (R.R. vol. 16 pg. 128-9). Additionally, on January 24, Smith
struck Shelby Jones and threatened her life, then had vaginal intercourse
with Shelby Jones. (R.R. vol. 16 pg. 131-6).
Smith denies the sexual assault allegations. (R.R. vol. 17 pg. 239-240).
Smith admits to spanking Shelby Jones (R.R. vol. 17 pg. 188) and argues
that Shelby Jones fabricated the allegations in an attempt to get away from
Smith. (R.R. vol. 17 pg. 18). Smith contends that he is not Shelby Jones’
father. (R.R. vol. 16 pg. 33).
14
SUMMARY OF THE ARGUMENT
Issue 1: Count 4 of the indictment, alleging injury to a child, was
fundamentally defective due to the omission of the required
causation element.
In count 4 of the indictment against Smith, alleging injury to a child,
the State omitted the required causation element. This omission from the
charging instrument is fundamental error because it does not charge Smith
with the commission of injury to a child on the face of the charging
instrument.
Issue 2: Count 1 of the indictment, alleging aggravated sexual assault
(of a child), was defective because of the State's failure to
delineate a specific aggravating factor.
Count 1 of the indictment against Smith failed to delineate a specific
aggravating factor escalating sexual assault to aggravated sexual assault,
out of the nine potential aggravating factors addressed in the indictment.
Although it is generally not necessary for the State to specifically allege any
particular aggravating factor, here the offense could have been aggravated
in nine different ways. Therefore, a failure to delineate the particular
aggravating factor deprived Smith of fair notice of the alleged offense.
Accordingly, count 1 of the indictment was insufficient.
15
Issue 3: Smith did not voluntarily absent himself from the punishment
phase of the trial because guards, rather than medical necessity,
prevented Smith from attending.
Smith was not present at trial to receive the guilt-innocence verdict,
nor was he present to attend or testify during the punishment phase. The
appellate record may establish that Smith initially voluntarily absented
himself from the guilt-innocence phase of the trial due to a suicide attempt.
However, the appellate record does not establish that Smith continued to
voluntarily absent during the punishment phase of the trial. Rather, the
appellate record establishes that the guards, rather than the medical
necessity of treatment, prevented Smith from attending the punishment
phase of the trial.
Issue 4: The court admitted a DNA testing report without allowing
Smith the opportunity to cross examine the serologist who
actually conducted the testing. Accordingly, Smith was denied
his right to confrontation guaranteed by the Sixth Amendment.
The court admitted a DNA testing report which was testimonial in
nature implicating Smith’s Sixth Amendment right to confrontation.
However, that right was violated when Smith was denied the opportunity
to cross examine the serologist who actually conducted the testing.
16
ARGUMENT
Issue 1: Count 4 of indictment, alleging injury to a child, was
fundamentally defective due to the omission of the required
causation element.
In count 4 of the indictment against Smith, alleging injury to a child,
the State omitted the required causation element. This omission from the
charging instrument is fundamental error because it does not charge Smith
with the commission of injury to a child on the face of the charging
instrument.
Preservation of Error
To preserve a complaint for appellate review, a party must generally
have presented to the trial court a timely request, objection, or motion that
states the specific grounds for the desired ruling, if they are not apparent
from the context of the request, objection, or motion. See Tex. R. App. P.
33.1(a). More specifically, article 1.14(b) of the Texas Code of Criminal
Procedure provides:
If the defendant does not object to a defect, error, or irregularity
of form or substance in an indictment or information before the
date on which the trial on the merits commences, he waives
and forfeits the right to object to the defect, error, or irregularity
and he may not raise the objection on appeal.
Tex. Code Crim. Proc. Ann. art. 1.14(b) (West 2005).
Although Smith objected to the indictment, Smith did not object to
the indictment on this basis. Therefore, Smith is forced to argue
17
fundamental error.
To show fundamental error, a party must show that the charging
instrument is so deficient that it fails to confer jurisdiction upon the court
to render a conviction. Nam Hoai Le v. State, 963 S.W.2d 838, 843 (Tex.
App.—Corpus Christi 1998, pet. ref'd). A charging instrument is sufficient
to convey jurisdiction if it charges a specific person with the commission of
an offense which is apparent from the face of the charging instrument. Id.;
see also Duron v. State, 956 S.W.2d 547, 549-50 (Tex. Crim. App. 1997).
Further, an indictment is constitutionally defective only if it is so defective
that it no longer serves as an indictment. See Tex. Const. art. V, § 12(b); Cook
v. State, 902 S.W.2d 471, 476 (Tex. Crim. App. 1995). The crime must be
alleged in the indictment with enough specificity and clarity that the
defendant can identify the penal statute under which the state intends to
prosecute. Duron v. State, 956 S.W.2d 547, 550 (Tex. Crim. App. 1997).
Finally and most specifically, in Ex Parte Marthis, the Texas Court of
Criminal Appeals concluded that a complaint as to the omission of a
necessary element to an indictment may be urged for the first time after
trial. 571 S.W.2d 186 (Tex. Crim. App.1978).
