Smith v. State

• Decision Date: 13 November 2008
• Docket Number: No. 13-05-714-CR.,13-05-714-CR.
• Citation: Smith v. State, 286 S.W.3d 412 (Tex. App. 2008)
• Parties: Sherry Lynn SMITH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

286 S.W.3d 412

Sherry Lynn SMITH, Appellant, v. The STATE of Texas, Appellee.

No. 13-05-714-CR.

Court of Appeals of Texas, Corpus Christi-Edinburg.

November 13, 2008.

Rehearing Overruled January 29, 2009.

William F. Carter, Bryan, for appellant.

Tuck McLain, Deputy Dist. Atty., Anderson, for appellee.

Before Justices YAÑEZ, BENAVIDES, and VELA.

OPINION

Opinion by Justice BENAVIDES.

Appellant, Sherry Lynn Smith, was convicted of capital murder and was sentenced to life in prison. TEX. PENAL CODE ANN. § 19.03(a)(7)(A) (Vernon Supp.2008). Her conviction was based on the testimony of an alleged accomplice, Daniel "Boone" Gardner. On appeal, Sherry argues that, excluding Boone's testimony, the evidence was insufficient to connect her to the crime. See TEX.CODE CRIM. PROC. ANN. art. 38.14 (Vernon 2005). Additionally, she argues that the trial court erroneously instructed the jury to determine whether Boone was an accomplice as a matter of fact, when it should have instructed the jury that Boone was an accomplice as a matter of law. By her third and fourth issues, Sherry argues that the trial court failed to instruct the jury that it could not consider extraneous offense evidence unless the jury believed beyond a reasonable doubt that Sherry had committed the extraneous offense. In her fifth issue, Sherry argues that the trial court should have granted a mistrial when the State commented during closing argument on her pre-arrest silence.

We hold that Boone was an accomplice as a matter of law and that the trial court erred when it instructed the jury to determine whether Boone was an accomplice. We also hold that the non-accomplice testimony in this case does not adequately connect Sherry to the crime. Accordingly, we reverse the judgment of conviction and render a judgment of acquittal, and we do not reach Sherry's third, fourth, and fifth issues. TEX.R.APP. P. 47.1.¹

I. Accomplice as a Matter of Law or as a Matter of Fact?

Sherry was married to Carey Smith. She lived with Carey and his ailing father, Charles Smith, at their home in Grimes County, Texas. In the early morning hours of Saturday, December 7, 2002, Carey and Charles were shot and killed with a high-powered rifle. At approximately 4:30 p.m., Sherry discovered their bodies at the home and called 9-1-1 to report the two deaths. Sherry became a suspect and was indicted for capital murder.

Boone is Sherry's ex-husband and the father of her children, and he testified during Sherry's jury trial. Sherry's first argument is that, excluding Boone's testimony, the evidence is insufficient to connect her to the crime. In her second issue, Sherry argues that the trial court erred in instructing the jury to determine whether Boone was an accomplice as a matter of fact. The State urges this Court to first consider whether Boone was an accomplice as a matter of fact or as a matter of law. We will indulge the State.²

A. Sherry's Reports to the Police

Officer Johnny Martinez testified that he was dispatched to the Smith residence on Saturday, December 7. After he arrived at the Smith residence, he learned that Charles and Carey Smith had been killed. Officer Martinez's supervisor asked him to interview Sherry, so he asked her to accompany him to the sheriff's office for an interview. Sherry agreed to go with him. The interview began at 9:19 p.m. that night and was tape recorded. Officer Martinez testified that Sherry did not express any reservation about talking to him. He testified that before the interview began, he did not discuss any of the particulars of the offenses with Sherry.

Texas Ranger Bryant Wells was present at the interview. He testified that Sherry told the officers that she had been home the night of December 6, babysitting her granddaughter, Logan, until approximately 12:30 a.m. on December 7. Sherry's daughter, Tori Sword, is Logan's mother. After Tori picked Logan up from the Smith residence, Sherry went to bed at 1:00 a.m.

Sherry left the Smith residence at 4:00 a.m. on December 7 and went to the Wal-Mart in Huntsville, Texas. She told the officers that Carey and Charles were asleep when she left. Ranger Wells testified that he retrieved a surveillance videotape from Wal-Mart. Scott Carson, a Wal-Mart employee, testified as to the contents of the videotape. The videotape from Wal-Mart shows that Sherry arrived at 5:15 a.m. in the Wal-Mart parking lot. She remained at Wal-Mart until 6:42 a.m.

