Smith v. State

• Decision Date: 12 August 2014
• Docket Number: No. 14–12–00790–CR.,14–12–00790–CR.
• Parties: Jason Alexander SMITH, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

436 S.W.3d 353

Jason Alexander SMITH, Appellant

v.The STATE of Texas, Appellee.

No. 14–12–00790–CR.

Court of Appeals of Texas, Houston (14th Dist.).

May 29, 2014.

Rehearing Overruled Aug. 12, 2014.

Stephen A. Doggett, Richmond, for Appellant.

Gail Kikawa McConnell, Richmond, for the State.

Panel consists of Chief Justice FROST and Justices JAMISON and WISE.

OPINION

MARTHA HILL JAMISON, Justice.

In six issues, appellant Jason Alexander Smith appeals his felony conviction for murder. Appellant complains (1) he was denied a speedy trial; (2) there was insufficient corroborating evidence to support accomplice testimony; (3) he was denied the right to confront and cross-examine the expert who performed DNA tests; (4) the trial court admitted hearsay testimony; (5) the trial court limited cross-examination of the accomplice witness; and (6) the jury charge allowed an improper non-unanimous verdict. We affirm.

Factual Background

Appellant and Hiro Hariram met through a mutual friend. They instantly struck up a friendship. For a time, appellant lived in a garage apartment with Hariram and his girlfriend Yvette. The apartment was attached to the home where Yvette's mother and Roberto Cabrera lived. Hariram and Yvette subsequently married and moved into their own apartment, at which time appellant moved into another apartment.¹

Cabrera told the police investigator that, while appellant lived in the garage apartment, someone had been going into Cabrera's bedroom while he was not there. Cabrera suspected appellant was the culprit. When appellant moved away, these occurrences stopped. Cabrera owned a .357 magnum revolver with the initials M.J.W. on the handle that he kept in his unlocked nightstand.

Hariram testified at trial to the following events. On August 8, 2003, Hariram returned home in a rental car from a business trip to Atlanta. During the return drive, Hariram received two separate phone calls from appellant and the complainant, Daryl Hayes, regarding a marijuana drug deal they wanted to conduct. Hariram had acted as the middleman for Hayes in several prior drug deals. Hayes told Hariram he was not comfortable around appellant and wanted Hariram to be present for the transaction. Hariram picked up appellant at his apartment and went to meet Hayes. Appellant purchased one pound of marijuana from Hayes, and Hayes told appellant more marijuana was available to purchase.

Hariram and appellant thereafter went to Hariram's apartment. Hariram and appellant took Yvette's yellow Nissan Xterra to meet Hayes and negotiate the purchase of the additional marijuana. Once a deal was reached, appellant left in the Xterra, purportedly to deliver to his buyer the one pound of previously-purchased marijuana. The Xterra keychain included a key to Cabrera's home. Approximately twenty minutes later, appellant called Hariram and asked Hariram and Hayes to meet him at Cabrera's home.

Hariram and Hayes subsequently picked up appellant at Cabrera's home in Hayes's black Mitsubishi. They had placed the remaining marijuana in a duffle bag in the trunk of the car. They then left in the Mitsubishi to meet appellant's buyer. Appellant was in the backseat behind Hayes, who was driving. Hariram was in the passenger seat. Only appellant knew where they were supposed to be going and provided the directions. On the way, an argument arose between appellant and Hayes. Appellant allegedly was angry that Hayes required Hariram to be present during their drug transactions. A gun then discharged, the car picked up speed, and Hayes slumped over the steering wheel. Hariram attempted to gain control of the car, which hit a fence behind a house and came to rest against a telephone pole.

A neighbor testified she was in her home and heard the collision. She looked out the window and saw a hubcap roll into her yard. She went outside, saw a man in an orange shirt across the street, and heard him yelling to call 911. She went back inside and did so. She then went back outside and saw a second man “wearing a white T-shirt, jeans, and a blue cap backwards on his head.” One of the men grabbed something out of the trunk, and they both “took off running down the street.” Hariram and Yvette both testified that Hariram had been wearing an orange shirt that day, and Hariram testified that appellant was wearing a blue bandana and a light “grayish” t-shirt.

After the car crashed, Hariram saw appellant place a gun with a brown and chrome handle in his waistband. Hariram also noticed appellant had retrieved the duffle bag from the trunk. Forgetting the Xterra keys, Hariram fled on foot with appellant to appellant's apartment. When Hariram asked appellant why he shot Hayes, appellant allegedly responded, “[H]e was talking shit,” and appellant “had to put God in his life.” Hariram then called Yvette, who picked him up, and they went to a hotel where Hariram called an attorney.