Standard of Review
The sufficiency of an indictment is a question of law. State v. Moff,
154 S.W.3d 599, 601 (Tex. Crim. App. 2004). When the resolution of a
18
question of law does not turn on an evaluation of the credibility and
demeanor of a witness, then the trial court is not in a better position to
make the determination, and appellate courts should conduct a de novo
review of the issue. Id.; see Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.
App. 1997).
Law and Application
In count 4 of the indictment against Smith, alleging injury to a child,
the State omitted the required causation element. This omission from the
charging instrument is fundamental error because it does not charge Smith
with the commission of injury to a child on the face of the charging
instrument.
Texas Code of Criminal Procedure Article 21.03 provides “everything
should be stated in an indictment which is necessary to be proved.” Tex.
Code Crim. Proc. Ann. art. 21.03; see also art. 21.02(7), art. 21.21(7) (West
2009). This stems from the constitutional right of an accused “to demand
the nature and cause of the accusation.” Tex. Const. art. I, §10. If an
element of an offense is omitted, then the indictment fails to allege an
offense. Ex parte Mathis, 571 S.W.2d 186 (Tex. Crim. App.1978).
Texas Penal Code section 22.04 provides in relevant part as follows:
Injury to a Child, Elderly Individual, or Disabled Individual
(a) A person commits an offense if he intentionally,
knowingly, recklessly, or with criminal negligence, by act
19
or intentionally, knowingly, or recklessly by omission,
causes to a child, elderly individual, or disabled
individual:
(1) serious bodily injury;
(2) serious mental deficiency, impairment, or injury; or
(3) bodily injury.
. . .
Tex. Pen. Code Ann. §22.04 (West 2011). Thus, injury to a child requires the
State to allege the actor (1) intentionally, knowingly, recklessly, or with
criminal negligence (2a) by act, or (2b) or intentionally, knowingly, or
recklessly by omission, (3) causes, (4) to a child, elderly individual, or
disabled individual, (5a) serious bodily injury, (5b) serious mental
deficiency, impairment, or injury, or (5c) bodily injury. Id.
Here, the State alleged elements 1, 2a, 4 and 5c, but omitted element
3, the causation element. (C.R. pg. 36). The indictment against Smith reads
in relevant part as follows:
Count Four - Injury to a Child
And it is further presented in and to said Court that heretofore
on or about January 19, 2013, the said Shawn Lewis Smith, did
then and there intentionally or knowingly bodily injury to
Shelby Jones (a pseudonym), a child who was then and there 14
years of age or younger, by beating Shelby Jones (a
pseudonym) with a belt.
(C.R. pg. 36). This indictment against Smith alleges all the necessary
elements of injury to a child with the exception of causation. See Tex. Pen.
Code Ann. §22.04 (West 2011). It specifies that (1) "Shawn Lewis smith",
(2) “intentionally or knowingly”, (3) "by beating", (4) "Shelby Jones (a
20
pseudonym), a child . . . 14 years of age or younger", and (4) bodily injury.
(C.R. pg. 36). Accordingly, the indictment against Smith alleges everything
"which is necessary to be proved" to allege injury to a child with the
exception of causation.
If an element of an offense is omitted, then the indictment fails to
allege an offense. Ex parte Mathis, 571 S.W.2d 186 (Tex. Crim. App. 1978).
Here, the omission of the causation element causes the indictment to fail to
allege the offense of injury to a child and renders the indictment
fundamentally defective.
Harmful Error
An error must affect the substantial rights of the accused to be
harmful. See Tex. R. App. P. 44.2(b). 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 (Tex. Crim. App. 1997)
(citing Tex. R. App. P. 44.2(b)). Alternatively, error is harmless if the error
"did not influence the jury, or had but a slight effect." Johnson v. State, 967
S.W.2d 410, 417 (Tex. Crim. App. 1998). The appellant does not bear the
burden to establish such harmful error. Schutz v. State, 63 S.W.3d 442, 444
(Tex. Crim. App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App.
2001). Rather, it is the responsibility of the appellate court to assess harm
after reviewing the record. Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim.
21
Ohio App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).
However, a harmless error analysis is not necessary if the error was
fundamental. See, e.g., Bird v. State, 527 S.W.2d 891, 894 (Tex. Crim. App.
1975). As argued above under Law and Application, the omission of the
causation element is fundamental error.
22
Issue 2: Count 1 of the indictment, alleging aggravated sexual assault
(of a child), was defective because of the State’s failure to
delineate a specific aggravating factor.
Count 1 of the indictment against Smith failed to delineate a specific
aggravating factor escalating sexual assault to aggravated sexual assault,
out of the nine potential aggravating factors addressed in the indictment.
Although it is generally not necessary for the State to specifically allege any
particular aggravating factor, here the offense could have been aggravated
in nine different ways. Therefore, a failure to delineate the particular
aggravating factor deprived Smith of fair notice of the alleged offense.
