Smith v. State

• Decision Date: 12 November 1987
• Docket Number: No. 69285,69285
• Citation: 744 S.W.2d 86
• Parties: James Edward SMITH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 86

744 S.W.2d 86

James Edward SMITH, Appellant, v. The STATE of Texas, Appellee.

No. 69285.

Court of Criminal Appeals of Texas En Banc.

Nov. 12, 1987.

Randy McDonald, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and Winston E. Cochran, Jr., Roberto Gutierrez and Keno Henderson, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

McCORMICK, Judge.

Appellant was convicted of the offense of capital murder. Punishment was assessed at death.

In his first point of error, appellant contends that the evidence is insufficient to support the jury's finding that there is a probability that he would commit criminal acts of violence that would constitute a continuing threat to society.

A review of the record reveals that appellant was charged with killing Larry Don Rohus, the district manager for Union Life Insurance Company during the robbery of the company's offices. Debra Rene Wilson, the only eyewitness to the offense, testified that she and Rohus were alone in the outer office of the company at approximately 1:00 p.m. on March 7, 1983. As she was counting money in the cash drawer, she heard the sliding glass window being pulled open. Looking up, she saw a man standing outside the window, wearing a stocking mask over his head. The man, who was pointing a gun at her, cocked the gun and told her to give him all of the money. Wilson related that she instantly panicked and ran behind a filing cabinet. Rohus, who was sitting at a secretary's desk turned to Wilson and told her to give him the money. When Wilson did not move from behind the filing cabinet, Rohus got up and went to the cash drawer. He removed some of the money and holding it in his hand went back towards the window. The gunman told him to put it into a container so Rohus emptied a small trash can that was lined with a plastic bag and put the money inside. He then placed the can on a table near the gunman and began walking towards Wilson. Before he could reach the filing cabinet, however, the gunman instructed Rohus to return to the window. Rohus turned around and began pleading with the gunman not to shoot him. The gunman then said something to Rohus which Wilson was unable to hear. As Rohus began fumbling with his wrist as if to take off his diamond identification bracelet, a gunshot rang out. Rohus began running back towards Wilson and the gunman fired a second shot. After the second shot, Rohus fell to the floor mortally wounded. Medical testimony showed that Rohus died of one gunshot wound to the upper left side of the chest.

Jose Montalvo, a supervisor with Union National Life Insurance Company, testified that he was in his office when he heard gunshots and screams coming from the cashiers office. Montalvo related that he came out of his office just in time to see appellant, who was holding a gun, back away from the sliding glass window. Montalvo followed appellant out of the office and downstairs. There he was joined in the pursuit by a businessman named Robert Lawson. Montalvo and Lawson pursued appellant outside, across a vacant lot and into an apartment complex. A group of workmen working on the apartment complex also joined in the pursuit and appellant was apprehended and disarmed near the complex. Montalvo testified that while he was chasing appellant through the apartment complex, he saw appellant turn around at one point and aim his gun at him. Montalvo testified that he ducked behind a corner of the building. Then he heard gunfire. When he looked around the corner he saw that Javier Ramos and the rest of the workmen had appellant down on the ground and were struggling with him. Lawson, the businessman who joined in the chase, testified that he saw appellant turn and aim his gun at both him and Montalvo while they were chasing appellant across the vacant lot.

Javier Ramos, the foreman of the crew working on the apartment complex, testified that he and his men joined in the pursuit after Montalvo called for help. One of his men, Rafael Gutierrez, was the first one to catch up with appellant. When Gutierrez grabbed appellant, appellant aimed his gun at Gutierrez's chest. Ramos testified that he heard the gun click twice. Appellant then turned and pointed his gun at Ramos. Ramos related that he told Gutierrez to knock appellant down. Gutierrez came up behind appellant and grabbed him and then the three men began struggling. During this time appellant was trying to knock Gutierrez down with the gun. Ramos grabbed the gun to keep appellant from hitting Gutierrez with it. During this struggle, appellant pulled the trigger of the gun again and this time the gun fired, with the bullet passing between Ramos' legs. When appellant attempted to pull the trigger again, Ramos put his hand in the way of the hammer so that when appellant pulled the trigger, the hammer hit the web of the skin between Ramos' thumb and forefinger. Appellant was eventually wrestled to the ground and released his grip on the gun only after Ramos bit him in the hand.

