Sherry Lynn Smith v. State

NUMBER 13-05-00714-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
SHERRY LYNN SMITH, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 278th District Court
of Grimes County, Texas.
MEMORANDUM OPINION ON REMAND
Before Justices Yañez, Benavides and Vela1
Memorandum Opinion On Remand by Justice Benavides
In our original opinion in this case, we sustained appellant Sherry Lynn Smith’s
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The Honorable Linda Reyna Yañez, former Justice of this Court, did not participate in this opinion
because her term of office expired on December 31, 2010; therefore, this case, which was argued before
the panel on December 7, 2007, will be decided by the two remaining justices on the panel. See Tex. R.
App. P. 41.1(b) (“After argument, if for any reason a member of the panel cannot participate in deciding a
case, the case may be decided by the two remaining justices.”).
first two issues on appeal, reversed her judgment of conviction, and rendered a judgment
of acquittal. See Smith v. State, 286 S.W.3d 412, 438 (Tex. App.—Corpus Christi
2008), rev’d and remanded, 332 S.W.3d 425, 448 (Tex. Crim. App. 2011). The Texas
Court of Criminal Appeals reversed, holding (1) that the trial court did not err in refusing
to instruct the jury that accomplice witness Daniel “Boone” Gardner was an accomplice
as a matter of law; and (2) that sufficient evidence existed to connect Smith to the
murders as required by article 38.14 of the code of criminal procedure. Smith, 332
S.W.3d at 448. See also TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). The
court of criminal appeals remanded the case to address Smith’s remaining issues. See
Smith, 332 S.W.3d at 448. We now address the remaining three issues, which we
re-number as two,2 regarding (1) whether the trial court erred when it overruled Smith’s
objection to the court’s charge on extraneous offenses and refused to include her
specifically-requested instruction; and (2) whether the trial court erred when it denied
Smith’s motion for mistrial when the State commented on her pre-arrest silence. We
affirm.
I. BACKGROUND3
A Grimes County jury convicted Smith of capital murder in the shooting death of
her husband Carey Smith and her father-in-law Charles Smith in the early-morning hours
of December 7, 2002, as they both slept. She was sentenced to life in prison. See
TEX. PENAL CODE ANN. §§ 19.03(7)(a); 12.31(a) (West 2011).
2
See TEX. R. APP. P. 47.1.
3
As this case is on remand and the parties are familiar with the facts of the underlying cause, we
will not recite them in this opinion. See TEX. R. APP. P. 47.1. Instead, we will incorporate the background
information detailed in Texas Court of Criminal Appeals opinion. See Smith v. State, 332 S.W.3d 425,
428–38 (Tex. Crim. App. 2011). We will, however, provide supplemental background pertinent to the
issues in this appeal.
2
Prior to his murder, Carey and Smith were married for a little more than two years,
after a brief courtship. Both were retired correction officers from the Texas Department
of Criminal Justice, and witnesses described the couple’s marriage as one of
convenience rather than love. Carey and his father Charles ran a hay business on their
property, and witnesses described Charles as a widower who suffered from a variety of
maladies that required home-assisted care.
Prosecutors presented evidence and elicited testimony from a variety of
witnesses during its case-in-chief including from Smith’s ex-husband and one-time
co-defendant, Daniel “Boone” Gardner, Grimes County sheriff’s investigators, the
medical examiner, and scientific/DNA experts, who tested evidence collected from the
crime scene. More specifically, the State elicited testimony and presented
evidence—admitted for the limited purpose of showing motive and state of mind—that
Smith had taken out credit cards under Carey’s name, as well as in her own name, in
excess of tens of thousands of dollars, which she concealed from Carey.
II. EXTRANEOUS ACTS AND OFFENSES AND CHARGE ERROR
In her third and fourth issues, Smith asserts that the trial court erred when it
overruled her objection to the court’s charge and subsequently refused to include her
requested instruction that required the jury to find beyond a reasonable doubt that Smith
had committed the extraneous offenses before they could consider them for any
purposes, and that this error caused some harm requiring a reversal.
A. Standard of Review and Applicable Law
We review jury charge issues under the standard set forth in article 36.19 of the
code of criminal procedure as interpreted by Ngo v. State, 175 S.W.3d 738 (Tex. Crim.
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Ohio App. 2005) (en banc). See TEX. CODE CRIM. PROC. ANN. art. 36.19 (West 2006). “Our
first duty in analyzing a jury-charge issue is to decide whether error exists.” See Ngo,
175 S.W.3d at 743 (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App.
2003) (en banc)). If we find error, we analyze that error for harm, depending on
whether the defendant preserved error by objection. Id. If a defendant properly
objected to the charge, we will reverse for jury-charge error if we find “some harm” to a
defendant’s rights. Id. However, if a defendant failed to object or stated that he had
no objection to the charge, we will not reverse for the jury-charge error unless the record
shows “egregious harm” to the defendant. Id. at 743–44.