Accordingly, count 1 of the indictment was insufficient.
Preservation of Error
To preserve a complaint for appellate review, a party must generally
have presented to the trial court a timely request, objection, or motion that
states the specific grounds for the desired ruling, if they are not apparent
from the context of the request, objection, or motion. See Tex. R. App. P.
33.1(a). More specifically, article 1.14(b) of the Texas Code of Criminal
Procedure provides:
If the defendant does not object to a defect, error, or irregularity
of form or substance in an indictment or information before the
date on which the trial on the merits commences, he waives
and forfeits the right to object to the defect, error, or irregularity
and he may not raise the objection on appeal.
Tex. Code Crim. Proc. Ann. art. 1.14(b) (West 205).
23
Here, Smith filed a motion to quash the indictment arguing that the
indictment against Smith included eight possible aggravating factors and
sought specificity in this regard. (C.R. pg. 281). That motion was overruled
by the trial court. (R.R. vol. 14 pg. 13). Accordingly, this issue was
preserved for appellate review.
Standard of Review
The sufficiency of an indictment is a question of law. State v. Moff,
154 S.W.3d 599, 601 (Tex. Crim. App. 2004). When the resolution of a
question of law does not turn on an evaluation of the credibility and
demeanor of a witness, then the trial court is not in a better position to
make the determination, and appellate courts should conduct a de novo
review of the issue. Id.; see Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.
App. 1997).
Law and Application
Count 1 of the indictment against Smith failed to delineate a specific
aggravating factor escalating sexual assault to aggravated sexual assault,
out of the nine potential aggravating factors addressed in the indictment.
Although it is generally not necessary for the State to specifically allege any
particular aggravating factor, here the offense could have been aggravated
in nine different ways. Therefore, a failure to delineate the particular
24
aggravating factor deprived Smith of fair notice of the alleged offense.
Accordingly, count 1 of the indictment was insufficient.
Texas Code of Criminal Procedure Article 21.03 provides “everything
should be stated in an indictment which is necessary to be proved.” Tex.
Code Crim. Proc. Ann. art. 21.03 (West 2009); see also Tex. Code Crim. Proc.
Ann. art. 21.02(7) and 21.21(7) (West 2009). This stems from the
constitutional right of an accused “to demand the nature and cause of the
accusation.” Tex. Const. art. I, §10. In order to meet constitutional muster
under the Fifth and Sixth Amendments, "it is well settled that an
indictment must set forth the offense with sufficient clarity and certainty to
apprise the accused of the crime with which he is charged." United States v.
Bearden, 423 F.2d 805, 810 (5th Cir. 1970) (citations omitted). The test for
sufficiency is "not whether the indictment could have been framed in a
more satisfactory manner, but whether it conforms to minimum
constitutional standards" but that it "contains the elements of the offense
charged and fairly informs a defendant of the charge against which he
must defend, and, second, enables him to plead an acquittal or conviction
in bar of future prosecutions for the same offense." United States v. Ramirez,
233 F.3d 318, 323 (5th Cir. 2000).
Texas Penal Code section 22.021 establishes aggravated sexual
assault and provides in relevant part as follows:
25
Aggravated Sexual Assault
(a) A person commits an offense:
(1) if the person:
. . .
(B) intentionally or knowingly:
(i) causes the penetration of the anus or
sexual organ of a child by any means;
. . . and
(2) if:
(A) the person:
. . .
(ii) by acts or words places the victim in
fear that death, serious bodily injury, or
kidnapping will be imminently inflicted
on any person;
(iii) by acts or words occurring in the
presence of the victim threatens to cause
the death, serious bodily injury, or
kidnapping of any person;
(B) the victim is younger than 14 years of age; or
. . .
Tex. Pen. Code Ann. §22.021 (West supp. 2014). Additionally, "act" is
defined as "bodily movement, whether voluntary or involuntary, and
includes speech." Tex. Pen. Code Ann. §1.07 (a)(1) (West supp. 2014).
Here, count 1 of the indictment against Smith reads in relevant part
as follows:
. . . SHAWN SMITH . . . intentionally or knowingly cause
the penetration of the sexual organ of Shelby Jones (a
pseudonym), a child who was then and there younger than 11
years of age, by defendant's sexual organ, and the defendant
did then and there by acts or words threaten to cause, or place,
Shelby Jones (a pseudonym) in fear that death would be
imminently inflicted on Shelby Jones (a pseudonym) and said
acts or words occurred in the presence of Shelby Jones (a
pseudonym).
(C.R. pg. 35)(bold and underlines removed). This indictment against Smith
26
alleges all the necessary elements of aggravated sexual assault of a child.
See Tex. Pen. Code Ann. § 22.021 (West supp. 2014).
