Smith v. State

• Decision Date: 18 October 1989
• Docket Number: No. 69464,69464
• Citation: 779 S.W.2d 417
• Parties: Sammie Lewis SMITH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 417

779 S.W.2d 417

Sammie Lewis SMITH, Appellant, v. The STATE of Texas, Appellee.

No. 69464.

Court of Criminal Appeals of Texas En Banc.

Oct. 18, 1989.

Sam Ogan, court appointed, Mike Carper, court appointed, Lubbock, for appellant.

Travis S. Ware, Dist. Atty. & R. Deniece Jones, Jim Bob Darnell & Brad Underwood, Asst. Dist. Attys., Lubbock, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION

CLINTON, Judge.

Appellant was convicted of the offense of capital murder under V.T.C.A. Penal Code § 19.03(a)(2). In accordance with Article 37.071, V.A.C.C.P., his punishment was assessed at death. Pursuant to that same provision, appeal of the judgment to this Court is automatic.

In the early evening of October 26, 1984, Lynn Cowan returned from work to his duplex home in Lubbock to find his wife, Shalyn, had been sexually assaulted and murdered. On the morning of November 8, 1984, appellant voluntarily appeared at the police station where, over the course of the next eight hours, he was questioned, eventually signing a confession to the rape and murder of Shalyn Cowan. At the time appellant was a 33 year old man, described variously at trial as "severe," "borderline," and "trainable" mentally retarded.

I.

Appellant does not now challenge sufficiency of the evidence to support the jury's verdict finding him guilty of the offense. However, in his fourth point of error he does contend the evidence is insufficient to support the jury's affirmative answer to the second special issue submitted at the punishment phase pursuant to Article 37.071(b)(2), supra, which inquires "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society[.]" We agree the evidence is deficient in that respect.

Analysis begins with the facts of the instant offense. Kunkle v. State, 771 S.W.2d 435, 449 (Tex.Cr.App.1986). Circumstantial evidence suggests the victim was tied with pantyhose to the headboard of her bed and sexually assaulted. She was apparently then untied and stabbed fourteen times in the chest and back, including once through the heart. In his signed confession appellant admitted: "After I raped her I decided to kill her and kind of went crazy for a few minutes." The forensic pathologist testified she would have died within a minute of sustaining the heart wound. He testified it was "a brutal death" but not "extremely" brutal. He characterized it as "a very typical sex murder." Photographs of the scene depict relatively little blood. During redirect examination of the pathologist the following colloquy occurred:

"[Q] Let me ask you this: if Shalyn were taken to the bed, tied up with these pantyhose, raped while tied up with the pantyhose, untied for whatever reason, and then stabbed to death, would that fit your observations?

A That's exactly. Otherwise there would have been blood when you reconstruct the scene. Yes.

Q And I believe you stated that, in your opinion, this was typical of a sex murder?

A Normally sex related crimes are associated with over-killing.

Q If someone wanted to cause the death one blow to the heart would do it, is that right?

A Well, let me explain that also. When a person is stabbed you have a fatal wound, and you are dying because of hypoglymia, you are losing--you are bleeding internally. What happens to you, your heart is not getting enough blood supply, is getting oxygen-poor blood, or very little amount of blood. So what happens to the heart muscle? The heart muscle starts failing. And what happens when the heart starts failing? You start going into edema, into heart failure. And what happens to that? And people start making a lot of odd noises, start foaming, and she did have that, by the way. And when that happens then normally that is the next thing, to quit that--I guess it gets into the nerves. They just over-kill at that point. They want her to stop, and they just keep on going."

From this we gather that in the mind of the State's own expert the offense for which appellant was convicted was not shocking or otherwise extraordinary even with respect to the multiple stabbing. We cannot conclude the circumstances of the offense are so heinous or evince an "aberration of character" so peculiarly "dangerous" as alone to justify an affirmative response to the second special issue. Cf. King v. State, 631 S.W.2d 486 (Tex.Cr.App.1982). It has been said that § 19.03 of the Penal Code "limits the circumstances under which the State may seek the death penalty to a small group of narrowly defined and particularly brutal offenses." Jurek v. State, 522 S.W.2d 934, at 939 (Tex.Cr.App.1975). To hold the offense itself in this cause was sufficient to prove future dangerousness would threaten to undermine the function of Article 37.071, supra, to further narrow the class of death-eligible offenders to less than all those who have been found guilty of an offense as defined under § 19.03. See Roney v. State, 632 S.W.2d 598, at 603 (Tex.Cr.App.1982).

