Jack Andrew Smith v. the State of Texas

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-21-00330-CR
Jack Andrew SMITH,
Appellant
v.
The STATE of Texas,
Appellee
From the 437th Judicial District Court, Bexar County, Texas
Trial Court No. 2019CR10392
Honorable Melisa C. Skinner, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Patricia O. Alvarez, Justice
Irene Rios, Justice
Beth Watkins, Justice
Delivered and Filed: December 7, 2022
AFFIRMED
Appellant Jack Andrew Smith pleaded guilty to a jury. Both Smith and the State presented
evidence to the jury for sentencing. At the close of evidence, Smith suggested that the jury should
be charged with deliberating on the issue of guilt because, during testimony, Smith had denied an
essential element of the charges against him. The trial court rejected Smith’s request because
Smith had not taken steps to withdraw his guilty plea. We affirm.
04-21-00330-CR
BACKGROUND
Smith was charged with “shooting at and in the direction of” police officers when they
responded to a domestic disturbance at his home. Before trial, Smith indicated to the court that he
would plead guilty to the jury. At trial, Smith completed a plea colloquy with the trial court and
then offered the following testimony to the jury:
Smith: I take ownership for what I did.
Defense Attorney: Okay.
Smith: Very sorry for it.
Defense Attorney: And let me ask you this—you’ve listened to the
deputies who testified here today—is that a fairly accurate portrayal
of what went on that night?
Smith: Yes, it is.
Defense Attorney: Okay. Let me ask you this: Did you—were you
aiming at anybody? Were you shooting at anybody in particular or
at anybody at all?
Smith: No, I was not.
On cross-examination, the prosecutor reiterated Smith’s guilty plea:
Prosecutor: Mr. Smith, let’s just get one thing clear, you did plead
guilty to three counts of aggravated assault against a public servant;
am I right?
Smith: Yes.
Prosecutor: Okay. And those counts say that—they state that you
threatened imminent bodily injury to the complaints by shooting at
and in the direction of them with a deadly weapon. Isn’t that what
you pled guilty to?
Smith: Yes, it is.
Prosecutor: And three different times you pled guilty, correct?
Smith: That is correct.
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But when the prosecutor asked Smith where he was shooting and whether he was aware
the police were outside, Smith denied shooting toward people outside and denied knowing that
police were present:
Prosecutor: Can you tell the jury where you were aiming this target
rifle when you were shooting that day?
Smith: Up to the ceiling.
Prosecutor: You didn’t aim it out the window?
Smith: I did not.
Prosecutor: Or out the walls?
Smith: No.
Prosecutor: But you knew there was officers out there, correct?
Smith: I did not.
…
Prosecutor: And do you remember where you were aiming this
pistol on that day?
Smith: Up in the ceiling and the walls, on the floor.
Prosecutor: Out the window?
Smith: No.
Prosecutor: Out the door?
Smith: I don’t recall firing that weapon out the door, no.
Prosecutor: You do not?
Smith: I do not recall firing that weapon out the door, no.
Prosecutor: You recall firing it that day?
Smith: I do recall firing it that day in the house. I was just shooting
around randomly in the house.
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Prosecutor: Well, when you were just shooting around randomly, do
you recall there being officers outside?
Smith: I did not know there were officers outside.
This testimony gave the trial court pause. First, neither the counts against Smith nor Smith
in his guilty plea were specific about his mens rea:
Prosecutor: I mean, remind the jury again that you did plead guilty
to shooting at or near officers and you knew you were shooting at or
near officers.
Defense Attorney: Objection, Judge, he actually pled guilty to
recklessly.
Prosecutor: Your Honor, if we can approach?
Trial Court: Yes, go ahead.
(At the bench.)
Trial Court: Yeah, it was read to—I track these.
Defense Attorney: I’m sorry?
Trial Court: I track these while they’re reading the indictments, and
it was intentionally and knowingly and recklessly, so there is
intentional in each one of the counts.
But the bigger issue for the trial court was that Smith denied knowing that officers were
present, despite the fact that the counts he pleaded guilty to required him to know it:
Trial Court: Here’s the biggest problem. Even if it’s reckless, he’s
denying that they’re police officers, that he knew that the police
officers were even there.
…
[T]o have pled to this, it says the defendant knew the complainant
was a public servant, namely, a peace officer, while in completing
of his law—discharging his duty as public servant, and the
complainant exercised official power and performance of an official
duty as a public servant. And he is now testifying that he didn’t even
know officers were right there.
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The trial court and the parties discussed the ramifications of moving forward with the
proceedings, concluding that the best course of action was to continue with the presentation of
evidence and arguments to the jury. Smith did not attempt to withdraw his plea. At the end of the
day, after both parties rested, the trial court informed the jury that it would be directed to find
Smith guilty based on his guilty plea.
When trial resumed the following morning, Smith suggested that the jury should not be
directed to find him guilty since his testimony belied an element of the charges. The trial court
disagreed, since Smith had not moved to withdraw his guilty plea; rather, Smith had persisted in
pleading guilty. Accordingly, the trial court instructed the jury as planned, and Smith was
convicted.
This appeal followed.
GUILTY PLEA: LEGAL SUFFICIENCY REVIEW?
A. Parties’ Arguments
Smith argues that his guilty plea was legally insufficient to support a conviction because
he denied knowing that the complainants in the case were police officers. The State argues that
Smith is not entitled to a legal sufficiency review because he persisted in pleading guilty.
B. Law
In felony cases[,] a plea of guilty before the jury admits the existence
of all necessary elements to establish guilt, and in such cases, the
introduction of testimony by the State is to enable the jury to
intelligently exercise the discretion which the law vests in them
touching the penalty to be assessed.