However, as alleged in the indictment, the offense of sexual assault
could have been potentially aggravated in nine different ways:
(1) by "voluntary bodily movement" places the victim in fear that
death would be imminently inflicted on her,
(2) by "involuntary bodily movement" places the victim in fear that
death would be imminently inflicted on her,
(3) by "speech" places the victim in fear that death would be
imminently inflicted on her,
(4) by "word" places the victim in fear that death would be
imminently inflicted on her,
(5) by "voluntary bodily movement" occurring in the presence of
the victim threatens to cause the victim’s death,
(6) by "involuntary bodily movement" occurring in the presence of
the victim threatens to cause the victim’s death,
(7) by "speech" occurring in the presence of the victim threatens to
cause the victim’s death,
(8) by "word" occurring in the presence of the victim threatens to
cause the victim’s death, or
(9) the victim is younger than 14 years of age.
Generally, an information which tracks the statutory language will
provide adequate notice. State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim.
App. 1998). More specifically, an information need not set forth facts
which are "merely evidentiary in nature." State v. Mays, 967 S.W.2d 404,
406 (Tex. Crim. App. 1998). However, when a defendant properly raises
27
the issue and the "statute denouncing the offense permits conviction on
more than one set of circumstances, the accused is not required to
anticipate any and all variant facts the State might hypothetically seek to
establish . . . " Ferguson v. State, 622 S.W.2d 846 (Tex. Crim. App. 1980)(en
banc)(citing Drumm v. State, 560 S.W.2d 944, 947 (Tex. Crim. App. 1977)).
In such a situation, a defendant may insist on "a specific allegation of what
the State will rely upon." Ferguson v. State, 622 S.W.2d 846 (Tex. Crim. App.
1980)(en banc)(citing Amaya v. State, 551 S.W.2d 385, 387 (Tex. Crim. App.
1977)).
For example, in Coleman v. State, the Texas Court of Criminal Appeals
addressed a similar situation. 643 S.W.2d 124, 125 (Tex. Crim. App. 1982).
There, the State alleged theft "by appropriation" which was challenged by a
motion to quash seeking clarification. Id. at 125. The court concluded that
generally, if the word or term is defined by statute, it need not be further
clarified in the charging instrument. Id. at 125 (citing Tex. Code Crim. Proc.
Ann. art. 21.12 (West 2009), American Plant Corporation v. State, 508 S.W.2d
598 (Tex. Crim. App. 1974), and May v. State, 618 S.W.2d 333 (Tex. Crim.
App. 1981)). However, if a word or term in a charging instrument goes to
an act or omission of the defendant, the word or term must be further
clarified by the State. Id. (citing Gorman v. State, 634 S.W.2d 681, (Tex. Crim.
App. 1982)).
Here, the indictment included nine potential aggravating factors.
28
Thus, pursuant to Ferguson v. State, Smith requested a specific allegation.
622 S.W.2d 846 (Tex. Crim. App. 1980)(en banc). More specifically, the
term "act" is defined by statute, but goes to an act or omission of the
defendant, and therefore, should have been clarified by the State. Coleman
v. State, 643 S.W.2d 124, 125 (Tex. Crim. App. 1982).
At trial, the State directed the court to several cases where courts did
not require more specific allegations. In Tullous v. State, the Waco Court of
appeals did not require more specificity where there were three potential
uses of "force" under the statute. 23 S.W.3d 195 (Tex. App.—Waco 2000,
pet. ref’d). In Brem v. State, the Texas Court fo Criminal Appeals concluded
that the State need not specify the means of "force and threats" aggravating
the offense. Brem v. State, 571 S.W.2d 314 (Tex. Crim. App. 1978); see also
Johnson v. State, 623 S.W.2d 654, 655 (Tex. Crim. App. 1981) and Watson v.
State, 548 S.W.2d 676, 678-79 (Tex. Crim. App. 1977). Finally, in Walters v.
State, the court concluded that the failure to specify the aggravating factor
was not fundamental error. 777 S.W.2d 734 (Tex. App.—Beaumont 1989,
pet. ref’d).
However, in these cases advanced by the State there were at most
three potential factors. Tullous v. State, 23 S.W.3d 195 (Tex. App.—Waco
2000, pet. ref’d) (three potential uses of force); Brem v. State, 571 S.W.2d 314
(Tex. Crim. App. 1978)(two: force or threats); see also Johnson v. State, 623
S.W.2d 654, 655 (Tex. Crim. App. 1981)(two: force or threats) and Watson v.
29
State, 548 S.W.2d 676, 678-79 (Tex. Crim. App. 1977)(two: force or threats).
Here, we are addressing nine potential factors which is substantially more
complicated than the three in the cases addressed by the State. Finally,
Walters v. State addressed fundamental error, which is inapplicable to this
case, where Smith preserved the issue by a motion to quash. 777 S.W.2d
734 (Tex. App.—Beaumont 1989, pet. ref’d).
The State’s inclusion of nine potential aggravating factors failed to
put Smith on sufficient notice to prepare his defense. Accordingly, this
court should conclude the indictment should have been quashed.
