Smith v. State
| Decision Date | 28 June 2012 |
| Docket Number | No. 11-10-00171-CR,11-10-00171-CR |
| Parties | STANDRIDGE SMITH, Appellant v. STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
The jury convicted Standridge Smith of felony murder through injury to a child and assessed punishment at twenty-five years confinement in the Institutional Division of the Texas Department of Criminal Justice and a fine of $5,000. See TEX. PENAL CODE ANN. § 19.02(b)(3) (West 2011). The victim was appellant's daughter, J.S. We modify and affirm.
Appellant argues in seven issues on appeal: (1) the trial court committed reversible error by denying appellant's request for additional experts; (2) the trial court committed reversible error by denying appellant's motion to suppress the written statement taken by law enforcement and admitting it into evidence; (3) the trial court committed reversible error by denyingappellant's motion to quash; (4) the trial court committed reversible error by admitting evidence of additional injuries received by the alleged victim prior to the date of the events the subject of the indictment; (5) the trial court committed reversible error in allowing the State to call undisclosed expert witnesses in rebuttal; (6) appellant was deprived of his right to effective assistance of counsel by trial counsels' failure to request jury questions on lesser included offenses; and (7) the trial court committed reversible error by allowing a fragmented portion of testimony to be read back to the jury during deliberation without indication or explanation of the portions removed.
In his first issue, appellant contends that the trial court committed reversible error when it denied appellant's request for additional experts. Prior to trial, appellant filed a motion requesting the appointment of Dr. Elliot B. Oppenheim as an expert. The trial court granted appellant's motion. Two months later, appellant filed a motion requesting appointment of additional experts. In support of the motion, appellant attached a letter from Dr. Oppenheim in which Dr. Oppenheim stated that he believed appellant would need three additional experts: (1) a forensic pathologist in order to challenge the State's primary expert, the medical examiner; (2) an obstetrician, neonatologist, or perinatologist to testify regarding the preexisting conditions that likely contributed to J.S.'s death; and (3) a pediatric radiologist to respond to anticipated allegations of abuse derived from J.S.'s fractured clavicle. In response, the court appointed Dr. Marc Shuman, the forensic pathologist recommended in Dr. Oppenheim's letter, and released Dr. Oppenheim. Subsequently, Dr. Shuman referred appellant to Dr. John G. Galaznik, and appellant filed a motion requesting the appointment of Dr. Galaznik to replace Dr. Shuman. At trial, Dr. Galaznik testified for appellant.
When an indigent defendant makes a threshold showing that expert assistance would likely be a significant factor at trial, he is entitled to the appointment of an expert. Ake v. Oklahoma, 470 U.S. 68, 82-83, 86 (1985); Griffith v. State, 983 S.W.2d 282, 286-87 (Tex. Crim. App. 1998). To determine if appellant was entitled to the requested additional experts, three factors are relevant: (1) the private interest that will be affected by the State's action; (2) the governmental interest that will be affected if the safeguard is to be provided; and (3) the probable value of the additional or substitute procedural safeguards that are sought and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided. Ake, 470 U.S. at 77; Rey v. State, 897 S.W.2d 333, 337 (Tex. Crim. App. 1995). We review the trial court's ruling for an abuse of discretion. Griffith, 983 S.W.2d at 287. The purpose is to ensurethat the indigent defendant has access to a competent expert to assist in the evaluation of his defense. Ake, 470 U.S. at 77; Griffith, 983 S.W.2d at 286. The type of expert and the nature and complexity of the field of specialty must be considered in deciding if an expert will be helpful or a significant factor at trial. Griffith, 983 S.W.2d at 287. This does not mean that a defendant is entitled to an expert of his "personal liking" or that he has the right to choose which expert is appointed. Id. at 286.
