Smith v. State

• Decision Date: 06 May 2009
• Docket Number: No. AP-75,479.,AP-75,479.
• Citation: 297 S.W.3d 260
• Parties: Demetrius Dewayne SMITH, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

297 S.W.3d 260

Demetrius Dewayne SMITH, Appellant, v. The STATE of Texas.

No. AP-75,479.

Court of Criminal Appeals of Texas.

May 6, 2009.

Rehearing Denied August 19, 2009.

Frances M. Northcutt, Houston, for Appellant.

Carol M. Cameron, Assistant District Attorney, Houston, Jeffrey L. Van Horn, State's Attorney, Austin, for State.

OPINION

MEYERS, J., delivered the opinion of the Court in which KELLER, P.J., and HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

Appellant was convicted in June 2006 of capital murder. TEX. PENAL CODE § 19.03(a). Based upon the jury's answers to the special issues set forth in Texas Code of Criminal Procedure article 37.071 §§ 2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071 § 2(g).¹ Direct appeal to this Court is automatic. Art. 37.071 § 2(h). Appellant raises twenty-six points of error, but he does not challenge the sufficiency of the evidence. After reviewing appellant's points of error, we find them to be without merit. Consequently, we affirm the trial court's judgment and sentence of death.

Appellant was convicted of murdering more than one person during the same criminal transaction. TEX. PENAL CODE § 19.03(a)(7)(A). A brief summary of the evidence reveals that appellant had been dating Tammie White, a mother of three who was separated from her husband. Appellant and White broke up in late January or early February of 2005. On the afternoon of March 24, 2005, at approximately 3:15 p.m., appellant called White on her cell phone as she, her mother, and her sister were going to the hospital to visit a relative. Appellant told White, "You think I'm playing with you, bitch? You're going to die today." White held the phone so her mother and sister could hear the threats. White hung up and appellant immediately called back, but White would not speak to him. White was not concerned about the calls.

A neighbor reported that earlier on the same day, she witnessed appellant climbing over White's patio fence. White was not home, and appellant appeared to be locked out. Then around 3:00 p.m., she saw appellant again, sitting on White's porch, but White's car was gone at the time.

Later that same day, White was home with her eleven-year-old daughter, Kristina. Kristina was playing with some neighborhood friends on the front porch, while White was in the back bedroom talking on the phone with her sister, Katherine. At approximately 6:00 p.m., appellant came up to the door. Kristina tried to stop him from entering her home, but appellant pushed her out of the way and went inside. Appellant went to the back bedroom. Over the phone, Katherine twice heard White say, "[Appellant], don't play with me." Katherine then heard gunshots and the phone went dead. Appellant shot White in the chest, neck, and head at close range.

Meanwhile, Kristina had followed appellant inside and got a knife from the kitchen. Immediately following the gunshots, Kristina came back out and told the other children that appellant had shot her mom and to run. Kristina ran around a car, dropped the knife, and got down in a ball, covering her head with her hands to protect herself. Within a minute, appellant came out of the house and approached Kristina. He then shot her twice, once through the top of the head, before running off. As he was leaving, witnesses heard appellant say that now he was going to get Tamara, referring to Kristina's fourteen-year-old sister who was not home at the time. Appellant was apprehended shortly thereafter. Tamara, who had been taken into protective custody following the threat to her life, remained unharmed.²

In points of error one through three, appellant argues that the trial court erred by denying his motion to quash and amending the indictment to insert the language, "during the same criminal transaction." He claims this violated Article 28.10, due process, and his right to a grand-jury indictment under both the federal and state constitutions. Specifically, appellant complains that the amendment, which was made before jury selection began, transformed the charged offense from two separate counts of murder to one count of capital murder. Therefore, he alleges that this altered the charge against him without proper notice.

In analyzing these issues, some background information is helpful. On March 25, 2005, appellant was charged by complaint with capital murder as follows:

[Appellant], hereafter styled the Defendant, heretofore on or about March 24, 2005, did then and there unlawfully, during the same criminal transaction, intentionally and knowingly cause the death of [K]RISTINA HARRIS by SHOOTING [HER] WITH A DEADLY WEAPON TO WIT, NAMELY A FIREARM, and intentionally and knowingly cause the death of TAMMIE HARRIS by SHOOTING [HER] WITH A DEADLY WEAPON TO WIT, NAMELY A FIREARM.

