Ex Parte Smith, AP-74228.

• Citation: 185 S.W.3d 455
• Decision Date: 01 March 2006
• Docket Number: NO. AP-74228.,AP-74228.
• Parties: Ex parte LaRoyce Lathair SMITH, Applicant.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

185 S.W.3d 455

Ex parte LaRoyce Lathair SMITH, Applicant.

NO. AP-74228.

Court of Criminal Appeals of Texas.

March 1, 2006.

Jordan Steiker, Austin, for Appellant.

Kim Schaefer, Asst. District Atty., Dallas, Matthew Paul, State's Atty., Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the Court in which KELLER, P.J., and PRICE, WOMACK, and JOHNSON, JJ., joined.

This death-penalty habeas corpus case is on remand from the United States Supreme Court.¹ Our original opinion held that the Penry² jury nullification instruction given in applicant's case was not constitutional error because: (1) applicant's mitigation evidence was not "constitutionally relevant"; (2) his evidence was encompassed by the two statutory special issues, thus no special instruction was necessary; and (3) if a special instruction was necessary, the nullification instruction sufficed.³ The Supreme Court reversed this Court's decision on the first and third issues; arguably, it did not approve of our resolution of the second issue. We now hold that, assuming that the statutory special issues were not wholly sufficient to allow the jury to give "full consideration and full effect to mitigating circumstances,"⁴ applicant has failed to show "egregious harm" under Almanza⁵ for this unobjected-to jury-charge error. We therefore deny relief.

1.

In 1991, a jury convicted applicant of capital murder for the robbery-murder of Jennifer Soto. Because an analysis of all of the evidence offered at trial is an essential component of any Almanza "egregious harm" analysis, we set out that evidence in detail.

First, we review the evidence from the guilt stage. The State's evidence showed that Jennifer Soto was a 19-year-old girl who worked at Taco Bell. She was a hard worker and had been promoted to shift manager two weeks before her death. Applicant had worked at Taco Bell with her. On the evening of January 7, 1991, she was "closing manager" and Travis Brown was working with her. He was waiting for her to finish her office paperwork because she was going to give him a ride home.

Meanwhile, Nickles Lewis and two other friends came to applicant's house. Applicant told them that he was going to rob Taco Bell because he needed "some money for court." The four youths left applicant's house on foot, but they were soon picked up by Kevin Shaw and one of Shaw's friends who were riding around in Shaw's car. They stopped at another house so applicant could get a gun, and applicant said, "We're going to hit T.B." Applicant knew Jennifer would be working that night. He told one of his cohorts, "If she see[s] my face, I will have to kill her."

Kevin Shaw parked the car containing the six youths across the street from the Taco Bell. Applicant, Kevin Shaw, and a third member of the group, Devario Smith, got out of the car and paced outside the Taco Bell, waiting for Jennifer to come out of the back door. They waited 45 minutes, but she did not come out. When "things didn't go right," they all got back into the car and started to leave, but applicant said, "No, man, it got to be done. It got to be done." They turned around and went back.

At about 11:30 p.m., applicant knocked on the front door and asked to use the phone because his car had broken down. Travis, without opening the door, said that the Taco Bell was closed and that applicant could not come in. Applicant then asked to see Jennifer and when she came to the door, he repeated his request. Jennifer opened the door partway and applicant hugged her as he, Kevin, and Devario went inside. She showed applicant the telephone and went back to the office to finish up her paperwork while applicant's two companions stayed in the front with Travis.

After he pretended to finish his telephone call, applicant came back to the front and told Travis that "they were going to rob the place." Kevin told Travis, "If you keep your mouth shut, you'll get a cut of the money." Applicant went back, by himself, into the office where Jennifer was working.

Shortly thereafter, Travis heard yelling. When he went to investigate, he saw applicant holding Jennifer in a headlock. He was "pistol-whipping" her on the head with the butt of a gun. He kept hitting her until the gun's handle fell off. Applicant demanded the combination of the safe, but Jennifer screamed, "Call Tina, call Tina." She did not know the combination. Travis saw applicant step back, point the gun at Jennifer's back and shoot her at point blank range. She cried, "God, please don't let me die."