Extraneous acts used to show a person’s character or character traits are
generally inadmissible to prove action in conformity with the current offense, but if its
offer is used to prove motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident, it is admissible, provided that reasonable notice of its
introduction is given to the accused. See TEX. R. EVID. 404. Further, during the
prosecution of a murder, the state or defendant:
shall be permitted to offer testimony as to all relevant facts and
circumstances surrounding the killing and the previous relationship existing
between the accused and the deceased, together with all relevant facts
and circumstances going to show the condition of the mind of the accused
at the time of the offense.
TEX. CODE CRIM. PROC. ANN. art. 38.36 (West 2005). If extraneous acts are deemed
admissible by the trial court, “the jurors must be instructed about the limits on their use of
that extraneous [act] if the defendant so requests.” Ex parte Varelas, 45 S.W.3d 627,
631 (Tex. Crim. App. 2001) (en banc). Furthermore, if a defendant requests a limiting
instruction to the admitted extraneous acts, she is entitled to one. See id. A trial court
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errs when it fails to give a requested limiting instruction in this situation. See id. (citing
Abdnor v. State (Abdnor II), 808 S.W.2d 476, 478 (Tex. Crim. App. 1991)). Finally,
when extraneous offenses and acts are admitted for a limited purpose, a defendant is
entitled, during the guilt/innocence phase of the trial to request an instruction in the
charge that jurors are not to consider extraneous acts or offenses admitted for a limited
purpose unless they believe beyond a reasonable doubt that those extraneous acts were
committed by the defendant. See Varelas, 45 S.W.3d at 631–32 (citing George v.
State, 890 S.W.2d 73, 76 (Tex. Crim. App. 1994) (en banc)). Likewise, if a defendant’s
counsel requests an instruction for the jury that they “could not consider extraneous act
evidence unless they believed beyond a reasonable doubt that the [defendant]
committed those acts, the requested charge should have been given.” Varelas, 45
S.W.3d at 631.
B. Discussion
The following portion of the charge was provided to the jury regarding extraneous
offenses/acts:
2. The word “evidence” as used in this Charge means the testimony of
the witnesses and exhibits admitted as evidence by the Court. In arriving
at your verdict, consider only the testimony introduced here under oath and
such exhibits, if any, as have been admitted as evidence under the rulings
of the Court. Statements made by the attorneys are not evidence. In
your deliberations, you will not consider or discuss anything that is not
represented by the evidence in this case. You must disregard any
testimony or exhibit the Court has stricken or not admitted. Evidence
admitted for a limited purpose must be considered for that purpose only.
Before the court’s charge was read to the jury, Smith’s counsel objected to the
Court’s charge stating, in pertinent part:
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DEFENSE COUNSEL: Number four. The Defendant objects that this
Charge fails to include a limiting instruction
regarding certain extraneous matters that were
introduced before the jury which showed motive
or state of mind.
More specifically, there was evidence of
possible violations of the law involving credit
card abuse and misuse of credit cards which
were extraneous matters or acts of misconduct
for which the Court gave a limiting instruction at
the time they were introduced into evidence.
But the Court has failed in its Charge to include
a limiting instruction limiting the jury’s
consideration of such extraneous offenses or
acts of misconduct to the purpose or reason for
which they were introduced. And they were
not introduced and should not be considered by
the jury unless first they were believed beyond
a reasonable doubt to have occurred and,
second, they can only be considered for the
limited purpose of either motive or state of mind
for which the State specifically informed the
Court they were introducing them for. So we
object to the Charge not having a limiting
instruction appearing therein.
....
THE COURT: Now, on the question of limiting instruction,
limiting the use of evidence for the purpose for
which it was to be admitted. I would refer you
to the last sentence in paragraph two which
says “evidence admitted for a limited purpose
must be considered for that purpose only.” Did
you see that?
DEFENSE COUNSEL: I did see that, Your Honor.
THE COURT: Okay. And I believe after every piece of
evidence that was admitted for a limited
purpose that the jury was instructed that they
would consider it only for the purpose that it
was offered, which I believe was motive at that
time.
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....
I’m not going to change.
....
All of your objections are overruled.