Hariram and his attorney contacted the police, and Hariram led police to appellant's apartment, where they recovered, among other things, six shell casings from a .357 magnum revolver hidden in a shoe. Hariram also led police to the location of the revolver allegedly used in the crime. According to Hariram, the evening of the murder, he received a phone call from a friend who said appellant had given him the revolver. Hariram retrieved the revolver and gave it to his brother for safekeeping in the brother's apartment, where police recovered it. Police later determined through ballistics testing that five of the six shell casings found in appellant's apartment were fired from the revolver.²

Appellant fled to Kansas after the murder. His apartment was vacant when police searched it, and appellant never returned to his job in Houston after the murder. Almost two years after the murder, appellant was arrested in Kansas and thereafter extradited to Texas. Subsequently, a Fort Bend County Sheriff's deputy conducted a human-scent lineup with three bloodhounds. Officers had collected scent samples implicating appellant from various locations and items inside Hayes's car, a white t-shirt found on or near the trunk of the vehicle, and the revolver.

Procedural History

Appellant was released on bond, and nine months later, a grand jury indicted him for murder.³ He filed a pre-trial motion for discovery, production, and a Kelly⁴ hearing on the scent-lineup evidence. After a hearing, the trial court denied the motion to suppress the scent-lineup evidence. Appellant thereafter filed a motion to exclude all testimony and evidence in connection with the scent lineup, which the trial court denied at another hearing. The trial court subsequently held a non-evidentiary hearing on appellant's motion to reconsider the ruling on the scent-lineup evidence. The trial court orally granted the motion for reconsideration and ruled the scent-lineup evidence would be excluded, setting aside the previous ruling. The State filed its first motion for continuance on the same day for want of a witness. The trial court granted the continuance.

The State filed its second motion for continuance five days after the trial court signed the order to exclude the scent-lineup evidence. The State sought that continuance because its motion to reconsider the ruling on the scent-lineup evidence had not yet been heard by the trial court. The trial court granted the motion for continuance but denied the motion for reconsideration. The State appealed the denial of the motion for reconsideration. This court affirmed, and mandate issued on November 21, 2011. See State v. Smith, 335 S.W.3d 706 (Tex.App.-Houston [14th Dist.] 2011, pet. ref'd).

Appellant's jury trial commenced eight months later.⁵ At trial, the State introduced testimony regarding test results of DNA obtained from certain items.⁶ The analyst who performed the DNA testing did not testify at trial. Instead, the laboratory director testified. The forensic report was not offered or admitted into evidence. Appellant objected to the testimony on the basis that it would violate his Sixth Amendment right to confront and cross-examine the analyst who performed the tests and prepared the results. The trial court overruled the objection.

A jury found appellant guilty of murder as charged in the re-indictment of April 2, 2012, and the trial court sentenced appellant to sixty years' imprisonment, in accordance with the jury's verdict.

Discussion

I. No Violation of Right to Speedy Trial

In his first issue, appellant contends that he was deprived of his right to a speedy trial because his case was tried more than seven years after he was arrested. The right of an accused to a speedy trial is guaranteed through the Sixth Amendment to the United States Constitution. Zamorano v. State, 84 S.W.3d 643, 647 (Tex.Crim.App.2002). In addition, Article I, section 10 of the Texas Constitution guarantees the accused in all criminal prosecutions the right to a speedy and public trial. Id.

We analyze a speedy trial claim on an ad hoc basis by applying a fact-specific balancing test under Barker v. Wingo of the following four factors: (1) length of delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) the prejudice inflicted on the defendant by the delay. 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Henson v. State, 407 S.W.3d 764, 767 (Tex.Crim.App.2013). ⁷ No single factor is necessaryor sufficient to establish a violation of the right to a speedy trial; instead, the court must weigh the conduct of the prosecution and defendant using a balancing test of the four factors. Barker, 407 U.S. at 530, 533, 92 S.Ct. 2182; Cantu v. State, 253 S.W.3d 273, 281 (Tex.Crim.App.2008).

The State must satisfy its burden of justifying the length of the delay while the defendant must meet his burden of proving the assertion of the right and showing prejudice. Cantu, 253 S.W.3d at 280. The reasons proffered by the State to justify any amount of delay serve to determine how...