Applicant then went into the kitchen area, grabbed a butcher knife, and came back to Jennifer, continuing to demand the combination. He stabbed her underneath the left breast to make her tell him the combination, but when she did not give him the information he wanted, he stabbed her in the thigh, then the abdomen, then the head. The State characterized these as "torture type wounds." Finally, he sliced her neck, severing the jugular vein. Both the gunshot and the neck wound were fatal.

Applicant, still carrying the bloody knife, walked out to the front. Travis jumped out of the way, saying "Hey, I don't know your face. I've never seen you. I don't know anything." Applicant replied, "Hey, I know your face and I'll kill you." After applicant and his two cohorts left, Travis called 911.

Applicant testified on his own behalf and stated that he was nineteen years old at the time of the robbery-murder and that he was, by the time of trial, the father of a baby boy. He stated that when Kevin Shaw drove by on January 9, 1991, he stopped and asked applicant and his friends if applicant's "homeboy" would let Kevin use his gun. Applicant went to his friend's apartment and asked him if Kevin could buy his gun. The friend agreed and gave applicant his gun, which was in a bag. Nobody said anything about going to the Taco Bell until the car arrived there.

Then, according to applicant, Kevin suddenly announced, "I'm fixing to rob Taco Bell." Kevin explained to applicant, "Travis is going to open the back door so I can rob it." Applicant and two others waited around for a while, but Travis did not come outside, so they all left, but Kevin insisted that they return. According to applicant, Kevin knocked on the door, Travis opened it, and Kevin, Devario, and applicant entered. Jennifer never came to the front of the store. Applicant stayed in the front with Travis until he heard a shot, and then he went back to the office and saw Kevin hitting Jennifer with the gun until it broke. Kevin told Jennifer to open the safe, but she didn't know the combination. Then Kevin picked up a butcher knife and started stabbing Jennifer. Applicant grabbed the bloody knife away from Kevin and started out of the store with it. Travis said, "Damn, man, that wasn't even in it." Applicant testified that Travis's statement meant that killing Jennifer was not part of the "plan" to rob the Taco Bell that Travis was involved in.

Applicant said that he knew Jennifer, liked her, and thought that "no one should die the way she died." According to applicant, all of the State's witnesses, including his friends who were with him that night, lied about the robbery-murder at Taco Bell. He was a "Good Samaritan" who tried to save Jennifer by grabbing Kevin's knife.

The jury rejected applicant's version of the events and convicted him of capital murder.

During the punishment phase, the State offered evidence that, two days after murdering Jennifer, applicant had physically assaulted Chris Standmier, the former boyfriend of applicant's then-current girlfriend. Chris testified that he was home for the Christmas holidays from Prairie View University. He was standing in his mother's apartment parking lot when two cars pulled up. Applicant got out of one of them, took out a baseball bat and proceeded to beat Chris with it. Applicant hit Chris so hard that the bat broke in two. As Chris lay on the ground, applicant went back to the car, pulled out a Tech 9 pistol from the car, cocked it and told Chris, "N____, get back from me. I'm going to kill you. I'll kill you." Chris said, "You got me." Then applicant got back into the car and they drove off. Chris went to the hospital.

The State also offered evidence that two months before the capital murder, officers arrested applicant on outstanding warrants as he was walking down the middle of the street in a high-crime area. While booking him into the jail, officers found ten ziplock baggies of crack cocaine in his underwear.

Several of applicant's teachers testified about applicant's conduct in school. One teacher, who taught applicant economics and math, testified that applicant was "taunting" in class and used abrasive, obscene language. He was sometimes mean and sometimes "docile." This high school teacher said that applicant seemed "threatening"—as if he would hurt the teacher—when he insisted that the teacher give him a passing grade in economics. The teacher was scared, in part because he was positive that applicant had earlier stolen his car's tires and rims.

Applicant's middle school vice-principal testified that he had suspended applicant from school for disruptive behavior in the classroom, possible weapons violations, throwing objects at teachers, and profanity. He had a bad reputation for peaceful and law-abiding activity and for respect toward authority.

A Dallas police officer, a member of the Youth Division at applicant's high school, testified that he found a Tech 9 in a locker shared by applicant and Nickles Lewis. Nickles told the officer that the gun was his, but applicant had five bullets in a bag he was carrying at the time. The officer thought applicant had a gun also, but he was unable to find it.

The defense called nineteen witnesses during its punishment case. Fifteen of those were character witnesses. Applicant's middle school assistant principal testified that he had "8,000 problems at school, but applicant wasn't one of them," beca...