On May 23, 2005, appellant was indicted by the grand jury. In the title area of the indictment, the felony charge is listed as "CAPITAL MURDER." The body of the indictment in one paragraph states:

The duly organized Grand Jury of Harris County, Texas, presents in the District Court of Harris County, Texas, that in Harris County, Texas, [appellant], hereafter styled the Defendant, heretofore on or about March 24, 2005, did then and there unlawfully, intentionally and knowingly cause the death of KRISTINA HARRIS by SHOOTING KRISTINA HARRIS WITH A DEADLY WEAPON, NAMELY A FIREARM, and intentionally and knowingly cause the death of TAMMIE HARRIS by SHOOTING TAMMIE HARRIS WITH A DEADLY WEAPON, NAMELY A FIREARM.

On August 16, 2005, the State served its "Notice of Intent to Seek the Death Penalty." On May 4, 2006, appellant filed a Motion to Set Aside the Indictment because the Texas death penalty scheme is unconstitutional. He also filed a motion to declare the Texas death penalty scheme unconstitutional and to preclude imposition of the death penalty. These motions were denied during the initial pre-trial hearing on May 4, 2006. At this same hearing, defense counsel noted that they had been working on the mitigation issues in the case for several months. Appellant was also arraigned by the trial court. After reading the indictment, the trial court asked, "All right. [Appellant], to the offense of capital murder, how do you plead, guilty or not guilty?" Appellant pleaded "not guilty."

On May 5, 2006, the trial court heard the State's request to amend the indictment to insert the phrase, "during the same criminal transaction." Appellant objected that the indictment could not be amended under Article 28.10 because the amended indictment would charge an offense not charged in the original indictment. He argued that the original indictment charged two murders in one paragraph and that, as such, the offenses were improperly joined. He claimed that the State needed to seek re-indictment and that an amendment would also violate the due-process clause of the United States Constitution. The trial court overruled appellant's objection but allowed appellant leave to file a motion to quash the indictment. The amended indictment read:

The duly organized Grand Jury of Harris County, Texas, presents in the District Court of Harris County, Texas, that in Harris County, Texas, [Appellant], hereafter styled the Defendant, heretofore on or about March 24, 2005, did then and there unlawfully, during the same criminal transaction, intentionally and knowingly cause the death of KRISTINA HARRIS by SHOOTING KRISTINA HARRIS WITH A DEADLY WEAPON, NAMELY A FIREARM and intentionally and knowingly cause the death of TAMMIE HARRIS by SHOOTING TAMMIE HARRIS WITH A DEADLY WEAPON, NAMELY A FIREARM.

(Emphasis added to amendment handwritten on face of indictment).

Appellant's written motion argued, in pertinent part, that the indictment alleged two separate murders which statutorily would not support a death sentence; and, although the offenses were improperly joined, it was a valid indictment presenting two non-capital offenses. Therefore, under Article 28.10, the indictment could not be amended because to do so would charge appellant with a different offense. He also argued that indicting him for capital murder would violate his substantial rights to a grand jury and due process. The trial court denied appellant's motion.

The sufficiency of an indictment is a question of law and is reviewed de novo. State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App.2004) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997)). The right to notice is set forth in both the United States and Texas Constitutions. See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10. In addition, the Texas Code of Criminal Procedure provides guidelines relating to the sufficiency of an indictment. See, e.g., Articles 21.03, 21.04, and 21.11. Thus, the indictment must be specific enough to inform the defendant of the nature of the accusations against him so that he may prepare a defense. Moff, 154 S.W.3d at 601. However, the due-process requirement may be satisfied by means other than the language in the charging instrument. Kellar v. State, 108 S.W.3d 311, 313 (Tex.Crim.App.2003). When a motion to quash is overruled, a defendant suffers no harm unless he did not, in fact, receive notice of the State's theory against which he would have to defend. Id.; see also Art. 21.19 ("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").

Texas Penal Code § 19.03(a)(7) defines capital murder as murdering more than one person: (A) during the same criminal transaction; or (B) during different criminal transactions but pursuant to the same scheme or course of conduct. Murder is defined as the death of "an individual." TEX. PENAL CODE § 19.02. The original indictment on its face lists the charge as "CAPITAL MURDER," and, in a single paragraph, alleges that appellant knowingly caused the death of more...