Further evidence at the guilt-innocence phase of the trial showed that during the late afternoon of February 3, 1984, while the voir dire examination of the jury in the instant case was being conducted, appellant suddenly jumped up from his chair at the counsel table and ran from the courtroom. Deputy Sheriff J. L. Byford and an assistant district attorney pursued appellant down one flight of stairs and out of the annex court building. The two men pursued appellant for approximately four blocks before they lost sight of him. Meanwhile two Houston bondsmen were driving down the busy city street when they spotted Deputy Byford pursuing appellant. They lost sight of appellant for awhile, but spotted him shortly thereafter exiting from the passenger's side of a van which was stopped at a red light. One of the bondsmen gave chase. A Houston police officer who was directing traffic nearby also joined in and eventually tackled and apprehended appellant. Marilyn Grigsby the driver of the van, testified that she was stopped at a red light when the appellant ran in front of her van and around to the passenger's side and got in. He asked her to give him a ride. Grigsby testified that she was frightened and after going one block in the stop and go traffic, she asked appellant to get out. He did so. Subsequently Grigsby saw appellant apprehended by the Houston police officer.

The only evidence presented at the punishment stage of the trial by the State consisted of the testimony of Deputy Sheriff Neil Picquet. Picquet testified that on January 17, 1984, he went to the basement holdover cell to escort appellant to the third floor of the Harris County Courts building. Appellant refused to allow Picquet to handcuff his hands behind his back. After Picquet forcibly handcuffed appellant, he asked appellant what he was charged with and what his name was. Appellant replied that he was charged with capital murder. Then appellant remarked "I kill people like you." Appellant repeated this remark as they were riding up in the elevator. When they reached the third floor of the building, Picquet informed his supervisor of appellant's conduct and threats. Picquet then told appellant that an incident report would be filed against him, and appellant replied, "Fuck you."

Appellant took the stand during the punishment stage of the trial and testified that he was thirty-one years old at the time of the trial, that he was one of twelve children and that his parents had divorced when he was very young. He related that he had left home when he was fifteen and had traveled extensively throughout the world. Appellant further testified that he served in the United States Navy from March, 1972, until June 7, 1975, when he was given a dishonorable discharge because he had struck an officer. Finally appellant testified that he had no prior criminal convictions.

In determining questions regarding sufficiency of the evidence, it is our duty to review the evidence in the light most favorable to the jury's findings. Keeton v. State, 724 S.W.2d 58 (Tex.Cr.App.1987); Santana v. State, 714 S.W.2d 1 (Tex.Cr.App.1986). Furthermore, it is often the case that the circumstances of the offense can alone sustain an affirmative answer to the second special issue. Moreno v. State, 721 S.W.2d 295 (Tex.Cr.App.1986); O'Bryan v. State, 591 S.W.2d 464 (Tex.Cr.App.1979).

Appellant argues and we agree that the circumstances of the instant offense alone are not sufficient to support the jury's affirmative answer. As we stated in Roney v. State, 632 S.W.2d 598 (Tex.Cr.App.1982),

"Although this was a senseless murder, that fact is true of every murder in the course of a robbery. The facts of this offense, standing alone, do not carry the marks of a 'calculated and cold-blooded crime,' such as appeared in O'Bryan v. State, 591 S.W.2d 464, 480 [Tex.Cr.App.1979], where the defendant for months planned the candy poisoning of his own child to collect life insurance. To support a 'yes' answer to the second punishment issue, the evidence must show beyond a reasonable doubt that there is a probability appellant would commit criminal acts of violence that would constitute a continuing threat to society. To hold that the facts of this offense, standing alone, would support such a verdict, would mean that virtually every murder in the course of a robbery would warrant the death penalty. Such a construction would destroy the purpose of the punishment stage in capital murder cases, which is to provide a reasonable and controlled decision on whether the death penalty should be imposed, and to guard against its capricious and arbitrary imposition." 632 S.W.2d at 603 [citations omitted and emphasis in original]

In this case, however, unlike in Roney, other evidence was introduced to show appellant's propensity for violence. Certainly appellant's own testimony concerning his discharge from the...