Smith argues that the trial court erred in its charge to the jury regarding
extraneous acts of credit card abuse because it did not require the jury to find beyond a
reasonable doubt that Smith committed the extraneous acts before it could consider
those acts for any purpose. We agree. If a defendant requests a reasonable doubt
instruction regarding extraneous acts in the court’s charge, the defendant is entitled to it.
See Varelas, 45 S.W.3d at 631–32; George, 890 S.W.2d at 76. Failure to include the
reasonable doubt instruction amounts to error by the trial court. See Varelas, 45
S.W.3d at 631–32. The record in this case clearly shows that Smith’s counsel
requested that the trial court include the reasonable doubt instruction, and that request
was denied by the trial court. We respectfully disagree with the trial court’s position that
the charge sufficiently addressed Smith’s objections. A limiting instruction of
extraneous evidence is separate and distinct from the reasonable doubt instruction
requested by Smith’s counsel for the jury charge. Compare Abdnor II, 808 S.W.2d at
478 (noting the trial court’s error for not including a requested limiting instruction on
evidence of defendant’s extraneous offenses admitted to show prior inconsistent
statements), with George, 890 S.W.2d at 76 (holding that a separate instruction is
required, if requested by a defendant, from the trial court to the jury to not consider
extraneous acts/offenses, unless it believes that the defendant committed those
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acts/offenses beyond a reasonable doubt). Accordingly, we conclude that the trial court
erred for not including the requested George instruction in its charge.
The record indicates that Smith’s counsel objected to the charge error; thus, we
will analyze the error to determine whether “some harm” was placed on Smith’s rights to
require reversal. See Ngo, 175 S.W.3d at 743 (citing Almanza v. State, 686 S.W.2d
157, 171 (Tex. Crim. App. 1984) (en banc)). To satisfy our harm analysis, the record
must show that a defendant has “suffered actual, rather than merely theoretical, harm
from a jury instruction error.” Id. at 750 (citing Almanza, 686 S.W.2d at 174); see
Dickey v. State, 22 S.W.3d 490, 492 (Tex. Crim. App. 1999) (en banc) (citing Airline v.
State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986) (en banc)). “[P]resence of any
harm, regardless of degree, is sufficient to require a reversal of the conviction.” Dickey,
22 S.W.3d at 492. In our review, we determine whether the error was calculated to
injure the rights of the defendant examined “in light of the entire jury charge, the state of
the evidence, including the contested issues and weight of probative evidence, the
argument of counsel, and any other relevant information revealed by the record of the
trial as a whole.” Almanza, 686 S.W.2d at 171; see TEX. CODE CRIM. PROC. ANN. art.
36.19 (West 2006).
Here, Smith argues that the charge itself, which included only a general
limited-purpose instruction of the extraneous acts evidence, gave the jury no guidance
as to how to determine if the extraneous acts were committed and left the jury with no
choice but to conclude that Smith had committed the extraneous offenses. We
disagree. The State directs us to the record in which the trial court admonished the jury
during the trial to consider the credit-card evidence solely for the purpose of motive, if
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they so believed it showed motive. The trial court stressed to the jury that the mere fact
that the credit-card evidence was admitted for the limited purpose of proving motive did
not mean that it did, in fact, prove motive. The charge, again, reiterated that point—
that is, the evidence was admitted for a limited purpose and that they could only consider
it for a limited purpose, if they believed it occurred to prove that limited purpose.
Next, the jury heard sufficient evidence that Smith incurred credit card debt in
Carey’s name, without Carey’s knowledge, and struggled to pay off the debt. Evidence
supporting the State’s theory of motive weighed in the prosecution’s favor based on the
credit card records and testimony from Smith and Boone’s daughter Tori Sword, Smith’s
ex-husband Boone, and Smith’s friend Niki Johnson. The jury had the choice, based on
the evidence, to disbelieve the State’s theory of credit card abuse to prove motive for
capital murder. As such, the credit card evidence, admitted for its limited purpose, did
not undermine Smith’s defense so as to cause harm. See Abdnor v. State, 871 S.W.2d
726, 740–41 (Tex. Crim. App. 1994) (en banc).
Smith further argues that the State’s focus on the credit card evidence during
closing arguments demonstrated the State’s heavy reliance on that evidence to prove its
case without ever telling the jury that this alleged credit card abuse had to be found
beyond a reasonable doubt. The State’s argument was simply that—argument, not
evidence. The trial court’s charge admonished the jury of that fact, as well. It was
undisputed that the State relied on the credit card evidence to prove its case because it
was offered to prove Smith’s motive for the murders. Again, during trial and in the
court’s charge, the trial court instructed the jury to consider the credit card evidence
solely for that limited purpose, if it chose to believe the State’s theory. Smith’s reliance
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on Abdnor to argue that the State’s references to the alleged credit card abuse during
closing arguments were “partisan comments” are misguided, because the jury was
admonished by a limiting instruction during trial and to an extent in the charge that they
should consider the admitted evidence solely for its limited purpose. See Abdnor, 871
S.W.2d at 740. Here, unlike Abdnor, a limiting instruction was given to the jurors. Id.