Harmful Error
An error must affect the substantial rights of the accused to be
harmful. See Tex. R. App. P. 44.2(b). 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 (Tex. Crim. App. 1997) citing
Tex. R. App. P. 44.2(b). Alternatively, error is harmless if the error "did not
influence the jury, or had but a slight effect." Johnson v. State, 967 S.W.2d
410, 417 (Tex. Crim. App. 1998). The appellant does not bear the burden to
establish such harmful error. Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim.
App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001). Rather,
it is the responsibility of the appellate court to assess harm after reviewing
the record. Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001);
30
Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).
More specifically Texas Code of Criminal Procedure 21.19 provides
as follows for errors in form:
An indictment shall not be held insufficient, nor shall the trial,
judgment, or other proceedings thereon be affected, by reason
of any defect of form which does not prejudice the substantial
rights of the defendant.
Tex. Code Crim. Proc. Ann. art. 21.19 (West 2009). However, Texas Code
of Criminal Procedure 21.19 is inapplicable to errors of substance. Sanchez
v. State, 182 S.W.3d 34 (Tex. App.—San Antonio 2005), aff'd, 209 S.W.3d 117
(Tex. Crim. App. 2006). This court has concluded that errors of substance
are subject to harmless error analysis under Texas Rule of Appellate
Procedure 44.2. Tollett v. State, 219 S.W.3d 593 (Tex. App.—Texarkana
2007, pet. ref’d) (citing Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App.
1997)). However, the Texas Court of Criminal Appeals has not yet
addressed this issue. See Smith v. State, 309 S.W.3d 10 (Tex. Crim. App.
2010).
Here, the State alleged nine possible aggravating factors. The failure
to delineate which of the nine potential aggravating factors on which the
State intended to rely failed to put Smith on sufficient notice to prepare his
defense. For this reason, Smith suffered harmful error from the State’s
failure to specify the aggravating factor on which it intended to rely.
31
Issue 3: Smith did not voluntarily absent himself from the punishment
phase of the trial because guards, rather than medical necessity,
prevented Smith from attending.
Smith was not present at trial to receive the guilt-innocence verdict,
nor was he present to attend or testify during the punishment phase. The
appellate record may establish that Smith initially voluntarily absented
himself from the guilt-innocence phase of the trial due to a suicide attempt.
However, the appellate record does not establish that Smith continued to
voluntarily absent during the punishment phase of the trial. Rather, the
appellate record establishes that the guards, rather than the medical
necessity of treatment, prevented Smith from attending the punishment
phase of the trial.
Preservation of Error
To preserve a complaint for appellate review, a party must generally
have presented to the trial court a timely request, objection, or motion that
states the specific grounds for the desired ruling, if they are not apparent
from the context of the request, objection, or motion. See Tex. R. App. P.
33.1(a). Here, Smith’s trial attorney objected to the guilt innocence phase
of the trial continuing and the punishment phase beginning without being
physically present, arguing that Smith had not voluntarily absented
himself from the trial. (R.R. vol. 19 pg. 4-7). Regardless, the trial court
continued with the trial. (R.R. vol. 19 pg. 8). Therefore, this issue was
32
preserved for appellate review.
Standard of Review
An appellate court should review the trial court's determination that
a defendant is voluntarily absent for abuse of discretion. Papakostas v. State,
145 S.W.3d 723, 725 n.2 (Tex. App.—Corpus Christi 2004, no pet.) (citing
Moore v. State, 670 S.W.2d 259, 261 (Tex. Crim. App. 1984) (en banc)). In
most cases, appellate courts must determine from hindsight the validity of
the trial court's voluntariness determination. Hudson v. State, 128 S.W.3d
367, 375 (Tex. App.—Texarkana 2004, no pet.). In this review, courts are
not limited only to the record before the trial court at the time of its ruling.
Moore v. State, 670 S.W.2d 259, 261 (Tex. Crim. App. 1984). As long as there
is "some evidence" supporting the trial court's determination, we will not
disturb the ruling absent evidence from the defendant showing that his
absence was involuntary. Moore v. State, 670 S.W.2d 259, 261 (Tex. Crim.
App. 1984).
Law and Application
Smith was not present at trial to receive the guilt-innocence verdict,
nor was he present to attend or testify during the punishment phase. The
appellate record may establish that Smith initially voluntarily absented
himself from the guilt-innocence phase of the trial due to a suicide attempt.
33
However, the appellate record does not establish that Smith continued to
voluntarily absent during the punishment phase of the trial. Rather, the
appellate record establishes that the guards, rather than the medical
necessity of treatment, prevented Smith from attending the punishment
phase of the trial.
The State contends that after closing arguments in the guilt-
innocence phase of the trial ended on August 18, but before the jury
reached a verdict on August 19, Smith crawled into a "pipe chase" area in
the jail to attempt to hang himself. (R.R. vol. 19 pg. 4-6). During the
attempt, Smith broke a bone in his knee. (R.R. vol. 19 pg. 4-6). Smith was
admitted to a hospital on the morning of August 19. (R.R. vol. 19 pg. 4-6).