In urging other evidence was sufficient to establish future dangerousness, the State highlights a number of events occurring in the weeks prior to the offense, while appellant was working for Lester Humphrey Pest Control. Company records reflected that on October 4, 1984, appellant obtained a passkey from the property management company which handled the Cowans' and several adjacent duplexes, and sprayed those residences. Sandra Wymore, who lived with her husband and child in the duplex next door to the Cowans, testified that at approximately this date she allowed appellant into her home to spray under the sink. Some time during the following week appellant appeared at the Wymores' door again to inquire whether he had sprayed there. When told he had, appellant left. Fifteen minutes later as she was leaving to go to the grocery store, Wymore was again approached by appellant about whether he had sprayed her unit. Arriving home later, Wymore was approached by appellant yet a third time with the same inquiry. Wymore did not see the pest control company's truck; nor did she see a spray can in appellant's possession. She testified she was "upset" by appellant's "weird" behavior.

A friend of appellant's, Linda Moore, related a conversation she had with appellant about a week before the offense in which he complained of marital problems. Appellant lamented, among other things, that he was "a hot-blooded man who wanted sex all the time," while his "wife only wanted sex once a month[.]" Also on this occasion Moore observed what could have been a knife in appellant's possession.

Finally, the State presented testimony from Richard Mills, the only witness at the punishment phase of trial. Mills testified he was a firefighter by profession, but had worked parttime in the summer of 1984 as a yardman. Sometime in late August or early September, as he was cutting grass for an apartment complex, he was approached by appellant. Appellant had a list of apartments to spray, and was looking for a particular apartment number. Mills tried to direct appellant, but appellant did not seem to understand, and soon lost interest, lighting a cigarette and striking up a conversation. In the course of the conversation appellant displayed what seemed to Mills to be an "abnormal" interest in the women lounging beside the apartment pool: "He would like gesture at them, and he would make sounds like 'oohs' and 'aahs' and things of that nature." He appeared to Mills to have "a little bit more difficulty keeping himself under control than myself or any other people that might have been in that area." Appellant confided the hope "that while he was there spraying the apartments ... that one of these girls live in, that maybe he would get lucky and one of them would want to lay him when he went inside the apartment to spray." Appellant told Mills, "it happens all the time with electricians and plumbers."

The State argues that "this particular rape/murder, along with evidence of [a]ppellant's moral character, the possibility that he was seeking out a victim, and the fact that he considered his job as a way to find women to have sex with, all provide sufficient basis to support the jury finding that there is a probability that [a]ppellant could commit a future violent act." If by his "moral character" the State refers to appellant's avowed "hot-bloodedness" and his visions of promiscuity, such evidence has no logical bearing on propensity to commit violent crime. At no point in the conversations reported by Moore and Mills did appellant ever indicate a desire for compelled sex. Fantasies about consensual sex on the job do not demonstrate a violent disposition. Moreover, to suggest appellant's whole reason for working at Lester Humphrey Pest Control, a job he kept only for a few months, was to get "lucky," distorts the record. For it was shown without contradiction that, though at best borderline retarded, with a limited attention span, appellant had managed to work all his adult life, never collecting unemployment compensation, albeit in a long succession of briefly held, unskilled jobs.

It has been suggested in our caselaw that "looking around" an area "for somebody to rape" may be considered evidence of forethought or calculation, and therefore "probative of [a criminal defendant's] propensity to commit future acts of violence." Hawkins v. State, 660 S.W.2d 65, at 82 (Tex.Cr.App.1983). It is true that appellant's "hot-blooded" nature, coupled with the presumption appellant did eventually commit the instant offense, supports an inference that on the day appellant returned to the Wymore's residence he was reconnoitering for potential victims. We note, however, that in Hawkins v. State, supra, there was substantial other evidence of future dangerousness. Moreover, whatever forethought may have gone into this offense evidently did not include murder, since appellant's...