Sherry told the officers that after leaving Wal-Mart, she went to the home of her friend, Joretta Mitchell, in Houston. Sherry and Mitchell then went to Northeast Medical Hospital in Humble, Texas, to visit Sherry's cousin, Donnie Helton. Mitchell confirmed that Sherry arrived at her house at about 7:30 a.m. on December 7, and that she went with Sherry to the hospital.

After visiting her cousin, Sherry left the hospital at 1:00 p.m. and drove to the Cingular phone store in Huntsville to purchase a new cell phone. Sherry then went to the Diamond Shamrock where Tori worked. Sherry stated that she went there to pick up Logan so that she could babysit her while Tori worked. Boone was also at the Diamond Shamrock at the same time. Officer Martinez testified that he viewed a videotape from a Diamond Shamrock that was taken on December 7, the day of the murders, at approximately 4:00 p.m. The video shows Sherry, Tori, Logan, and Boone at the Diamond Shamrock.

Sherry told the officers that she left the Diamond Shamrock with Logan and went to Tori's home to pick up some medicine for Logan. She told the officers that she saw Boone again at Tori's house. After that, Sherry left and went to the Smith residence with Logan. She testified that she entered the Smith residence through the garage and walked into the living area. Sherry placed Logan on the floor in the living area with a toy puzzle she had purchased from Wal-Mart. She then went to Carey's bedroom.

Sherry told the officers that when she entered Carey's room, she saw Carey in his bed and noticed that blood was coming out of his nose. She shut the door and then went to Charles's bedroom. She told the officers that as she approached Charles, she believed he was dead. She then went back into the living room and called 9-1-1.

Carolyn Greenwood, a dispatcher for the Grimes County Sheriff's Department, testified that she received a 9-1-1 call from Sherry at 4:30 on December 7. Sherry reported that Carey and Charles were dead, and she was very upset. Sherry was so upset, in fact, that Greenwood had difficulty understanding her. Greenwood asked Sergeant Jim Adkins to speak with Sherry in an effort to calm her down and to prevent her from hyperventilating.

During the interview, the officers questioned Sherry about her relationship with Carey. She told the officers that she had married Carey because "he needed somebody and she needed to be needed." She told the officers that she and Carey slept in separate rooms. She also told the officers that Charles was in poor health.

Ranger Wells testified that Sherry did not cry during the interview. He testified that her demeanor "changed at times." He testified that on occasion, she laughed but also became very serious. At the end of the interview, Sherry agreed to turn over the clothes she had been wearing the day of the murders to Officer Martinez for testing.

On Wednesday December 11, 2002, Officer Martinez and Ranger Wells asked Sherry to come to the station for another interview. A viewing at the funeral home for Carey and Charles was scheduled for later that day, but Sherry nonetheless voluntarily complied with the officers' request. The officers questioned Sherry about her activities on the night of December 6 and the day of December 7, and her statement was consistent with her December 7 statement.

Ranger Wells testified that at some point during the interview, he began to question Sherry about her finances. The officers had learned that Sherry had credit card debt in Carey's name. Sherry admitted that the debt was hers and that Carey did not know about the debt. Initially, Sherry was cooperative. But later in the interview, she became "upset at the process and was less cooperative." At the end of the interview, Sherry got up and left.

B. Boone's Testimony

Boone testified that he married Sherry in 1976. He remained married to her for three years before they were divorced. Sherry and Boone have two children, Tori and Heidi. After their divorce, Boone raised the children, and he remarried.

Boone stated that in the summer of 2002, Sherry was living in Grimes County with Carey and Charles. Boone was staying with Tori, who was single, was raising a child, and was having financial problems. Sherry and Carey had helped Tori financially in the past. Boone testified that during the summer of 2002, Sherry told him that she was helping Tori financially, but Carey did not know the full extent of her assistance. Boone testified that Sherry had obtained credit cards and that Carey did not know about the credit cards.

Boone testified that Sherry said that she was not happy with her marriage to Carey, and she felt "smothered" and "didn't have a life." Sherry told Boone that she would not have anywhere to go if she left Carey. He stated that Sherry was concerned about what Carey would do if he discovered her credit card debt.

Boone said that Sherry called him one day in September 2002 and stated she was having problems with Tori. Sherry told him that she was stressed by having to assist Tori financially, but that she had a solution for the problems. At that time, she did not elaborate.

Boone testified that later that fall, Sherry and Boone were at Tori's home in the front room. Tori was at home, but she was not part of the conversation between Sherry and Boone. Sherry told Boone she was frustrated with her finances and with her marriage. Boone testified that "she just said sometimes she was so frustrated she wanted to kill them." Boone then clarified that, at...