The trial court concluded that Smith had voluntarily absented
himself from the trial and proceeded to receive the verdict on August 19.
(R.R. vol. 19 pg. 7). The court then immediately proceeded to the
punishment phase of the trial with Smith still not present. (R.R. vol. 20 pg.
5).
A criminal defendant has a right under the state and federal
constitutions to be present during all phases of the trial. Miller v. State,
692 S.W.2d 88, 90 (Tex. Crim. App. 1985) (en banc) (citing Taylor v. United
States, 414 U.S. 17, 20 (1973) (per curiam)). Article 33.03 of the Texas Code
of Criminal Procedure provides that when a case is to be tried to a jury, the
defendant must be present, at least until the jury has been empaneled and
34
sworn. Tex. Code Crim. Proc. Ann. art. 33.03 (West 2006). However, the
defendant can forfeit his right to be present by voluntarily absenting
himself after the jury is sworn. Miller v. State, 692 S.W.2d 88, 90 (Tex. Crim.
App. 1985) (en banc); see Ashley v. State, 404 S.W.3d 672, 681 (Tex. App.—El
Paso 2013, no pet.) (observing that "the right to be present until the
selection of the jury cannot be waived," but that it does not violate the
defendant's rights to proceed with the trial if the defendant voluntarily
absents himself after the jury is selected).
For example, a defendant has been found to have voluntarily
absented himself because of a medical emergency resulting when the
defendant ingested large quantities of aspirin and arthritis medication.
Bottom v. State, 860 S.W.2d 266, 267 (Tex. App.—Fort Worth 1993, no pet.).
Additionally, a defendant has been found to have voluntarily absented
himself when he attempted suicide by ingestion of prescription drugs.
Grizzard v. State, No. 01-06-00930-CR (Tex. App.—Houston [1st Dist.] July
3, 2008, no pet)(mem. op). Finally, self-induced intoxication has been
found to be voluntarily absenting. Maines v. State, 170 S.W.3d 149, 150
(Tex. App.—Eastland 2005, no pet.); Heard v. State, 887 S.W.2d 94, 98-99
(Tex. App.—Texarkana 1994, pet. ref'd)(self-induced intoxication).
Here, The appellate record establishes that, at least initially, Smith
voluntarily absented himself from the trial on the morning of August 19.
At approximately 9:45 a.m. on the morning of August 19, the court bailiff
35
testified that he had spoken to jail officials who notified him that on
August 18 or 19, Smith crawled into a "pipe chase" area in the jail to
attempt to hang himself. (R.R. vol. 19 pg. 4-6). During the attempt, Smith
broke a bone in his knee. (R.R. vol. 19 pg. 4-6). Smith was admitted to a
hospital on August 19. (R.R. vol. 19 pg. 4-6, vol. 20 pg. 99). The court
proceeded in the case and received the jury’s verdict immediately
thereafter with Smith not present. (R.R. vol. 19 pg. 7-12). This testimony is
some evidence that Smith voluntarily absented himself from the trial
because Smith had to be taken to the hospital for treatment.
However, the trial court also proceeded on to the punishment phase
of the trial, also without Smith being present. (R.R. vol. 20 pg. 5, 97-101).
The defense contended that Smith had not voluntarily absented himself
from the punishment phase of the trial. (R.R. vol. 20 pg. 98). Specifically
Smith’s trial attorney represented to the court the he spoke to Smith and
contended that Smith was not free to leave the hospital because Smith was
under guard. (R.R. vol. 20 pg. 98). Thus, at that point, the evidence was
that the reason that Smith was absent form the trial was not because he had
to receive medical treatment, but because the guards would not allow him
to leave the hospital and go to the trial. Stated another way, the evidence
was that the State would not allow Smith to refuse medical treatment.
The State will presumably direct the court’s attention to the other
absenting cases with similar grounds. See e.g. Bottom v. State, 860 S.W.2d
36
266, 267 (Tex. App.—Fort Worth 1993, no pet.); Grizzard v. State,
01-06-00930-CR (Tex. App.—Houston [1st Dist.] July 3, 2008, no pet.)(mem.
op); Maines v. State, 170 S.W.3d 149, 150 (Tex. App.—Eastland 2005, no
pet.); Heard v. State, 887 S.W.2d 94, 98-99 (Tex. App.—Texarkana 1994, pet.
ref'd). The State will argue that like those cases, Smith’s voluntary actions
resulted in him not being present.
However, in this case we have a strong differentiating factor. In the
other cases, the evidence and resulting implication was that the defendants
could not be present because they had to receive medical treatment. Here,
the evidence was the opposite: that although Smith was injured, he was
willing and able to forego further treatment and attend trial but was
prevented from attending trial not by the injury or treatment, but by the
guards who kept him at the hospital.
