Number of victims: 1
Date of murder:
Date of arrest:
Date of birth:
Victim profile: Tim
Hudson, 61 (Pecos County Deputy
Method of murder:
Shooting (.357 magnum pistol)
Location: Pecos County, Texas, USA
by lethal injection in Texas on May 16,
Tim Hudson was a Pecos County Deputy Sheriff, nine months shy of his
retirement when he was sent out on a call that two men had stolen
$22 worth of gas from a service station near Bakersfield.
Around midnight, Hudson attempted to pull over a
van that matched the description of the vehicle. Unbeknownst to
Hudson, the stolen van carried two escapees from Kansas, Charles
Edward Smith and his cousin Carroll Bernard Smith.
The pair had escaped from a work-release center a
week earlier, and had stolen the van along with a .357 magnum
revolver in Houston and were headed for New Mexico.
As Hudson tried to pass the van on the left,
Charles Smith fired three shots into the car. One of the shots
struck Tim Hudson in the side, killing him.
The shooting prompted an extensive manhunt across
West Texas that ended with a police chase and shootout. Upon arrest,
Hudson gave a complete confession, including a statement that it has
been his lifelong dream to kill a cop and that he felt like his life
was complete now.
Three different juries convicted Smith of the
murder and three times he was sentenced to death as a result of two
reversals on appeal.
Smith v. State, 907 S.W.2d 522 (Tex.Cr.App. 1995) (Direct
Smith v. State, 74 S.W.3d 868 (Tex.Cr.App. 2002) (Direct
Nine tacos, 9 enchiladas, French fries, 16 Pepsis, salad with ranch
dressing, a bowl of picante sauce, beef fajitas, a bowl of shredded
cheese, a strawberry cake with strawberry frosting and six jalapeno
Texas Department of Criminal Justice
Inmate: Smith, Charles Edward
Date of Birth: 2/24/66
Date Received: 11/1/89
Education: 10 years
Date of Offense: 8/20/88
County of Offense: Pecos
Native County: San Bernardino County, California
Hair Color: Brown
Eye Color: Blue
Height: 05' 09"
Weight: 165 lb
Co-defendants: Carroll Bernard Smith
Prior Prison Record : August 1987 convicted of Aiding a Felon,
Burglary and Theft in Finney County Kansas, sentenced to 1-5 years.
Escaped an on the run from that sentence when murder committed.
Texas Attorney General
Wednesday, May 9, 2007
Media Advisory: Charles
Smith Scheduled For Execution
AUSTIN – Texas Attorney General Greg Abbott
offers the following information about Charles Edward Smith, who is
scheduled to be executed after 6 p.m. Wednesday, May 16, 2007. Smith
was convicted and sentenced to death for the murder of Pecos County
deputy Sheriff Tim Hudson.
FACTS OF THE CRIME
In August 1988, while serving a sentence in a
Kansas correctional facility for burglary, theft and aiding a felony,
Charles Smith, along with his cousin Carroll Smith, escaped. At the
time of the escape, Charles had approximately one month left to
serve before he would have been eligible for parole. The two men
stole a pickup truck and drove to Houston. While in Houston, they
burglarized several homes and stole credit cards, jewelry, license
plates, and a .357 magnum pistol and ammunition. They abandoned the
stolen truck and replaced it with a stolen van and began driving
west toward New Mexico.
On August 19, 1988, the two escapees stopped and
pumped gasoline worth $22.50 into the van in Bakersfield, Texas, and
drove away without paying. Pecos County deputy Sheriff Tim Hudson
and other law enforcement officers responded to the reported theft.
Charles, who was driving the van, refused to stop
when the officers tried to pull him over. When Hudson pulled
alongside the van, Charles fired three shots into Hudson’s car, one
of which fatally wounded Hudson. The evidence showed that Hudson did
nothing to provoke the shooting; his firearm was still snapped in
place and he was simply attempting to determine who was in the van.
After shooting Hudson, the two escapees abandoned
the van and stole a truck tractor. When they approached a roadblock,
they made a U-turn and a chase ensued. The two men were captured.
Charles Smith made two videotaped confessions while in custody.
On August 24, 1988, Charles Smith was indicted by
a Pecos County grand jury for capital murder in the death of deputy
Sheriff Tim Hudson, and he was later convicted and sentenced to
death. However, on December 4, 1991, the Texas Court of Criminal
Appeals reversed his conviction. Smith was retried, convicted, and
sentenced to death again in 1992. On September 20, 1995, the Texas
Court of Criminal Appeals affirmed Smith’s conviction in but
remanded the case for a new punishment hearing. Smith received the
new hearing, and a jury sentenced him to death on November 17, 1999.
Smith’s sentence was affirmed on appeal on May 8, 2002.
Smith filed a state application for writ of
habeas corpus in the trial court on August 13, 2001. The trial court
later entered findings of fact and conclusions of law recommending
that Smith be denied relief. On October 22, 2003, the Texas Court of
Criminal Appeals adopted the trial court’s findings and conclusions
and denied Smith habeas relief.
On October 20, 2004, Smith filed a federal habeas
petition in the a U.S. District Court. On September 16, 2005, the
district court denied Smith’s petition. Smith appealed, but the 5th
U.S. Circuit Court of Appeals affirmed the district court’s judgment
on November 30, 2006. Smith petitioned the U.S. Supreme Court for
certiorari review on February 23, 2007. The petition is currently
pending before the Court
PRIOR CRIMINAL HISTORY AND EVIDENCE OF FUTURE
In 1987, Charles Smith pled guilty to felony
burglary and felony theft, admitting that he and a companion, Jeff
Miers, had broken into a house and stolen a rifle. Smith’s
conviction for aiding a felon stemmed from his presence when Miers
used that gun on January 22, 1987, to kill Martin Esquivel and wound
his brother, Fernando Esquivel, in Garden City, Kansas. One witness
testified that Smith urged Miers to commit the murder.
Sally Ann Ochoa, the probation officer who
prepared the presentence investigation report for Smith’s conviction
for aiding a felon (relating to Smith’s involvement in the Esquivel
murder), testified that Smith did not express any remorse and seemed
unconcerned. She concluded that Smith was not a suitable candidate
for probation and recommended that he be sentenced to prison.
