Smith v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: McCORMICK; TEAGUE; CLINTON
• Citation: Smith v. State, 721 S.W.2d 844 (Tex. Crim. App. 1986)
• Decision Date: 22 October 1986
• Docket Number: No. 66448,66448
• Parties: Lindsey Monroe SMITH, Jr., Appellant, v. The STATE of Texas, Appellee.

Page 844

721 S.W.2d 844

Lindsey Monroe SMITH, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 66448.

Court of Criminal Appeals of Texas En Banc.

Oct. 22, 1986.

David Botsford, Austin, Emmett Colvin, Dallas, for appellant.

Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

McCORMICK, Judge.

A jury found appellant guilty of murder and assessed his punishment at seventy-five years.

Evidence adduced at trial showed that the victim was shot and killed by appellant at approximately 2:00 p.m. on May 31, 1979. His body was found by law enforcement authorities an hour or two later, tied to a metal feed trough which had been anchored in the bottom of a deep hole in a creek. Appellant's theory at trial was that he had acted in self-defense. Because a detailed rendition of the testimony is necessary for resolution of appellant's grounds of error, we now summarize the pertinent testimony.

David Thompson testified that on the day of the offense, he was visiting his brother-in-law, Johnnie Denton. At approximately 10:00 a.m. appellant drove up to Denton's house, visited awhile, drove away and then returned thirty minutes later. Just as appellant returned, a fire broke out in the house next door and Thompson left to go and assist in extinguishing the blaze. He returned just in time to see appellant driving off down the street with the victim following behind on foot. According to Thompson, appellant appeared to be angry and was telling the victim to meet him at the corner. Thompson related further that he did not see what went on at the corner. Instead he left Denton's house and drove to a store some four blocks away to purchase some cigarettes. Thompson testified that as he was leaving the store after making his purchase, he saw the appellant, accompanied by Micki Lynn Thompson and Roy Alexander, drive up in appellant's pickup. Thompson heard appellant say, "I'm going to get him before dark," apparently referring to the victim. Thompson returned to Denton's house. When he arrived the victim was there and asked him if he would give him a ride. Thompson drove the victim to his mother's house. The victim asked Thompson to wait for him while he went inside. Shortly thereafter, the victim came out and asked Thompson to give him a ride to Lake Tawakoni. Thompson agreed and the two men began the thirty mile drive to the lake. As the two men approached the lake, they passed appellant's truck driving in the opposite direction. Thompson saw that appellant was accompanied by Roy Alexander. Thompson also noticed that as he passed appellant, appellant hit his brakes, turned his pickup around and started following Thompson's car. After being followed for approximately a mile and a half, the victim told Thompson to pull his car into a side road and stop. Thompson did so. The appellant followed and pulled his truck up approximately one or two car lengths behind Thompson's car. The victim exited Thompson's car and began walking toward appellant's pickup. In the meantime appellant got out of his truck and stepped in front of his door. Thompson related that he then heard appellant say, "By God you want some of this?" Thompson then heard four shots in rapid succession and looked up and saw appellant holding a pistol. Thompson related that the victim did not have a weapon and had not said anything to appellant. Immediately after the shooting, appellant pointed the gun at Thompson and told him that if he said anything to anyone, he (appellant) would blow his head off. Appellant made both Alexander and Thompson help load the victim's body in the back of the truck. Appellant told Thompson he was going to dump the body in the "Calloway bottom" and then he and Alexander drove off. Thompson immediately reported the murder to the authorities. Finally Thompson testified that the shooting occurred at around 2:00 p.m.

Law enforcement personnel arrested both appellant and Alexander a short time later as they were preparing to leave appellant's home. Alexander led authorities to the location of the body and the murder weapon.