Accordingly, there is evidence in the appellate record that Smith’s
attempted suicide resulted in his broken knee and being taken to the
hospital. However, there is also evidence in the appellate record that
Smith remained at the hospital against his will and wanted to forego
further treatment in order to attend the trial. Regardless, Smith was not
able to do so, not because of the broken knee, but because he was at the
hospital against his will.
37
Harmful Error
An error must affect the substantial rights of the accused to be
harmful. See Tex. R. App. P. 44.2(b). 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 (Tex. Crim. App. 1997)
(citing Tex. R. App. P. 44.2(b)). Alternatively, error is harmless if the error
"did not influence the jury, or had but a slight effect." Johnson v. State, 967
S.W.2d 410, 417 (Tex. Crim. App. 1998). The appellant does not bear the
burden to establish such harmful error. Schutz v. State, 63 S.W.3d 442, 444
(Tex. Crim. App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App.
2001). Rather, it is the responsibility of the appellate court to assess harm
after reviewing the record. Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim.
App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).
Some courts have interpreted this to mean that a defendant must
establish that presence at the missed portion of the trial bears a reasonably
substantial relationship to the opportunity to defend the case. See e.g. In re
Commitment of Young, 410 S.W.3d 542, 553 (Tex. App.—Beaumont 2013, no
pet.)(citing Jasper v. State, 61 S.W.3d 413, 422-24 (Tex. Crim. App.2001)
(defendant's absence when jurors' excuses heard was harmless); Hodges v.
State, 116 S.W.3d 289, 296-97 (Tex. App.—Corpus Christi 2003, pet. ref'd)
(defendant's absence during peremptory strikes harmless where defendant
later waived jury); Bath v. State, 951 S.W.2d 11, 22-23 (Tex. App.—Corpus
38
Christi 1997, pet. ref'd) (defendant's absence when venire member
qualified and juror exemptions heard was harmless); Weber v. State, 829
S.W.2d 394, 395-97 (Tex. App.—Beaumont 1992, no pet.) (defendant's
absence when juror excuses heard was harmless); Sumrell v. State, 326
S.W.3d 621, 624-27 (Tex. App.—Dallas 2009), pet. dism'd improvidently
granted, 320 S.W.3d 338 (Tex. Crim. App. 2010) (defendant's absence during
individual questioning of jurors who expressed bias was harmful); Bledsoe
v. State, 936 S.W.2d 350, 351 (Tex. App.—El Paso 1996, no writ)
(defendant's absence during individual voir dire was harmful).
Here, the defense desired to call Smith to testify during the
punishment phase of the trial. (R.R. vol. 20 pg. 126). However, because
Smith was not present, he could not testify. (R.R. vol. 20 pg. 126).
Accordingly, Smith’s absence during the punishment phase of the trial
certainly bore a substantial relationship to the opportunity to defend the
case.
39
Issue 4: The court admitted a DNA testing report without allowing
Smith the opportunity to cross examine the serologist who
actually conducted the testing. Accordingly, Smith was denied
his right to confrontation guaranteed by the Sixth Amendment.
The court admitted a DNA testing report which was testimonial in
nature implicating Smith’s Sixth Amendment right to confrontation.
However, that right was violated when Smith was denied the opportunity
to cross examine the serologist who actually conducted the testing.
Preservation of Error
To preserve a complaint for appellate review, a party must generally
have presented to the trial court a timely request, objection, or motion that
states the specific grounds for the desired ruling, if they are not apparent
from the context of the request, objection, or motion. See Tex. R. App. P.
33.1(a). Smith objected, and later renewed the same objection, to the DNA
testing results being admitted on the testimony of a forensic scientist
supervisor, as opposed to the serologist who conducted the actual DNA
testing. (R.R. vol. 15 pg. 183, vol. 16 pg. 5). That objection was overruled
both times. (R.R. vol. 15 pg. 184, vol. 16 pg. 6).
Standard of Review
An appellate court should review de novo the trial court's ruling
admitting evidence over a confrontation objection. See Wall v. State, 184
40
S.W.3d 730, 742 (Tex. Crim. App. 2006).
Law and Application
The court admitted a DNA testing report which was testimonial in
nature implicating Smith’s Sixth Amendment right to confrontation.
However, that right was violated when Smith was denied the opportunity
to cross examine the serologist who actually conducted the testing.
The State admitted a DNA testing report linking Smith to sexual
contact with Shelby Jones. (R.R. vol. 22 Ex. 15). In support of the DNA
testing report, the State presented the testimony of Kristy Link, a DPS
crime lab DNA section supervisor. (R.R. vol. 15 pg. 177-179). Link testified
that the lab received known DNA samples from Shelby Jones and Smith
and compared them against DNA samples obtained from Shelby Jones in
her sexual assault examination. (R.R. vol. 15 pg. 181-187). Link testified
that she was the supervisor, but was assisted by at least two other people.
(R.R. vol. 15 pg. 182-4). More specifically, Link testified that she did not do
the serology testing personally, she merely supervised an employee who
did so. (R.R. vol. 15 pg. 187). Link then developed the DNA profiles which
were passed on to an analyst. (R.R. vol. 15 pg. 186).