Ex parte Williams, 703 S.W.2d 674, 678 (Tex. Crim. App. 1986) (citing Darden v. State, 430
S.W.2d 494, 495 (Tex. Crim. App. 1968)); accord Ex parte Martin, 747 S.W.2d 789, 792 (Tex.
Crim. App. 1988). In such cases there is no question of the sufficiency of the evidence on appeal
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or on collateral attack. Ex parte Taylor, 480 S.W.2d 692 (Tex. Crim. App. 1972) (citing Brinson
v. State, 570 S.W.2d 937, 938–39 (Tex. Crim. App. 1978)).
If a guilty-pleading defendant decides mid-trial that he wants to
compel the trial court to evaluate the evidence under the reasonable
doubt standard, he must seek to withdraw the plea of guilty. If he
fails to do so, he is precluded from having an appellate court review
the evidence against him under the traditional legal and factual
sufficiency analyses.
See McGill v. State, 200 S.W.3d 325, 331 (Tex. App.—Dallas 2006, no pet.) (citing Simpson v.
State, 67 S.W.3d 327, 329 (Tex. App.—Texarkana 2001, no pet.)).
C. Analysis
In this case, Smith admitted his guilt to the jury and waived his guilt-phase trial rights in a
plea colloquy with the trial court. By doing so, he waived his right to complain of the legal
sufficiency of the evidence supporting his conviction. See, e.g., Ex parte Williams, 703 S.W.2d at
678. The record does not show that Smith attempted to withdraw his guilty plea. See McGill, 200
S.W.3d at 331. Therefore, we overrule Smith’s first issue.
INSTRUCTING JURY TO CONVICT
A. Parties’ Arguments
Smith argues that the trial court erred when it instructed the jury to convict him because
his testimony should have been construed as an attempt to withdraw his guilty plea. The State
argues that the trial court followed the correct procedure after Smith admitted guilt to the jury and
did not expressly attempt to withdraw his admission of guilt at any point.
B. Law
It is well-established that in a felony case when a defendant has
entered a plea of guilty before the jury, because there remains no
issue of guilt to be determined, it is proper for the trial court to
instruct the jury to return a verdict of guilty, charge the jury on the
law on the punishment issues, and then instruct them to decide only
those issues.
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Liendo v. State, No. 03-97-00114-CR, 1998 WL 54024, at *2 (Tex. App.—Austin Feb. 12, 1998,
no pet.) (not designated for publication) (citing Holland v. State, 761 S.W.2d 307, 313 (Tex. Crim.
App. 1988)).
As mentioned in the last section, “[i]f a guilty-pleading defendant decides mid-trial that he
wants to compel the trial court to evaluate the evidence under the reasonable doubt standard, he
must seek to withdraw the plea of guilty.” McGill, 200 S.W.3d at 331 (citing Simpson, 67 S.W.3d
at 329). It is possible for a defendant to “convey[]…his desire to have the issue of guilt decided
by the jury” without “explicitly requesting to change their pleas from guilty to not guilty.” Mendez
v. State, 138 S.W.3d 334, 345 (Tex. Crim. App. 2004) (citing Harris v. State, 172 S.W. 975 (Tex.
Crim. App. 1915)). In Harris, the defendant “vigorously sought his right to inspect the court’s
charge, and, when he was belatedly given it, he informed the court of his desire to have the issue
of insanity submitted to the jury.” Id. at 349. But a defendant is required to take some affirmative
action if he wishes to change his plea from guilty to not guilty. Id. at 350. A trial court has no
duty to change a defendant’s plea sua sponte, and a defendant’s contradictory testimony as to the
elements of a charge are not enough to satisfy the requirement that a defendant take affirmative
steps to change his own plea of guilty if he wishes to do so:
[Mendez’s] attention was specifically called to the inconsistency
between his plea of guilty and his testimony about lack of intent or
knowledge. The inconsistency between his testimony and the other
evidence has not escaped us. The appellant did not ask to withdraw
his plea. If it had been in his interest to do so, he would have known
it.
Id.
C. Analysis
Smith convicted himself and put the facts of the case before the jury to decide the
appropriate punishment. See Williams v. State, 674 S.W.2d 315, 318 (Tex. Crim. App. 1984). In
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his testimony, Smith adopted the testimony of the deputies who testified before him. They testified
that one of the deputies had announced their presence at the scene through a loudspeaker, that a
helicopter had been dispatched and was audible overhead, and that their later investigation of the
scene revealed many bullet-holes out the front of Smith’s house.
Only when Smith was questioned at trial as to the specific elements of his actions, did he
falter in his admission. Smith presents one interpretation of his contradictory testimony—that he
was retracting his guilty plea. Contra Mendez, 138 S.W.3d at 350. Another possible interpretation
is that Smith preferred not to face the specific truth of his actions, or that he could not. 1 We do
not accept the argument that Smith’s hedging against the underlying facts actually undermined his
conviction. See id. The requirement from Mendez that Smith must take affirmative steps to
withdraw his guilty plea was not satisfied in this case by Smith’s contradictory testimony. We
overrule his complaint on appeal.
CONCLUSION
Although Smith contradicted his own testimony and brought his guilty plea under scrutiny,
he did not attempt to withdraw his plea. As a result, we conclude that the trial court did not err in
instructing the jury to convict Smith, and we decline to review his guilty plea for legal sufficiency.
We affirm the trial court’s judgment.
Patricia O. Alvarez, Justice
Do not publish
1
Smith presented expert testimony that he had been diagnosed with post-traumatic stress disorder, which can affect
both long- and short-term memory.
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