Norma Jean Jackson, a correctional officer in
Kansas, testified that while Smith was incarcerated in the facility
where she was employed, he violated the facility’s rules by shoving
her as she stood in a doorway. Joyce Whitt, another correctional
officer from Kansas, testified that Smith escaped from the Kansas
facility when he had approximately a month left to serve before
being eligible for parole, and that he could have faced two years in
prison if he had been captured.
Mark Yates, who was incarcerated in a cell
adjoining Smith’s cell in the Pecos County Jail, testified that
Smith showed no remorse for the murder of Deputy Hudson and stated
that he (Smith) had slept like a baby the first night in jail. Yates
also testified that Smith told him that, by killing a police officer,
he had fulfilled one of the goals of his life.
Cliff Harris, who supervised the jailers in Pecos
County, testified about contraband found in Smith’s cell and in the
maximum security area where he was housed. He testified that they
had numerous problems with Smith: he set his blankets on fire once;
he fought with other inmates; he had a very short temper and when he
lost his temper, he tore things up; he intimidated other inmates and
dominated the maximum security cellblock; and he was a danger to
other inmates and the jailers.
Sam Esparza testified that while he was assisting
with visitation at the Pecos County Jail, he broke up a fight
between Smith and another inmate. T.J. Perkins, another jailer at
the Pecos County Jail, testified that Smith grabbed him through the
bars and that he felt that his life was in danger. He also testified
that he heard Smith singing a song: “I shot the sheriff, but in my
case it was the deputy.”
Pecos County jailer Carol Barnett testified that
a razor blade that had been removed from its plastic holder was
taken from the sink in Smith’s cell. She also testified that after a
strip search of the inmates and a shakedown of the maximum security
cells, Smith got angry because his cell had been searched. He tore
up light fixtures and a television set and threw the pieces through
the bars at the deputies and then started a fire with a blanket. She
testified that Smith was more aggressive than most of the other
Jailer Darlene Archer testified that she saw
Smith hitting another inmate in the face with his fist; and that she
heard Smith singing, in a cheery manner, “I shot the sheriff, but in
my case I shot the deputy.” In her opinion, Smith had “no good
points” and “no redeeming virtues.”
Pecos County Sheriff Bruce Wilson testified that
he came to the jail the night Smith started the fire and heard Smith
say that he was going to kill the first person through the door.
Wilson testified that Smith was moody and one day could be docile
and the next day “he can be a raging, crazy human being.” He
testified that Smith is “very dangerous” and was the dominating
force in the maximum security area of the Pecos County Jail.
Finally, several other witnesses testified that
Smith had a bad reputation for being a peaceful and law-abiding
Inmate Executed in Texas Deputy's Death
Michael Graczyk - Officer.com
May 17th, 2007
HUNTSVILLE, Texas -- A Kansas prison escapee was
executed Wednesday for fatally shooting a sheriff's deputy who was
trying to pull him over for stealing $22.50 worth of gasoline from a
Charles Edward Smith did not make a final
statement. He was pronounced dead at 6:41 p.m., 11 minutes after the
lethal drugs began to flow. The execution had been delayed slightly
because of difficulty finding veins for the needles carrying the
For a moment, Smith glanced through a window at
friends and relatives of slain Pecos County Deputy Tim Hudson. "I'm
glad he didn't say anything negative," said Hudson's daughter, Gwynn
Hudson Simmons. "You wait on something 18 years that should have
been done years ago, it's just the right thing to have happen."
Smith, 41, and a cousin, Carroll Smith, had fled
from a minimum security prison in Kansas, five days before the Aug.
19, 1988, slaying of 61-year-old Hudson. Charles Smith had served
about a year of a one- to five-year sentence for burglary, theft and
aiding a felony.
After escaping, Charles Smith, a native of San
Bernardino, Calif., and Carroll Smith, of Houston, stole a truck and
headed for Texas. The pair got gasoline in West Texas and drove off
without paying. When Hudson tried to pull them over, Charles Smith
opened fire. The shooting prompted an extensive hunt across West
Texas that ended with a police chase and shootout.
Smith's defense was that the slaying was
unintentional. His cousin agreed to a life prison term and remains
Smith was the 14th condemned killer to receive
lethal injection this year in Texas, the nation's busiest capital
Deputy Sheriff Tim Hudson
Pecos County Sheriff's Department
End of Watch: Saturday, August 20, 1988
Tour of Duty: Not available
Badge Number: Not available
Cause of Death: Gunfire
Date of Incident: Saturday, August 20, 1988
Weapon Used: Handgun; .357 caliber
Suspect Info: Executed in 2007
Deputy Hudson was shot and killed while pursuing
two robbery suspects along I-10. One of the suspects shot him with a
.357 caliber handgun as he attempted to pass the car. Both suspects
were eventually apprehended. One of them was sentenced to death and
the other was sentenced to life.
Gwynn Hudson Simmons
The suspect who was sentenced to death was
executed on May 16, 2007. After 18 long years of heartache I finally
received word that my Dad's murderer will be executed this year. I
would like to thank all of the officers, their families and everyone
involved in the capture, arrest and prosecution of this animal.
Charles Edward Smith shot and killed Tim Hudson 9 months before he
was planning to retire.
A decorated WWI Marine veteran who served and was
wounded overseas, Tim Hudson devoted his life to the safety and
welfare of others. I was a young woman of 28 with 2 small children
at the time of this murder and our entire family's life was horribly
altered forever. My son went on to become a Marine (he was 7 yrs old
at the time of the murder) and both he and my wonderful 22 year old
daughter grew up without him in their lives. Anyone who knew Tim
knew the kind of man that he was and I'm sure he would want to thank
all of the officers that were involved in this also. I will be at
the execution without a doubt and considering the murderer Charles
Edward Smith has bragged about killing a cop since the day it
happened, I will have no problem with justice being finally served
for my Dad. It will not be a happy occasion for either family but
this does uphold the message that we DO NOT tolerate cop killers in
Texas. Now all we have to do is change laws the require us to feed
and house and educate these criminals for 18 years before justice is
Texas executes man for 1988 killing of dep.
May 16, 2007
DALLAS (Reuters) - Texas executed a man by lethal
injection on Wednesday for the 1988 murder of a deputy sheriff who
had tried to pull him over when he was driving a stolen van. Charles
Edward Smith, 41, was sentenced to die for killing deputy sheriff
Hudson tried to stop Smith, who had escaped from
a minimum-security prison in Kansas, when Smith was driving a stolen
van and Smith responded by firing three shots into Hudson's car,
fatally wounding him, according to prosecutors and media reports.
