Smith v. State, 71433

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation898 S.W.2d 838
Docket NumberNo. 71433,71433
PartiesRobert SMITH, a.k.a., Robert Lee Johnson, Appellant, v. The STATE of Texas, Appellee.
Decision Date08 March 1995

MEYERS, Judge.

Appellant was found guilty for the capital murder of James Wilcox in the course of robbery. Tex.Penal Code Ann. § 19.03(a)(2). After the jury affirmatively answered the submitted statutory special issues, the trial court sentenced appellant to death. Tex.Code Crim.Proc.Ann. art. 37.071(b). Appeal to this Court is automatic. Tex.Code Crim.Proc.Ann. art. 37.071(h). We will affirm.


Because several of appellant's complaints on appeal concern the facts of the underlying crime, a recitation of the facts is necessary. Appellant and his accomplice entered the Fayco Menswear clothing store in Houston fifteen minutes before closing. The two new "customers" wandered throughout the store, appellant finally settling upon several high priced goods. Because of his behavior and his failure to try on any of his purchases, the saleslady, Ms. Kim, became suspicious. She signaled a friend at another store that she was in trouble. Ms. Kim also picked up the phone and called the operator for help. Before Ms. Kim could speak to the operator, appellant pointed a gun at her head and told her to hang up the phone and to lay on the ground. She complied. Ms. Kim's friend arrived and was maced by appellant's accomplice when he entered.

Appellant, unable to open the cash register, ordered Ms. Kim to stand and retrieve money from the register. When she stood, Ms. Kim moved appellant's car keys which he had placed with his purchases on the counter. Appellant, unaware his keys had been moved, fled the store with money and merchandise along with his accomplice. When they had left, Ms. Kim called the police and also informed the local security guards of the robbery.

Appellant fled in the direction of a KMart two buildings away from Fayco Menswear. As appellant approached his car, Mr. Griffith, a KMart security supervisor, was approaching his auto. Appellant asked Mr. Griffith to call an ambulance because a building was on fire, pointing in the general direction of Fayco Menswear. Mr. Griffith saw no fire and thought it strange an ambulance should be called, nevertheless, he began to get into his car. A few moments later, Mr. Griffith heard appellant say, "I can't find the fucking keys. I can't find the fucking keys now." Appellant and his accomplice then exited their car and fled.

Soon after they had fled, Mr. Griffith was informed of the robbery by one of the local security guards. Mr. Griffith and the security guard got in Mr. Griffith's car and pursued the two robbers. Mr. Griffith and the guard saw appellant and his accomplice jump a fence into a nearby abandoned trailer park. They drove to an entrance where a gate had been knocked down. Approximately 12 to 15 seconds elapsed between the time the robbers jumped the fence to the time the pursuers got to the entrance. As they were exiting the car, Mr. Griffith heard a gunshot. Each man ran behind a tree for cover. From behind his tree, Mr. Griffith could hear two frantic voices from inside the park. However, he could only see shadows.

A truck engine started, its lights went on, and the truck began heading in Mr. Griffith's direction. As a warning, Mr. Griffith fired four shots into the air. The truck stopped, and its occupants exited and fled on foot. The police arrived and requested Mr. Griffith and the security guard to return to Kmart to watch the abandoned vehicle. The police then continued the pursuit.

The police brought in a K-9 unit and began tracking the robbers using a Belgian Malinois, a dog similar in appearance to a compact German Shepard. The dog and his handler tracked appellant into a wooded area where the dog was released. The dog caught up with appellant, and his handler arrested appellant as the dog was attempting to pull appellant from some brush.