The appellant testified that prior to the date of the offense he had never met the victim although he had heard of him and his reputation for being violent. Appellant related that on the morning of the offense as he was driving down the highway towards Johnnie Denton's house, a car driven by a man he later learned to be the victim tried to run him off the road. A few minutes later as he turned onto Denton's street, he saw some friends of his standing on the street corner. He pulled over and was sitting in his truck talking with his friends when the victim walked up and asked him who he was. Appellant told the victim his name and the victim began cursing him and threatening him. According to appellant, the victim told him to get out of the pickup. When he refused and started to drive off, the victim pulled out a knife and cut appellant's arm. Appellant then drove to Johnnie Denton's house. As he was pulling into Denton's driveway, appellant saw the victim running towards him. Not wanting to fight, appellant decided to leave and backed his truck out into the street with the victim still pursuing him. He drove away and was able to elude the victim. Appellant related that he then drove to the West Side Grocery where he met Roy Alexander and Micki Thompson. Appellant admitted seeing David Thompson at the store, but denied making any threats concerning the victim. After leaving the store, appellant dropped Micki Thompson off and then he and Roy Alexander drove to Lake Tawakoni to purchase some beer. On the way back from the lake, they passed a car which appellant recognized as belonging to David Thompson with two individuals inside. Appellant related that he thought that the two individuals were David Thompson and Johnnie Denton. According to appellant, he looked in his rear view mirror and saw that David Thompson had his brake lights on and had pulled over to the side of the road. At that point appellant slowed down, made a U-turn and followed Thompson's car down the side road. Appellant related that as he pulled up behind Thompson's car, the victim immediately jumped out of the passenger side of the car and started coming towards him. Appellant tried to put his truck in reverse and back out, but his tires started to spin and he could not escape. At that point appellant grabbed the loaded pistol he kept in his truck and stepped out of the pickup. He took one step backward and pointed the pistol at the victim who was standing some five to eight feet from the front of the pickup. According to appellant, the victim who was already holding a knife in one hand, reached into his back pocket and said, "I'm going to blow your goddamn head off." Appellant stepped backwards as the victim advanced. When the victim would not stop, appellant shot the victim. According to appellant it was David Thompson's idea to dispose of the victim's body in the "Calloway bottoms." Appellant related that as he and Roy Alexander were driving to the creek to dispose of the body they passed a deputy sheriff. Appellant told Alexander that they should stop and report the shooting but Alexander picked up appellant's pistol and told him to keep on driving. When they reached the creek Alexander disposed of the body. The two men then proceeded to drive to appellant's home. On the way, they hid the murder weapon under a log.

In his first and second grounds of error, appellant argues that the court erred first, by overruling his objections to the qualifications of Dr. Charles S. Petty and second by overruling his motion to strike the testimony of Dr. Petty. Dr. Petty, the Chief Medical Examiner for Dallas County, was called to testify concerning the autopsy performed on the victim. Although Dr. Petty was asked to detail his educational background, his employment history, his duties as chief medical examiner and custodian of the records, the prosecutor neglected to ask the doctor if his license to practice medicine had been properly filed. ¹ Appellant's objection to this deficiency was overruled. Appellant now argues that this omission was fatal to the State's case.

In Cordero v. State, 164 Tex.Cr.R. 160, 297 S.W.2d 174, (1956), a similar argument was made when the State failed to prove that their expert witness was licensed by the State of Texas or had registered his license in the county where he practiced. This Court, relying on Silva v. State, 152 Tex.Cr.R. 545, 215 S.W.2d 887, (1948), found that since the record showed that the doctor was a graduate of Baylor Medical College and had practiced medicine for nine years he was sufficiently qualified to testify as a medical expert. In Silva v. State, supra, we stated:

" ... We think the mere fact that he did not have a license would not authorize the court to exclude his entire testimony. It occurs to us that the objection went more to the weight of the testimony than to its inadmissibility. However, the question of whether or not a witness is sufficiently qualified to express an opinion as an expert on a question involving scientific knowledge is a matter for the court to determine after the witness has stated the time devoted to the study of that branch of science, his training and experience. When the court is satisfied that the witness is qualified, then he is permitted to testify, unless it is shown that the court abused his discretion with respect thereto." 215 S.W.2d at 888.

In the instant case, Dr. Petty testified that he graduated from the Harvard Medical School in 1950. He then spent two years in clinical internship in residency at the Mary Imogene Bassett Hospital in Coopertown, New York. Thereafter he moved to Boston and spent three years in specialty training in pathology. In 1955, he moved to New Orleans where he worked first as an instructor and then as an Assistant Professor of Pathology at the Louisiana State University School of Medicine. During...