Smith was the 14th inmate put to death in Texas
so far this year and the 393rd since the state resumed executions in
1982. Texas leads all U.S. states in executions, reflecting its
conservative political outlook and high rates of violent crime.
Smith made no final statement. For his last meal
he requested nine tacos, nine enchiladas, French fries, 16 Pepsis,
salad with ranch dressing, a bowl of picante sauce, beef fajitas, a
bowl of shredded cheese, a strawberry cake with strawberry frosting
and six jalapeno peppers.
Texas has scheduled 12 more executions this year.
Kansas prison escapee executed for killing
By Michael Graczyk - Houston Chronicle
Associated Press - May 17, 2007
HUNTSVILLE, Texas — Almost two decades after he
and a cousin escaped from a Kansas prison and fled to Texas where
they committed a string of thefts and burglaries, Charles Edward
Smith was executed for gunning down a West Texas sheriff's deputy
who tried to pull them over for not paying for a tank of gas.
Smith, 41, replied with a curt "No, sir," when
asked by the warden if he had a final statement from the death
chamber gurney before the lethal drugs were administered. Eleven
minutes later, at 6:41 p.m. CDT, he was pronounced dead, making him
the 14th inmate executed this year in the nation's most active
capital punishment state.
The U.S. Supreme Court refused Monday to review
his case and no subsequent appeals were filed to try to halt the
lethal injection. "He won't kill anyone else. We can guarantee that
100 percent," Gwynn Hudson Simmons said after watching Smith die.
Simmons' father, Tim Hudson, was the Pecos County sheriff's deputy
fatally wounded by Smith in August 1988. "When you have somebody who
showed no remorse and actually bragged about killing a police
officer, ... what can be said? I had no desire to talk to him and I
don't think there was anything he could have said to me to make any
Smith and a cousin, Carroll Smith, had fled from
a minimum-security prison in Shawnee County, Kan., five days before
the slaying. Charles Smith had served about a year of a one- to five-year
sentence for burglary, theft and aiding a felony. His cousin was
serving seven to 25 years for burglary, theft and criminal damage to
Charles Smith, a native of San Bernardino, Calif.,
and Carroll Smith, from Houston, reached Houston in a stolen truck
and broke into several houses, stealing money, credit cards and
other items, including the .357-caliber Magnum pistol evidence
showed was the weapon used to kill Hudson.
They replaced their truck with a stolen van, got
$22.50 worth of gas in Bakersfield in West Texas and drove off
without paying. When Hudson tried to pull them over about 30 minutes
later on Interstate 10 near Fort Stockton, Charles Smith opened fire.
One of the shots went through Hudson's arm and into the deputy's
chest, fatally wounding him.
Evidence showed Hudson, a career lawman nearing
retirement, apparently didn't know the men in the van were escapees.
He never drew his gun and had just radioed the license plate number
to a dispatcher. The shooting prompted an extensive hunt for the
deputy's killers across West Texas that ended with a wild police
chase and shootout.
Smith was convicted of capital murder and
sentenced to death. In 1992, his conviction was thrown out by the
Texas Court of Criminal Appeals, which ruled the trial judge
improperly denied a challenge from Smith's lawyer during jury
selection. In 1995, the same appeals court threw out a second death
sentence for improper jury instructions. Four years later, he was
sentenced to die a third time.
He declined from death row to speak with
reporters in the weeks preceding his scheduled execution. "He got
good hearings over the years and escaped execution," J.K. Wall,
Charles Smith's appeals lawyer, said Wednesday. "He's had some
appellate success but unfortunately he just run out of issues."
Smith's original Kansas conviction stemmed from a
burglary where he and a companion stole a rifle that was used in a
killing in Garden City, Kan.
Jailers from Pecos County testified at his trial
they remembered Smith for singing the 1970s Eric Clapton rock song
"I Shot the Sheriff" and amending the words to say, "But in my case
it was the deputy." He told a fellow jail inmate the cop killing
fulfilled a lifetime goal.
His cousin agreed to a life prison term and
remains behind bars. At least a dozen other condemned inmates have
execution dates in Texas in the coming months, five of them in June.
Man executed in deputy's death
escapee shot Texas officer after being stopped in '88
Dallas Morning News
May 17, 2007
HUNTSVILLE, Texas – Kansas prison escapee Charles
Edward Smith was executed Wednesday evening for the fatal shooting
of a sheriff's deputy who was trying to pull him over for stealing
$22.50 worth of gasoline from a service station. Asked if he had a
final statement, Mr. Smith replied, "No, sir."
He was pronounced dead at 6:41 p.m., 11 minutes
after the lethal drugs began to flow. The execution had been delayed
slightly because of difficulty finding veins for the needles
carrying the drugs.
He never looked at a window a few feet away,
behind which were friends and relatives of the slain deputy, Tim
Mr. Smith, 41, was the 14th condemned killer to
receive lethal injection this year in Texas. The U.S. Supreme Court
on Monday refused to review his case.
Mr. Smith and a cousin, Carroll Smith, had fled
from a minimum-security prison in Shawnee County, Kan., five days
before the Aug. 19, 1988, slaying of Deputy Hudson in Pecos County.
Charles Smith had served about a year of a one- to five-year
sentence for burglary, theft and aiding a felony. His cousin was
serving seven to 25 years for burglary, theft and criminal damage to
After escaping, Charles Smith, a native of San
Bernardino, Calif., and Carroll Smith, from Houston, stole a truck
and headed for Texas. They reached Houston and broke into several
houses, stealing money, credit cards and other items, including the
.357-caliber Magnum pistol that evidence showed was the weapon used
to kill Deputy Hudson, who had planned to retire in about nine
The pair, who replaced the truck stolen with a
stolen van, got gas in Bakersfield in West Texas and left without
paying. When Deputy Hudson tried to pull them over about 30 minutes
later on Interstate 10 near Fort Stockton, Charles Smith opened fire.
One of the shots went through Deputy Hudson's arm and into his chest.
