Smith v. State

• Decision Date: 11 June 2019
• Docket Number: NO. 03-17-00694-CR,03-17-00694-CR
• Parties: Jerel Smith, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

Jerel Smith, Appellant v. The State of Texas, Appellee

NO. 03-17-00694-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

June 11, 2019

FROM THE 147TH DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-DC-16-301628, THE HONORABLE CLIFFORD A. BROWN, JUDGE PRESIDING

MEMORANDUM OPINION

Following a bench trial, the trial court convicted Jerel Smith of the second-degree felony offenses of aggravated assault with a deadly weapon and aggravated assault causing serious bodily injury to another. See Tex. Penal Code § 22.02(a)(1), (2). The trial court assessed punishment at confinement for nine years in the Institutional Division of the Texas Department of Criminal Justice for each offense and ordered the sentences to run concurrently. See id. §12.33 (setting punishment range for second-degree felonies). Appellant raises six points of error on appeal, challenging various trial court rulings and contending that he was denied a fair trial and received ineffective assistance of counsel. For the following reasons, we affirm the trial court's judgment of conviction for aggravated assault with a deadly weapon, but we reverse and vacate the judgment of conviction for aggravated assault causing serious bodily injury to another.

Background

Appellant was indicted in September 2016 for aggravated assault with a deadly weapon (count I) and aggravated assault causing serious bodily injury (count II). See Tex. Penal Code § 22.02(a)(1), (2). The indictment alleged the same conduct for both counts—"striking James Perry in the face and head with [appellant's] fist and hand." The alleged deadly weapon in count I was appellant's "fist and hand." The trial court thereafter appointed counsel for appellant.

The case was set on the jury docket for July 2017, but it was removed from the docket after a hearing in June 2017. During that hearing, appellant complained to the trial court about his court-appointed counsel, representing to the trial court that his attorney had "done nothing but lie to [him]." Appellant informed the trial court that he did not want her to represent him and that he would rather represent himself. In response, his appointed counsel moved to withdraw, and the trial court "reluctantly" granted the request, explaining to appellant that "a lot of times people just don't get along with their lawyers" and that the trial court could not "just because someone doesn't get along reappoint." Finding "exigent circumstances," the trial court also appointed new counsel to represent appellant. The trial court explained to appellant that the new appointment would necessitate a delay in the trial, and appellant responded, "That's fine and dandy." Appellant's subsequently appointed counsel represented him from that point until the bench trial's conclusion.

At hearings in July and August 2017, appellant informed the trial court that he did not want his subsequently appointed counsel to represent him, stating that they did "not get along whatsoever" or "see anything eye to eye," and that he wanted to represent himself. After the trialcourt admonished appellant of the risks of self-representation,¹ appellant changed his mind, stating to the trial court that he did not want to represent himself but wanted "full cooperation" from his appointed counsel. The trial court then asked appointed counsel if he had "any problem continuing to work with" appellant, and appointed counsel responded that he did not. Thus, appellant's appointed counsel continued to represent him.

The bench trial occurred in October 2017. The evidence before the trial court during the guilt/innocence phase showed that, on August 20, 2016, appellant struck James Perry with his fist and hand, breaking Perry's jaw in two places. The State's witnesses included Perry, Perry's mother, a police officer who met with Perry at the hospital and prepared a report, and Ebon Johnson who was appellant's roommate at the time of the incident and an eyewitness to the incident. Perry identified appellant as the person who punched him in the jaw and testified that his injuries from the punch required him to have surgery and his jaw wired shut for approximately eight weeks. Perry denied that he had a weapon or "put [his] hands on [appellant] at all" and testified that appellant punched him after he requested a ride home from Johnson, who was also giving appellant a ride home. Johnson's testimony about the incident was consistent with Perry's testimony, including testifying that appellant punched Perry. Johnson denied that Perry had a weapon or was yelling or threatening appellant in any way. The exhibits included photographs of Perry depicting his injuries and copies of his medical records. The trial court found appellant guilty of both counts of aggravated assault.