Another officer approached the abandoned truck. In close proximity to the truck, a tent had partially collapsed. On part of the tent the officer discovered a dead male, subsequently identified as James Wilcox. Appellant later confessed to the murder of Wilcox. 1

In appellant's first three points of error, he complains the trial court erred in admitting the evidence of appellant's robbery of the men's clothing store during the guilt phase of the trial and in failing to properly limit the jury's consideration of such evidence. 2 Generally, "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." Tex.R.Crim.Evid. 404(b); Montgomery v. State, 810 S.W.2d 372, 386 (Tex.Crim.App.1991) (on rehearing). Rule 404(b), however, lists a number of exceptions to this rule. For instance, the evidence may be admissible to prove motive, opportunity, intent, preparation, plan knowledge, identity or absence of mistake or accident. Montgomery, 810 S.W.2d at 387; Tex.R.Crim.Evid. 404(b). This list is neither exclusive nor exhaustive. McCormick, Evidence § 190 (4th ed. 1992); Goode, Wellborn & Sharlot, 1 Texas Practice § 404.6.3, at 173 (2nd ed. 1993).

Appellant filed a motion to suppress the evidence of his extraneous offenses with the trial court. The court denied the motion noting that the "State has [the] burden to prove intent and other elements." During the charge conference, the trial court again stated that the evidence was admissible to show appellant's motive and intent. Appellant contends on appeal that the evidence was admitted as background evidence only, and is not admissible unless it is "necessary" to the jury's understanding of the offense at trial. See Rogers v. State, 853 S.W.2d 29, 32 (Tex.Crim.App.1993). Appellant argues further that the only issue at trial was whether appellant intentionally killed Wilcox and the evidence at the first aggravated robbery does not have any bearing on that issue.

We disagree. The evidence of appellant's aggravated robbery establishes his motive and helps prove his intent to kill Wilcox and steal Wilcox's truck. Appellant's flight from the first offense, the fact that his car keys had been left, and his need of an automobile to effectuate his escape from the robbery of the men's clothing store crime help explain appellant's intentions when he came upon the victim. It is arguable appellant knew that his robbery had been reported and that the police were en route to Fayco Menswear. Because the evidence of the aggravated robbery was relevant to illustrate appellant's motive and intent, the trial court did not err in admitting that evidence. Tex.R.Crim.Evid. 404(b); see Peterson v. State, 836 S.W.2d 760, 762-763 (Tex.App.--El Paso 1992, pet. ref'd) (Evidence of appellant's possession of marijuana, pistol and ammunition indicated defendant's motive and intent for his aggravated assault on peace officer). 3

In appellant's second and third point of error, he complains the trial court erred in overruling his objection to the court's charge and in failing to limit the jury's consideration of the initial robbery to a proper purpose. During the charge conference, appellant objected to the inclusion of the court's instruction limiting the jury's consideration of the extraneous offense. Appellant objected to any limiting instruction being given at trial. In fact, the only reason the limiting instruction remained after appellant requested it be removed was because the State requested it remain, doing so "to protect the defendant's rights." See Montgomery, 810 S.W.2d at 388. Because appellant did not object or request a different more limited instruction, he cannot now complain of that failure. See Tex.Code Crim.Proc.Ann. art. 36.14; Tex.R.App.Proc. 52(a). Appellant's first three points of error are overruled.

In appellant's sixteenth point of error, he argues that the State's offer of a life imprisonment in return for a guilty plea should be admissible as mitigating evidence during the punishment phase of the trial. Specifically he avers that "his refusal to accept the proffered life sentence was due to the fact that he did not kill the complainant deliberately or intentionally and was therefore mitigating." The State argues evidence of plea offers is inadmissible under Rule 408 of the Texas Rules of Criminal Evidence. See Moss v. State, 860 S.W.2d 194, 196-197 (Tex.App.--Texarkana 1993, no pet.). 4

Rule 408 provides Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice or interest or a witness or a party, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

(Emphasis added.) The U.S. Second Circuit Court of Appeals noted that reference in the Federal Rules to "a claim which was disputed as to either validity or amount" does not generally refer to criminal plea bargains. United States v. Baker, 926 F.2d 179, 180 (2nd Cir.1991). 5 Baker further held that Federal Rule 408 applies to civil matters only. Id.; compare United States v. Hays, 872 F.2d...

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