Third jury gives death penalty in deputy's
Pecos County Enterprise
November 22, 1999
FORT STOCKTON (AP) - A West Texas jury decided
last week that a thrice-convicted cop killer should die for his
crimes - the suspect's third death sentence in 10 years. The 12-member
panel deliberated for less than three hours before deciding Charles
Edward Smith should die by lethal injection for the 1988 shooting
death of a Pecos County lawman.
Smith, from Kansas, showed no reaction Thursday
as District Judge Brock Jones read his order to place Smith on death
row. Defense attorney Martin Underwood said he planned to appeal the
sentence. "We're in the appellate mode once again, which is nothing
new to us," Underwood told the Odessa American.
The Texas Court of Criminal Appeals has already
overturned Smith's two previous death sentences. After Thursday's
punishment was handed down, Underwood said he would file another
appeal with the higher court in "a couple months." The family of
slain officer Tim Hudson shouted with joy and clapped when Jones
read the verdict.
Hudson's daughter, Gwen Hudson-Simmons, said she
was eager to see Smith die for the murder. "This has gone on long
enough. I hope for a speedy execution," she told the newspaper.
According to testimony and court records, Smith
and his cousin escaped from a minimum-security prison in Kansas in
August 1988. Then they stole a car and drove to South Texas. Once in
Houston, they stole a handgun, license plates, credit cards and a
Texas Execution Information Center by David
Charles Edward Smith, 41, was executed by lethal
injection on 16 May 2007 in Huntsville, Texas for murdering a
sheriff's deputy while fleeing from a robbery.
On 14 August 1988, Smith, then 22, and his cousin,
Carroll Smith, 31, escaped from a Kansas correctional facility. They
stole a pickup truck and drove to Houston, where Carroll had once
lived. While in Houston, they burglarized several homes and stole
credit cards, jewelry, license plates, and a .357 magnum pistol.
They abandoned the stolen truck, stole a van, and began driving west
on Interstate 10.
On 19 August, the pair stopped at a gas station
in Bakersfield, about 35 miles east of Fort Stockton. They put
$22.50 worth of gasoline into the van, then drove off. The gas
station operator called the Pecos County Sheriff's Department.
Deputy Tim Hudson, 61, found the men driving on I-10 west of Fort
Stockton and turned his flashing lights on, but the van didn't stop.
Hudson then pulled alongside the van to look inside it. Charles
Smith then fired a .357 Magnum three times into his patrol car. One
of the shots struck Hudson in the side, killing him.
The suspects then abandoned the van in Coyanosa,
about 20 miles north of I-10, and stole a truck tractor from a
residence. With the aid of a U.S. Customs helicopter, they were
found north of Coyanosa. When they got to a roadblock, they made a
U-turn, and a chase ensued. The cousins were captured after a
running gun battle. Carroll Smith was wounded in the left arm during
Charles Smith confessed to the crime upon his
arrest. Evidence presented at his trial showed that Deputy Hudson's
sidearm was holstered and latched and his window was rolled up.
Mark Yates, who was incarcerated in a cell
adjoining Charles Smith's in the Pecos County Jail, testified at
Smith's punishment hearing that Smith told him that by killing a
police officer, he had fulfilled one of the goals of his life. Jail
personnel testified that Smith set a fire in his cell, tore up light
fixtures and a television set and threw the pieces at the deputies,
fought with another inmate, and assaulted a jailer, grabbing him
through the bars of his cell. At least two jail personnel testified
that they heard Smith singing "I shot the sheriff, but in my case it
was the deputy," a variation on a hit song recorded by Eric Clapton.
Charles Smith had prior convictions in Kansas for
burglary, theft, and aiding a felon. He and a companion, Jeff Miers,
broke into a house and stole a rife. Miers then used the stolen gun
to kill Martin Esquivel after Esquivel confronted Miers and Smith
for stalking and harassing his sister.
Testimony showed that Smith urged Miers to kill
Esquivel. He was sentenced in August 1987 to one to five years in
prison. If he had not escaped, he would have been eligible for
parole after serving another month.
A jury convicted Smith of capital murder in
August 1989 and sentenced him to death. In December 1991, the Texas
Court of Criminal Appeals found that the trial court refused a valid
request from the defense to strike a juror, and vacated his
He was convicted and sentenced to death in a new
trial in 1992. This time, the TCCA affirmed the conviction, but
vacated the death sentence in September 1995 because the jury wasn't
instructed to consider whether Smith killed Deputy Hudson
deliberately. Smith received a new sentencing hearing and was
sentenced to death for the third time in November 1999. The TCCA
affirmed that death sentence in May 2002. All of Smith's subsequent
appeals in state and federal court were denied.
Carroll Bernard Smith was convicted of murder
with a deadly weapon and was sentenced to life in prison. He remains
in state custody as of this writing.
Charles Smith declined to be interviewed by
reporters while on death row.
Smith's execution was delayed for a few minutes
because of difficulty in finding a vein for the injection. When the
warden asked if he had a final statement, he replied, "No sir." The
lethal injection was then started. He was pronounced dead at 6:41
In August 1987, Charles Smith was sentenced to
1-5 years in prison for a burglary in Kansas. He escaped from
custody on August 14, 1988. Less than a week later, he murdered
Pecos Country Deputy Sheriff Tim Hudson.
Hudson was less than nine months shy of his
retirement when he was sent out on a call that two men had stolen
$22 worth of gas from a service station near Bakersfield. Around
midnight, Hudson attempted to pull over a van that matched the
description of the vehicle. Unbeknownst to Hudson, the stolen van
carried two escapees from Kansas, Charles Edward Smith and his
cousin Carroll Bernard Smith.
The pair had escaped from a work-release center a
week earlier, and had stolen the van along with a .357 magnum
revolver in Houston and were headed for New Mexico. As Hudson tried
to pass the van on the left, Charles Smith fired three shots into
the car. One of the shot struck Tim Hudson in the side, killing him.
Gwynn Hudson-Simmons, Tim's daughter said, “My
dad’s last radio transmission was running the plates,” she said. “He
just thought it was a gas thief. He never knew they were escaped
convicts. He lived for about 90 seconds after he was shot, and we
are thankful that he didn’t suffer.”
The criminals stopped in a small town and set the
van on fire and then stole a tractor-trailer truck. A U.S. Customs
helicopter and multiple law enforcement agency vehicles chased the
pair, who engaged in a gunfight as they tried to get away.