In appellant's motion requesting appointment of three additional experts, appellant argues that the "additional expert witnesses are absolutely necessary to present and address the issues before this Court and to 'mount a meaningful defense which will withstand constitutional Due Process legal muster.'" Additionally, the motion provided that appointment was necessary to insure appellant "receives his rights to effective assistance of counsel, cross-examination and confrontation of witnesses, and compulsory process." Appellant argues that the effect of the trial court's refusal to appoint the two additional experts is reflected by his allegation that Dr. Galaznik's research and testimony, while extensive and thorough, was easily vulnerable to attack by the State by virtue of its generality and by virtue of his being a mere "paper expert."
As discussed above, appellant was not limited to one expert during the course of this case. The trial court approved the appointment of three experts: Dr. Oppenheim, Dr. Shuman, and Dr. Galaznik. At trial, Dr. Galaznik offered testimony refuting the State's expert's opinion on cause of death and cause of injury to J.S.'s clavicle. There is no evidence that Dr. Galaznik could not or did not adequately assist appellant. Under these circumstances, the trial court did not err when it denied appellant's request for the appointment of additional experts. Moreover, the record does not reflect that, after the trial court appointed Dr. Galaznik, appellant made any further requests for experts. We overrule Issue One.
In his second issue, appellant contends that the trial court committed reversible error when it denied appellant's motion to suppress the written statement that he gave to law enforcement. We review a trial court's ruling on a motion to suppress for an abuse of discretion. Lujan v. State, 331 S.W.3d 768, 771 (Tex. Crim. App. 2011); Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). In reviewing a ruling on a motion to suppress, we apply a bifurcated standard of review. Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). First, we afford almost total deference to the trial court's determination of historical facts. Valtierra, 310 S.W.3d at 447. The trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given theirtestimony. Id.; Garza v. State, 213 S.W.3d 338, 346 (Tex. Crim. App. 2007). Second, we review de novo the trial court's application of law to facts. Hubert, 312 S.W.3d at 559; Valtierra, 310 S.W.3d at 447. We will sustain the trial court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Valtierra, 310 S.W.3d at 447-48; State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).
Appellant contends that his statement was not voluntary for the following reasons: (1) he was operating on minimal sleep from a period of several days; (2) he was isolated and pressed relentlessly for three and one-half hours; and (3) he was distraught with grief from the recent loss of his daughter, J.S. Under such conditions, appellant claims, he could not have "knowingly, intelligently, and voluntarily" waived his rights under Article 38.22 of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 38.22 (West 2005). A defendant's statement may be used in evidence against him if he made it freely and voluntarily and without compulsion or persuasion. Id. art. 38.21. "The determination of whether a confession is voluntary is based on an examination of the totality of circumstances surrounding its acquisition." Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000) (quoting Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995)). A statement may be involuntary "if there was official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker." State v. Terrazas, 4 S.W.3d 720, 723 (Tex. Crim. App. 1999) (quoting Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995)). The ultimate question for a court to answer when it determines voluntariness is "whether the suspect's will was overborne" by the conduct of the state actor. Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997). Some relevant circumstances include the length of the detention and interrogation, whether the defendant was permitted access to his family or attorney, and the presence or absence of physical brutality. Gomes v. State, 9 S.W.3d 373, 377 (Tex. App.—Houston [14th Dist.] 1999, pet. ref'd) (citing Armstrong v. State, 718 S.W.2d 686 (Tex. Crim. App. 1985), overruled on other grounds by Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998)). A defendant's characteristics and status, as well as the conduct of the police, are also important concerns. Haynes v. Washington, 373 U.S. 503, 517 (1963).
Before the trial, the trial court held a hearing on appellant's motion to suppress to determine the voluntariness and admissibility of appellant's confession. See Jackson v. Denno, 378 U.S. 368, 376-77, 392-93 (1964). The trial court found that appellant had freely andvoluntarily made his statement and that the statement would be admissible against appellant. At the hearing, Detective Terrill Lynn Perkins Jr. testified that, following J.S.'s death, he coordinated with the Air Force to arrange a meeting with appellant. After a meeting was arranged with appellant's first sergeant, Detective Perkins went to...
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