Smith complained that he was unable to cross examine the serologist
who actually performed the test. (R.R. vol. 15 pg. 183, vol. 16 pg. 5).
Therefore, the issue presented is whether Smith should be allowed to cross
41
examine the serologist who actually performed the serology testing, or was
Smith’s cross examination of the supervisor of the person who actually
conducted the testing sufficient confrontation.
A defendant has a Sixth Amendment constitutional right to confront
the witnesses against him for evidence which is testimonial in nature.
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004). In Hamilton v. State, the San Antonio court of appeals concluded
that DNA test reports were testimonial in nature and therefore implicated
the defendant’s Sixth Amendment confrontation right. Hamilton v. State,
300 S.W.3d 14, 21 (Tex. App.—San Antonio 2009, pet. ref'd)(citing
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314
(2009)). Likewise, the DNA testing results in this case are testimonial in
nature and implicated Smith’s Sixth Amendment confrontation rights.
The next issue to address is whether Smith’s confrontation right was
satisfied by the supervisor of the serology testing as opposed to the actual
person who performed the serology testing. In Hamilton v. State, the San
Antonio court of appeals concluded that a supervisor’s testimony as to the
findings of a non-testifying serologist and DNA analyst was error. 300
S.W.3d 14, 22 (Tex. App.—San Antonio 2009, pet. ref'd). Here then, as in
Hamilton, the court erred in allowing Link to testify in lieu of the actual
person who performed the serology testing.
42
Harmful Error
An error must affect the substantial rights of the accused to be
harmful. See Tex. R. App. P. 44.2(b). 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 (Tex. Crim. App. 1997)
(citing Tex. R. App. P. 44.2(b)). Alternatively, error is harmless if the error
"did not influence the jury, or had but a slight effect." Johnson v. State, 967
S.W.2d 410, 417 (Tex. Crim. App. 1998). The appellant does not bear the
burden to establish such harmful error. Schutz v. State, 63 S.W.3d 442, 444
(Tex. Crim. App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App.
2001). Rather, it is the responsibility of the appellate court to assess harm
after reviewing the record. Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim.
App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).
In such an analysis, the court should consider (1) the importance of
the evidence to the State's case; (2) whether the evidence was cumulative of
other evidence; (3) the presence or absence of other evidence corroborating
or contradicting the evidence on material points; and (4) the overall
strength of the State's case. Hamilton v. State, 300 S.W.3d 14, 22 (Tex.
App.—San Antonio 2009, pet. ref'd). Additionally, the court should
consider any other factor in the record that may shed light on the probable
impact of the trial court's error on the minds of average jurors. Hamilton v.
State, 300 S.W.3d 14, 22 (Tex. App.—San Antonio 2009, pet. ref'd).
43
The DNA test report was the most important evidence in the case
against Smith. Shelby Jones testified as to the sexual assault. (R.R. vol. 16
pg. 123-157). This allegation was denied by Smith. (R.R. vol. 17 pg. 239-
240). Thus, the only objective direct evidence to support Shelby Jones’
claims was the DNA test results. (R.R. vol. 22 ex. 10). As such, the
erroneous inclusion of such evidence was extremely prejudicial to Smith.
44
PRAYER
WHEREFORE, premises considered, Shawn Smith respectfully
requests that this conviction be reversed and judgment rendered in his
favor, that the conviction be reversed and a new trial granted, or for such
other and further relief to which Appellant may be entitled.
Respectfully Submitted,
Miller, James, Miller & Hornsby, L.L.P.
By:______________________________
Troy Hornsby
Texas Bar Number 00790919
1725 Galleria Oaks Drive
Texarkana, Texas 75503
troy.hornsby@gmail.com
903.794.2711, f. 903.792.1276
Attorney for Appellant Shawn Smith
45
CERTIFICATE OF SERVICE
This is to certify that on January 7, 2015, a true and correct copy of the
above and foregoing Appellant’s Brief has been forwarded by U.S. mail on
all counsel of record and interested party listed below:
Appellant State's Attorney
Shawn Smith Kelley Gossett Crisp
TDC #01950344 Bowie County Dist. Atty's Office
Byrd Unit 601 Main Street
21 FM 247 Texarkana, Texas 75501
Huntsville, Texas 77320
Defendant's Trial Attorney
Trial Court Judge Will Williams
Honorable Bobby Lockhart Bowie County
102nd District Judge Public Defender's Office
Bi-State Justice Building 424 W. Broad Street
100 North State Line Avenue Texarkana, Texas 75501
Texarkana, Texas 75501
___________________________________
Troy Hornsby
46
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4, the undersigned
counsel certifies that, exclusive of the exempted portions in Texas Rule of
Appellate Procedure 9.4(i)(1), this brief contains 6,873 words (less than
15,000), based upon the word count of the WordPerfect program used to
prepare the document.
_______________________________
Troy Hornsby
47