During an interview published on thebackgate.com,
Hudson's daughter said, “I will never forget that Saturday morning.
I heard a knock on the door and I thought ‘Why doesn’t dad just come
on in?’ But, when I got to the door, it was the sheriff and my yard
was filled with officers.” Hudson-Simmons was 28 with two small
children at the time of her father’s death. Tim Hudson was a 30-year
veteran of law enforcement working in several West Texas counties
and cities, including Seminole, Midland, Stanton, Monahans and Hobbs,
N.M. He also was a U.S. Marine veteran who served during World War
II. Smith has stood trial for Hudson's murder on three separate
A year after the murder, Smith was found guilty
by a jury that needed only 25 minutes to deliberate. He was
sentenced to death the following week. However, this conviction was
overturned by the Texas Court of Criminal appeals in December of
1991. After finding that one of the jurors in the original trial had
a cousin who was a police officer, the conviction was overturned and
the case was sent back for a retrial.
A second trial was held in 1994 with the same
outcome; a guilty verdict and a second death sentence. The same
appeals court reserved the conviction again, deciding that an error
in the jury instructions could have affected the outcome of the
A third jury heard the case in November of 1999
and Smith was again found guilty and sentenced to death.
Gwynn Hudson-Simmons plans to witness Smith's
execution. “This is not a happy occasion for anyone. I have prayed
for this man and his family for 18 years,” she said. “I was against
the death penalty, but it’s different when someone in your family is
killed like this, and their killer doesn’t show any remorse.”
Former Pecos County Sheriff Bruce Wilson, who was sheriff at the
time of Hudson’s death, also will be present at the execution.
“Bruce and his wife, Martha, have been like second parents to me,”
she said. “I can’t thank him enough for everything he has done. Not
only did he work with my dad, but they were personal friends.”
Hudson-Simmons said she and her children, James
and Julie, miss the man who they called father and grandfather. “He
truly loved what he did and the fact that he could make a difference
in people’s lives,” she said. “My son went on to become a Marine and
is now married and both he and my daughter grew up without him in
Mexia Police Detective Javier Ybarra also will
attend the May execution. Hudson impacted his life as a teenager.
“When he was a teenager, my dad caught him breaking into a store in
Fort Stockton,” Hudson-Simmons said. “Instead of taking him in and
putting him in juvenile detention, he gave him the talking to of his
life and made him ride in the county car for two weeks. He told me
if it hadn’t been for my dad, he might be in prison. This guy had a
rough childhood, too, but he didn’t go out and kill cops, he became
Many of Hudson’s friends and even his wife, Vera,
are now deceased, but his daughter says there is no denying that he
was full of life and taken too quickly. “Anyone who knew him knew
the kind of man he was, and I'm sure he would want to thank all of
the officers that were involved in this also,” she said. “He devoted
his life to the safety and welfare of others.”
Smith v. State, 907 S.W.2d 522 (Tex.Cr.App.
1995) (Direct Appeal).
Defendant was convicted in the 112th District
Court, Pecos County, Brock Jones, J., of capital murder of a law
enforcement officer and sentenced to death. He appealed. The Court
of Criminal Appeals, McCormick, P.J., held that: (1) grand jury
adjourned for more than three days with consent of court; (2)
defendant was not denied due course of law because of comments by
venireperson who was peremptorily struck by prosecution; (3) trial
court did not abuse its discretion in granting state's challenge for
cause of veniremember who opposed death penalty; (4) trial court
properly granted state's challenge for cause of jury veniremember
who admitted negative feelings about a prosecutor in a different
case; (5) it was within trial court's discretion to overrule
defendant's challenge for cause of prospective juror who indicated
predisposition to give greater credibility to a Texas Ranger by
virtue of that status; (6) defendant inadequately briefed various
points of error; (7) judge's instruction to jury to disregard
allegedly improper comments by prosecutor to defendant was
sufficient to cure any asserted harm; (8) state did not commit
prosecutorial misconduct by acting out the part of police officer
whose testimony it read into the record; (9) defendant was not
denied his right of confrontation when court sustained objection to
defense counsel's use of the word “beating” in cross-examining
police officer about his conduct toward defendant; and (10) trial
court lacked authority to sentence defendant to death after omitting
mandatory questions to jury. Judgment affirmed; sentence vacated;
and remanded. Clinton, J., filed a concurring opinion.
McCORMICK, Presiding Judge.
Upon retrial FN1, appellant, Charles Edward Smith, was convicted of
the August 1988 capital murder of a law enforcement officer. V.T.C.A.,
Penal Code, Section 19.03(a)(1). During the punishment phase the
jury affirmatively answered the special issues set forth in Article
37.071(b), V.A.C.C.P. The trial judge sentenced appellant to death
as required by Article 37.071(e), V.A.C.C.P. Direct appeal is
automatic. Article 37.071(h), V.A.C.C.P. We affirm appellant's
conviction, but vacate and remand his sentence for further
proceedings in accordance with Article 44.29(c), V.A.C.C.P.
FN1. Appellant was originally convicted for the
same offense and sentenced to death in August 1989. This Court
reversed the conviction in an unpublished opinion. Smith v. State,
No. 71,010 (Tex.Cr.App., December 4, 1991).
Appellant does not challenge the sufficiency of
the evidence, therefore we will dispense with a recitation of the
facts. Appellant raises thirty-two points of error. We will address
the points as they approximately occurred at trial.
Appellant alleges in point of error twenty-one
that the trial court erred in overruling his motion to quash the
indictment because “the grand jury which indicted [him] had
adjourned for more than three days without the consent of the court
in violation of the mandatory terms of Article 20.08 of the Texas
Code of Criminal Procedure.”
Article 20.08 provides: “The grand jury shall
meet and adjourn at times agreed upon by a majority of the body; but
they shall not adjourn, at any one time, for more than three days,
unless by consent of the court. With the consent of the court, they
may adjourn for a longer time, and shall as near as may be, conform
their adjournments to those of the court.”
