Smith v. State

• Decision Date: 31 March 2011
• Docket Number: No. 01–09–00634–CR.,01–09–00634–CR.
• Parties: Joseph Wayne SMITH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

355 S.W.3d 138

Joseph Wayne SMITH, Appellant,

v.The STATE of Texas, Appellee.

No. 01–09–00634–CR.

Court of Appeals of Texas, Houston (1st Dist.).

March 31, 2011.

Aug. 24, 2011.

Discretionary Review Refused

Kurt B. Wentz, Houston, for Appellant.

Patricia R. Lykos, Harris County Dist. Atty., Donald W. Rogers, Asst. Dist. Atty., Houston, for State.

Panel consists of Justices KEYES, HIGLEY, and BLAND.

JANE BLAND, Justice.

A jury convicted Joseph Wayne Smith of murder and assessed his punishment at twenty-five years' confinement. See TEX. PENAL CODE ANN. § 19.02(b) (West 2003). On appeal, Smith contends that: (1) the evidence is factually insufficient to support his conviction; (2) the evidence is legally and factually insufficient to support the jury's negative finding on the issue of sudden passion during the punishment phase; (3) the trial court erred in excluding testimony about the complainant's prior violent acts; (4) the trial court erred in sustaining the prosecutor's objections to a witness's opinion that the complainant was a violent person; and (5) the trial court deprived Smith of his constitutional right to due process of law and his right to confront the witnesses by excluding evidence of complainant's tattoos.

We hold that the evidence was legally and factually sufficient to support Smith's conviction, the evidence is legally and factually sufficient to support the jury's negative finding on the issue of sudden passion, the trial court did not err in excluding the complainant's prior violent acts, any error by the trial court in sustaining the prosecutor's objections to the witness's opinion was harmless, and the trial court did not deprive Smith of due process or his right to confront the witnesses. We therefore affirm.

Background

The complainant, Anthony Hawkins, and his fiancée, Trinet Fields, shared an apartment at the Los Arcos apartment complex with Smith and his girlfriend, Yereter Bernardez. In March, Hawkins and Fields told Smith and Bernardez that they were moving out of the apartment because the environment in the apartment was hostile. Fields moved their things out of the apartment, and Fields, who was the named tenant on the lease, turned her key in to the apartment office. The following day, the office manager at the complex informed Smith and Bernardez that they also had to move out of the apartment.

At 8:30 p.m. that evening, Hawkins, Fields, and Mary McNulty–Brown drove Fields's rented red Impala to visit Mary's sister, Ashley McNulty–Brown, at the Stonegate Apartment Complex. Upon arriving, they first went to the apartment of Fields's friend, Terrance Foley. Foley was also a friend of Smith. Upon leaving Foley's apartment, Fields heard a loud noise of something suddenly deflating and noticed that someone had stabbed all four tires of her Impala. Hawkins and Foley searched the area for the person who had stabbed the tires. Mary, accompanied by Fields and Ashley, drove the Impala toward the complex's exit gate. Before the Impala reached the gate, Smith blocked it with his purple Nissan Maxima. Smith exited the Maxima, walked toward the Impala with an angry expression on his face, and looked inside the car. Mary reversed the Impala and parked it in a parking spot. Smith returned to his Maxima and drove away. Fields used a walkie-talkie to warn Hawkins that Smith was in the parking lot. She and the other women saw Hawkins run after Smith's Maxima and out of their view.

Minutes later, Hawkins ran back to the Impala. He told the women that Smith had stabbed him. Following behind Hawkins, Smith approached the Impala. He again attempted to stab Hawkins with a knife he had in his hand. Hawkins jumped back and fell into the car. Mary placed him in the passenger-side seat. According to Fields and the other women, Hawkins was unarmed that evening. Smith then ran away from the car. Hawkins was bleeding from his left abdomen, and Fields called 911. Hawkins stopped breathing and died shortly thereafter at the hospital.

Robert Bailey, a security guard at Stonegate, observed some of the events associated with Hawkins's death. He saw the women around the Impala, heard air coming out of the car's tires, and saw holes or slashes to the tires. He witnessed a black car cut off the Impala as it moved to the exit of the apartment complex, and heard male and female voices screaming. He saw two men backing away from the Impala. One of these men held a knife in his hand. He asked the two men to leave, and they got into the black car and left the property. After he noticed a man in the Impala leaning back in the car in pain, he called 911. He testified that the man in the Impala did not have a knife in his hand. Houston Police Officers J. Pena and C. Abbondandolo investigated Hawkins's death. They found no knives at the crime scene.