See Ray v. State, 764 S.W.2d 406, 414 (Tex. App.—Houston [14th Dist.] 1988, pet.
ref’d) (referencing the presumption stated in Rose v. State, 752 S.W.2d 529, 554 (Tex.
Crim. App. 1988) that the jury follows the trial court’s instructions).
Accordingly, we conclude that the trial court’s charge error was harmless. While
the charge was incomplete, it did not give the jury the unfettered ability to give unlimited
weight to the extraneous acts so as to injure Smith’s rights, and “an erroneous or
incomplete jury charge . . . does not result in automatic reversal of a conviction.”
Abdnor, 871 S.W.2d at 731. Instead, it gave the jury a limited window of how to
consider the evidence and for what purpose. Smith’s third and fourth issues are
overruled.
III. PRE-ARREST SILENCE
In her final issue, Smith contends that the trial court committed reversible error
when it denied her motion for mistrial, when the State commented on Smith’s pre-arrest
silence during closing argument.
A. Standard of Review
We are required to reverse a judgment of conviction or punishment if the record in
a criminal case reveals constitutional error, subject to a harmless error review, if we
determine beyond a reasonable doubt that the error contributed to the conviction or
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punishment of the defendant. See TEX. R. APP. P. 44.2(a). “A trial court’s denial of a
motion for mistrial is reviewed under an abuse of discretion standard.” Simpson v.
State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003) (citing Wood v. State, 18 S.W.3d
642, 648 (Tex. Crim. App. 2000)).
B. Discussion
The portion of the record in which Smith appeals involves comments made during
the State’s closing argument. The following colloquy took place:
PROSECUTOR: ....
I know they made her mad, but it’s because she
wasn’t wanting to talk about any of this they had
found and she knew she was caught and they
knew. They found the credit cards and they
knew they found the reason and she shut
down. She knew she was on the hot seat.
And she didn’t say look, I made a mistake—
DEFENSE COUNSEL: Judge, Your Honor, I have to object. May I
approach the bench?
(Discussion at the bench out of hearing)
THE COURT: Ladies and gentlemen, you will disregard the
last statements of [the prosecutor].
DEFENSE COUNSEL: Judge, because that was a comment on the
right to remain silent I’m going to request that
the Court make that instruction which it’s done
and I think the prejudicial effect of that
comment cannot be cured by the instruction
and request a mistrial.
THE COURT: Overruled.
The first question in this analysis turns on whether the State’s comment on
Smith’s pre-arrest silence amounted to constitutional error. See TEX. R. APP. P. 44.2(a).
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Courts in Texas have held that “pre-arrest silence is a constitutionally permissible area of
inquiry.” Waldo v. State, 746 S.W.2d 750, 755 (Tex. Crim. App. 1988) (en banc) (citing
Jenkins v. Anderson, 447 U.S. 231, 238 (1980)). Thus, because this issue on appeal
does not involve a constitutional error, we will abandon our rule 44.2(a) inquiry and apply
the abuse of discretion standard of review set forth in Simpson. See 119 S.W.3d at
272.
A mistrial is appropriate for “‘highly prejudicial and incurable errors,’” such as
those that are “‘clearly prejudicial to the defendant and are of such character as to
suggest the impossibility of withdrawing the impression produced on the minds of the
jurors.’” Id. (quoting Wood, 18 S.W.3d at 648). “Ordinarily, a prompt instruction to
disregard will cure error . . .” and not amount to an abuse of discretion, if the trial court
denies the motion for mistrial. Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App.
2000) (en banc).
In this case, assuming without deciding that the comment by the State objected by
Smith was error, it was not one that was “highly prejudicial” or “incurable” requiring a
mistrial because it was a brief discussion and one that could be withdrawn from the
minds of the jurors. See Simpson, 119 S.W.3d at 272. Further, again, assuming
without deciding that the prosecutor’s comments amounted to error, the trial court in this
case promptly admonished the jury to disregard the statements made by the State’s
prosecutor. We conclude that the trial court did not commit reversible error or abuse its
discretion in denying Smith’s motion for mistrial. Smith’s fifth issue is overruled.
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IV. CONCLUSION
We affirm the judgment of the trial court.
__________________________
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
12th day of April, 2012.
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