In a pretrial hearing, the judge who impaneled
the grand jury testified as to his uniform policy: “It is my policy,
and I have each and every time that I have impaneled a Grand Jury in
the 112th District Court for at least two years, and probably three
years given the following instructions to each and every Grand Jury:
I have instructed the Grand Jury that as a housekeeping matter, I
need to inform them that the law does not allow them to recess for
more than three days without consent of the Court, and that I hereby
give the Grand Jury permission to convene upon proper instruction to
carry out the business that is prepared and to be presented, and
then to recess at the conclusion of that business for a period of
time of more than three days to be reconvened on proper summons to
consider further business.”
We read this instruction to give the grand jury
precisely the consent required under Article 20.08 for it to recess
for a period of more than three days. FN3 The State concedes that
the requirements of Article 20.08 are mandatory, but disagrees that
they were not met. In Miller v. State, 537 S.W.2d 725 (Tex.Cr.App.1976),
we held that Article 20.08 requires only the court's consent to
adjourn for more than three days and no formal order is required.
Given nothing to indicate that this was not done in the instant
case, we cannot say that the trial court erred in overruling the
motion to quash the indictment. Point of error twenty-one is
In his twenty-second point of error, appellant
alleges that he was denied due course of law under Article I,
Section 19 of the Texas Constitution in that “[t]he State so
distorted the lawful course of the whole voir dire by showing
through the first prospective juror, [name omitted], that the price
of honesty would be subject to practically unrestrained attack by
the prosecutor.” Given this, the State asked various questions
concerning the nature of the venireperson's complaint as well as to
whom she complained or otherwise spoke at the time of or since the
These questions prompted a variety of objections
from appellant regarding improper question and relevancy, some of
which were sustained and some of which were overruled. Also, many of
the objections were apparently argued in the venireperson's presence.
Finally, after over 150 pages of voir dire testimony, the State
exercised a peremptory strike on the venireperson and she was
excused with instructions not to talk to anyone about the process
until the case was over.
However, the venireperson did not receive this
instruction until after the court had recessed on at least one
occasion. Appellant alleges, without citation to any part of the
record, that this resulted in the venireperson communicating to the
other prospective jurors “a scenario of a bullying prosecutor
dominating the courtroom and creating an experience of harassment
Consequently, appellant further asserts, again
without citation to the record, this created a “chilling effect on
the voir dire of the other prospective jurors, including the twelve
jurors who were actually selected to serve.”
Assuming, arguendo, that error occurred in these
proceedings, we look to whether that error contributed to the
conviction or to punishment. Tex.R.App.Proc. 81(b)(2). If we
determine beyond a reasonable doubt that the error did not so
contribute, then no reversal is required. Id.
Appellant simply asserts that the harm that
allegedly occurred cannot be meaningfully measured. He references no
part of the record where he or anyone attempted to question other
venirepersons as to any negative feelings they may have formed from
anything they heard about the process. He merely speculates that
some of the remaining prospective jurors may have decided “to give
safe, as opposed to honest, answers in their own examination because
of [this venireperson's] experience[,]” without asking them or
otherwise trying to determine any ill effects.
The record, on the other hand, reveals the
following: first, voir dire was conducted individually FN4 so no
other prospective jurors observed the exchanges first-hand; second,
while we cannot ascertain exactly how many other venirepersons were
privy to the veniremember's remarks, the first person to actually be
selected as a juror was not chosen until some seven veniremembers
later, far more than the trial court could expect to question in one
day; and most importantly, third, the only remarks this venireperson
made to the veniremembers present in the jury room on that
particular day, contrary to appellant's assertions, were brief and
essentially neutral in character. The following colloquy, which
occurred on the trial court's calling time for a break, embraces the
entire gist of the remarks:
FN4. This aspect is not in dispute.
“THE COURT: Just step down and walk around and
when-before you come back in, in case we are into something that we
ought not be doing in your presence, would you just go back in the
jury room. And, please, don't warn any of those other jurors what
they are about to get into. It would be improper for you to talk to
them at all. “[THE VENIREMEMBER:] I already did. “THE COURT: About
what we are doing in here? “[THE VENIREMEMBER:] I already did. “THE
COURT: What did you tell them? “[THE VENIREMEMBER:] I just told them,
‘Get ready.’ “THE COURT: That's all right. No problem. Nothing
specifically about the questions? “[THE VENIREMEMBER:] Yes. I said
you have to make a decision on capital murder on the death penalty
or not. And I said you had better be able to tell them why and why
not. “THE COURT: All right.”
We cannot say that basically telling someone that
they are about to be subjected to questions on a particular topic
and that they will have to justify their position (or lack thereof)
would necessarily result in a “chilling effect.” We can say that the
comments we discern were made did not contribute to the conviction
or to punishment. The fact that most likely not even one person who
subsequently sat on the jury heard even these neutral remarks
further reinforces this holding. Point of error twenty-two is
In points twenty-three and twenty-five, appellant
alleges that the trial court erred in granting the State's
challenges for cause of venirepersons T. Brewer and R. Dominguez.
The challenge to Brewer came because of his
expressed opposition to the death penalty. When reviewing such
challenges, this Court has consistently followed the rule of
Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d
841 (1985), that a venireperson's views on capital punishment
support exclusion for cause only when they are such that they would
“prevent or substantially impair the performance of his duties as a
juror in accordance with his instructions and his oath.” Vuong v.
State, 830 S.W.2d 929, 942 (Tex.Cr.App.), cert. denied, 506 U.S.
997, 113 S.Ct. 595, 121 L.Ed.2d 533 (1992), Moody v. State, 827 S.W.2d
875, 888 (Tex.Cr.App.), cert. denied, 506 U.S. 839, 113 S.Ct. 119,
121 L.Ed.2d 75 (1992), Ellis v. State, 726 S.W.2d 39, 44 (Tex.Cr.App.1986),
cert. denied, 480 U.S. 926, 107 S.Ct. 1388, 94 L.Ed.2d 702 (1987).