The punishment phase of the trial occurred the following day. The State's witnesses included police officers, a woman who had dated appellant, two district clerk employees, and Frank-Lin Longoria whom appellant had pressed charges against for an alleged assault in January 2016. The defense witness was appellant. The State's witnesses testified about incidents involving appellant in which he was violent or threatening. The evidence showed that appellant assaulted the woman in August and November 2015,² "sucker-punched [Longoria] in the face" during the incident that occurred in January 2016, and threatened to "kill" Longoria in May 2017 after appellant became aware that the State had dismissed appellant's charges against Longoria.³ In his testimony, appellant provided his version of the incidents described by the State's witnesses. He denied that he assaulted the woman, testified that he was the victim in the incident with Longoria because Longoria "deliberately ran [appellant] over" with Longoria's car, and that the employees of the district clerk's office "perjured" themselves.

During a recess between witnesses in the punishment phase of the trial, appellant was "fully restrained." In open court without appellant present, the trial court explained:

And the reason, just for the record, that the defendant is not present at this time is because he has been a little unsettled to the point where he was agitated, and that to begin this proceeding he had to be restrained in leg restraints. And prior to going to the next witness, he has been observed that he was pointing at his attorney, [the trial attorney].

And it was suggested by the deputies, based on [appellant's] agitation and his propensity to have outbursts, that [appellant] be fully restrained—and the Court agreed—so as not to risk him assaulting [his trial attorney]—or anyone else, for that matter. And so he will be back out here in restraints, and I will admonish him when he comes out.

After appellant returned to the courtroom, the trial court noted for the record that appellant was "now fully restrained" and asked appellant to "just calm down" after stating to appellant the court's concerns based on its prior observations that appellant was "getting a little agitated and actually pointing at [his] attorney."

At the conclusion of the punishment phase, the trial court sentenced appellant to nine years for each count of aggravated assault, with the sentences to run concurrently. After sentencing appellant, the trial court denied appellant's motion for new trial, granted his trial attorney's motion to withdraw, and appointed appellate counsel. Appellant's appellate counsel thereafter filed an amended motion for new trial that was supported by attachments and asserted that appellant did not receive effective assistance of counsel. The attachments to the motion included a five-page printout from "TechShare.Defense"; his trial attorney's motion to withdraw and the order granting the motion; and an affidavit by appellant in which he listed his complaints about his trial attorney's representation.⁴ Appellant also filed a motion to set a hearing on the amended motion for new trial, and appellant's trial attorney filed an affidavit in response to the amended motion for new trial. On November 17, 2017, the trial court denied appellant's request for a hearing and the amended motion for new trial. In its order, the trial court found theaffidavit of the trial attorney credible and the affidavit of appellant not credible and stated that no hearing was required because appellant had not raised grounds that were undeterminable from the record and reasonable.

Appellant filed a bill of exception with the trial court in December 2017 with attachments, including an affidavit by his appellate attorney, another printout from the TechShare system, Perry's written statement to the police concerning the incident, an unofficial copy of an arrest warrant against Johnson from June 2017 for the first-degree offense of possession of a controlled substance with intent to deliver, an unofficial copy of the motion and order dated October 6, 2017, that dismissed the State's case against Johnson for the possession offense, and a handwritten sworn statement by appellant. In March 2018, appellant also filed in the trial court a combined motion to supplement the record, motion to compel disclosure of DMAV video,⁵ and request for hearing, affidavits, or stipulations. This motion also had attachments, including copies of audio recordings and purported emails that were exchanged between prosecutors concerning the State's case against Johnson.⁶

Analysis

Counsel's Motion to Withdraw

In his first point of error, appellant argues that the trial court erred by not holding a hearing prior to trial on his trial attorney's motion to withdraw that was filed on September 29, 2017, and that its failure to do so "leads to automatic reversal." Appellant urgesthat the trial court had a duty to conduct a hearing prior to trial because it was aware of conflicts between appellant and his attorney and knew that they both were requesting the termination of their relationship. As support for his position, appellant relies on his trial attorney's stated...