Dr. Stephen Wilson, a medical examiner for the Harris County Medical Examiner's Office, performed an autopsy on Hawkins the day after his death. Hawkins's only injury was a single stab wound to the left side of the chest. He had no other fresh abrasions or lacerations. He concluded that the cause of Hawkins's death was a single stab wound to the left side of his chest which perforated his heart and penetrated his left lung. Hawkins had alcohol and methamphetamine in his system when he died.

Smith testified on his own behalf during trial. Around 3:30 p.m. on the day of Hawkins's death, Bernardez informed Smith that they had to move out of the Los Arcos apartment by 5 p.m. because Fields had argued with the apartment manager and had thrown her keys at the leasing agent. Smith and Bernardez packed their belongings with the help of Smith's mother. While they were packing, Smith's mother had a loud phone conversation with Fields. Hawkins then phoned and spoke with Smith, but Smith hung up on Hawkins because Hawkins was hostile during the call. According to Smith, Hawkins was a very violent and aggressive person.

Around 8:30 or 9:00 p.m., Smith left the Los Arcos apartment in his Maxima with Bernardez, her three-year-old son, and her friend, Keisha Dupree. While Smith was en route to Keisha's friend's house, Foley called and asked whether Smith would help move things around his apartment at Stonegate. Smith proceeded to Stonegate and entered the complex's gate using a key code Foley had provided. When he entered the parking lot, he noticed Fields's red Impala parked near Foley's apartment. Bernardez told Smith that they should leave to avoid any further confrontation with Fields and Hawkins. As Smith's Maxima approached the exit gate of the complex at a slow rate of speed, Hawkins, looking "pissed off" and angry, ran toward it and grabbed Smith's steering wheel, causing the car to collide with several vehicles parked near the gate. Hawkins punched Smith in the face and tried to pull him out of the Maxima.

Once the Maxima came to a stop, Smith, shocked and scared, hit Hawkins with the driver-side door, caught another blow to the face, and tackled Hawkins. Both men fell to the ground. Smith testified that it was necessary to exit the Maxima and to fight Hawkins because: (1) he was being punched, hit, rushed, and "aggressed"; (2) he "[k]new there was no other way [he] could get out of the apartments because [he] had to stop at the gate still to push the code to get out"; and (3) he had to protect the two women and the small child in the car, as well as himself.

Smith further testified that Hawkins swung a knife at his stomach. Smith dodged Hawkins's knife and hit him twice in the chin. Hawkins tried to stab Smith in the neck, but Smith grabbed Hawkins's arm, which held the knife. Smith pulled his own knife out of his pocket, and stabbed Hawkins in the chest one time. After he stabbed Hawkins, Smith ran and jumped over the apartment complex fence. He denied that he returned to Fields's Impala after the fight. He testified that he did not see anyone in or near the Impala when he drove by it before his fight with Hawkins. Smith found his Maxima parked on the street outside of the complex, with Bernardez and Keisha waiting inside.

Shortly after the incident, Smith fled to Victoria, Texas. When he found out that Hawkins had died, he returned to Houston and turned himself in to the police. Bernardez and Keisha also testified at trial. They testified that Hawkins ran at the Maxima, grabbed the steering wheel, and hit several parked cars. A fight ensued between Hawkins and Smith. Keisha testified that Hawkins held a knife in his hand during the fight, but Bernardez testified that she only saw the two men use their fists during the portion of the fight she witnessed. Neither Keisha nor Bernardez witnessed Smith stab Hawkins. At some point during the fight, Bernardez drove Smith's car outside the apartment complex and parked it on a nearby street. They stated that Smith appeared shaken up when he returned to the Maxima after the fight.

SUFFICIENCY OF THE EVIDENCE OF JURY'S REJECTION OF SMITH'S DEFENSIVE CLAIMS

In his first issue, Smith contends that the evidence is factually insufficient to support his conviction for murder because he acted in self-defense and in the defense of a third person. See TEX. PENAL CODE ANN. §§ 2.03, 9.02, 9.32, 9.33 (West 2003). We disagree.

Standard of Review for Self–Defense and Defense of a Third Person

"[T]he Jackson v. Virginia legal sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt." Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010) (referring to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). Under this standard, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational fact finder could have found that each essential element of the charged offense was proven beyond a...