The record reveals the following sequence of
events and pertinent exchanges. After the State explained the
procedures of trial and the jury's job of answering questions as
opposed to assessing punishment, the following colloquy ensued:
“[THE STATE:] In your response to question 55 you
say that you do not believe there should be a death penalty. * * * *
* * “Tell me about that. “[VENIREMEMBER:] Well, I don't think that
the State has a right or anybody has a right to take another
person's life because they have taken a life. If you have a choice,
you don't. And I think that in capital murder, in any punishment,
the State has a choice. And, therefore, I do think that if a person
is dangerous to society, you remove them from society so they don't
have any contact anymore for the rest of their life, but I don't
think that you have the right on the basis of expedience or revenge
or some other motive to take that life. * * * * * * “[THE STATE:]
Can you think of a situation, ..., where someone might be deserving
of the death penalty? “[VENIREMEMBER:] No. I thought about that a
lot, you know, some of the really terrible things you have seen on
television, some of the terrible things people have done, it makes
you very angry. “[THE STATE:] Give me some examples of the ones that
makes [sic] you angry. “[VENIREMEMBER:] Oh, someone who kidnapped a
child and-over a series of many months abuses, sexually abuses,
physically abuses, that child to the point of-and then finally kills
them. You know, that's a very heinous crime to me, especially having
children, but what-the second thought I have about that is that it's
[sic] my motivation is revenge and that's not an acceptable
motivation. And so it's always-first impulse may be in anger, but
the second I always-second impulses always, you know, what's the
motivation. And if it's revenge, then I don't think that's an
acceptable motivation. * * * * * * “[THE STATE:] And in that
situation [that you've just described] you don't believe that the
death penalty would be an adequate form of punishment? “[VENIREMEMBER:]
No. I think that the only acceptable form of punishment to me would
be life in prison.”
Then the State explains and develops the
individual punishment questions when the following transpires: “[VENIREMEMBER:]
See, I think I could say, ‘Yes,’ to the first one to say somebody is
going to be a continuing harm to society and needs to be removed
from the general public, but the second thing I would say that to me
the mitigating circumstance is life and not taking it. And so
whatever the characteristics of the person, to me, I would rather as
a taxpayer pay for their continued incarceration. “THE COURT: Is
there any set of circumstances you can imagine if you were a juror
knowing that we have the death penalty that you could answer that
second question, ‘No’? “[VENIREMEMBER:] I don't think so. * * * * *
* “[THE STATE:] So assume, for example, that back in our little
scenario that you hear nothing, nothing mitigating about that
defendant in that case, nothing, he has never done a good thing in
his life, would you answer that question, ‘Yes,’ knowing that a
‘Yes' answer would avoid the death penalty? “[VENIREMEMBER:] Yes.
“[THE STATE:] Is that based on strictly your personal views? “[VENIREMEMBER:]
Mitigating circumstances is the nature of life. “[THE STATE:] Can
you think-can you envision any case at all, any scenario, where the
death penalty would be appropriate to you? “[VENIREMEMBER:] No,
because it's up to the State to sufficiently isolate that person so
he can't do any more harm. They have control of him already.” After
this, appellant tried to rehabilitate the venireperson. “[APPELLANT:]
So getting it right down to the-what I perceive as the real issue
here, if you were on the jury and you heard the evidence, and the
nature of the evidence was such that the honest answer to those
issues that you are required to answer would cause the death penalty
to be imposed, would you then give a dishonest answer just to keep
the death penalty from being imposed? “[VENIREMEMBER:] No. I don't
think it's a dishonest answer. In the way that I read the questions
in talking about the mitigating circumstance, I mean, there are
mitigating circumstances outside the nature of the individual
involved.” When the State then challenged the venireperson for
cause, the trial judge asked for some clarification. “THE COURT:
Well, I'm sorry. I have-I just am a little bit unclear. You
indicated in a response to [appellant's] question that you would not
distort an answer on the mitigation question or make a dishonest
answer, isn't that correct? “[VENIREMEMBER:] Yeah. I would not make
a dishonest answer. “THE COURT: Does that mean that you can imagine
a situation wherein you would answer that question in such a way
that it would result in the death penalty? “[VENIREMEMBER:] The way
I understand that question is, are there any mitigating
circumstances. “THE COURT: Yes. “[VENIREMEMBER:] And, to me, there
are always mitigating circumstances in the nature of life. And so I
could honest-I can't imagine a situation in which I would say that
there aren't any mitigating circumstances.”
By the veniremember's definition, he would be
following the law and his oath, even if always answering the
mitigation issue in the affirmative, thereby mandating the trial
court to assess a life sentence. However, the United States Supreme
Court addressed a similar situation and found that jurors “whether
they be unalterably in favor of or opposed to the death penalty in
every case-by definition are ones who cannot perform their duties in
accordance with the law, their protestations notwithstanding.”
Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492
(1992); Staley v. State, 887 S.W.2d 885 (Tex.Cr.App.1994). This is
just such a juror. The trial court did not abuse its discretion in
granting the State's challenge for cause. Point of error twenty-three
In point twenty-five, appellant complains that
the trial court erred in granting the State's challenge to Ricardo
Dominguez under Article 35.16(a)(9), V.A.C.C.P. Appellant basically
alleges: 1) that the State did not show sufficient bias to sustain a
challenge for cause, and 2) that a bias against the State does not
qualify as a bias in favor of the defendant and that only the latter
is allowed under the Code, not the former. The latter contention is
without merit. As the Amarillo Court of Appeals stated in Ransom v.
State, 630 S.W.2d 904, 908 (Tex.App.-Amarillo 1982):
“The obvious purpose of the provisions is to
guarantee fair and impartial jurors for both the State and the
defendant. When a juror expresses an inability to be fair and
impartial to the State, that juror is expressing a bias for the
defendant and is properly excused.” See also Holland v. State, 761
S.W.2d 307, 317 (Tex.Cr.App.1988), cert. denied, 489 U.S. 1091, 109
S.Ct. 1560, 103 L.Ed.2d 863 (1989); McCary v. State, 477 S.W.2d 624,
628 (Tex.Cr.App.1972). However, the question remains whether an
actual, sufficient bias existed. For this, we must look at the
totality of the voir dire.
According to Webster's Ninth New Collegiate
Dictionary (1991), to “equivocate” means to “avoid committing
oneself in what one says” and this Court has said on numerous
occasions that it is properly within the judge's discretion to grant
a challenge for cause to an equivocating juror. Zimmerman v. State,
860 S.W.2d 89, 96 (Tex.Cr.App.1993), vacated on other grounds, 510
U.S. 938, 114 S.Ct. 374, 126 L.Ed.2d 324 (1993).
At one point in the voir dire, the State was
asking about an in-law's conviction. The State then attempted to
explore whether the veniremember harbored any bias or ill will
toward the State pursuant to this incident that might taint its
case. The gist of the responses during the entirety of Dominquez'
approximate 17 pages of voir dire can be seen in the following:
“[THE STATE:] How does that make you feel about [the
prosecutor]? “[VENIREMEMBER:] I don't know what to tell you. “[THE
STATE:] Just give me your real feelings.... Whatever your true
feelings are is what I want to know. “[VENIREMEMBER:] I guess not
very good. “[THE STATE:] Okay. If he was a prosecutor in this case,
do you think you might hold that against him in the presentation of
his case ...? “[VENIREMEMBER:] Well, I guess. I got some mixed
feelings there, you know. I guess I would have some kind of feelings.
* * * * * * “THE COURT: My feeling is-what I understand from what
I'm hearing there is, you have negative feelings about [the
prosecutor], is that right? “[VENIREMEMBER:] I guess, yeah.” Finally,
the following occurred: “THE COURT: Now, in that criminal case the
prosecutor is [name omitted], will your feelings about him influence
or affect your verdict to any degree? “[VENIREMEMBER:] I don't guess
it would. I don't guess it would. “THE COURT: You could set it aside?
“[VENIREMEMBER:] I think I could. “THE COURT: Pass the juror. “[THE
STATE:] Do you think you could? “[VENIREMEMBER:] I think I could. I
think I could. “[THE STATE:] Okay. Pass the juror.”
Whether the defense then misunderstood whether or
not he could ask questions or whether he just passed the
veniremember without attempting to is unclear. Suffice it to say
that the veniremember never gave an answer less equivocal than “I
think ...” or “I guess....” In Williams v. State, 565 S.W.2d 63 (Tex.Cr.App.1978),
a prospective juror was erroneously not excused where he admitted a
prejudice against the accused, even though he stated he could
disregard his prior association with the accused and base his
decision on the evidence and the court's charge. While a trial court
may hold a juror qualified who states that he can lay aside an
opinion he may have formed, no such discretion vests in the court
with reference to a juror with a bias or prejudice against the
parties. Gonzalez v. State, 169 Tex.Crim. 49, 331 S.W.2d 748 (1960).
When the feeling expressed by a prospective juror
is one of bias or prejudice in favor of or against the defendant (as
opposed to a bias or prejudice against the law), it is not
ordinarily deemed possible for such a juror to be qualified by
stating that he can lay aside such prejudice or bias. Williams,
supra, at 65; Mize v. State, 754 S.W.2d 732 (Tex.App.-Corpus Christi
1988); and Burton v. State, 805 S.W.2d 564 (Tex.App.-Dallas 1991).
Point of error number twenty-five is overruled.
In the related point twenty-four, appellant avers
that the trial court erred when it denied appellant's challenge for
cause against venireperson Ted White. Specifically, appellant
contends that White was properly challengeable for cause because he
was predisposed to give greater credibility to the testimony of a
Texas Ranger resulting in a bias against appellant.FN5 Article
FN5. We note this is in direct contradiction to
appellant's point of error twenty-five and in support of our
holding: a bias for the State is, in effect, a bias against
FN6. Appellant professes to have preserved his
point of error for our review by 1) utilizing all of his peremptory
strikes, 2) requesting and being denied additional strikes, and 3)
having to accept an objectionable juror he otherwise would have
struck. However, appellant is mistaken. The venireperson appellant
alleges was objectionable (Gomez) was selected as an alternate.
Under Article 35.15(d), V.A.C.C.P., strikes for alternates and
strikes for the main jury are totally separate and may not be used
in lieu of each other. Therefore, appellant's objection to Gomez
only applies in the alternate juror context.
Furthermore, the record reveals the sequence of
events was as follows: (1) appellant used his 11th peremptory strike
and the court, sua sponte, granted him an additional peremptory; (2)
appellant subsequently used his 12th and 13th strikes; (3) appellant
challenged one Cynthia Hokit for cause, which challenge was denied,
so appellant used his 14th peremptory strike. (4) After a recess,
the court reconsidered and granted the challenge for cause at which
time appellant withdrew the use of his peremptory strike (an action
in which the court agreed), thus restoring his 14th strike. (5)
Appellant subsequently reused that 14th and later, his 15th. (6)
When the 12th juror was seated, appellant objected to this juror,
claimed that he was out of peremptory challenges, asked for and was
denied more peremptory challenges.
Had appellant truly been out of peremptory
challenges, this last step would have been the preserving step.
However, the record clearly indicates that he still had the extra
strike that had been granted much earlier. But, apparently no one
was keeping sufficient track of the peremptories to point this out.
Hence, the point of error is technically not preserved since
appellant had not actually run out of peremptories. However, because
the State does not argue preservation, we will address the merits of
In his argument, appellant relies almost
exclusively on Hernandez v. State, 563 S.W.2d 947 (Tex.Cr.App.1978).
In that case, the prospective juror stated a belief that a police
officer would not tell a lie in any case. Hence, that person was
biased as a matter of law in that she was effectively prevented from
impartially judging the credibility of the witnesses.
Thus, the venireperson was properly challengeable.
However, in this case, White was not professing that a Texas Ranger
would always be believable simply by virtue of his position. Rather,
he stated that while he might tend to believe people in certain
professions over some other people he would still listen to both
sides and make up his mind depending on the facts and circumstances
presented. In fact, the venireperson specifically stated at one
point that he believes law enforcement officers can lie.
Given the totality of the voir dire, we hold the
situation to be easily distinguishable from Hernandez, supra. The
record before us fails to establish a bias as a matter of law.
Anderson v. State, 633 S.W.2d 851 (Tex.Cr.App.1982). Thus, it was
within the trial judge's discretion to overrule the challenge for
cause. See Montoya v. State, 810 S.W.2d 160, 170-72 (Tex.Cr.App.1989),
cert. denied, 502 U.S. 961, 112 S.Ct. 426, 116 L.Ed.2d 446 (1991).
Point of error twenty-four is overruled.
In point of error seventeen, appellant contends
that the State's allegedly improper questions and sidebar remarks to
appellant during its cross-examination of him denied appellant a
fair and impartial trial. To begin, we feel compelled to note the
inadequacy of appellant's “Argument and Authorities” for the instant
point. The entirety of this section consists of one paragraph which
incorporates the arguments made for points of error fourteen,
fifteen, and sixteen.
In reference to this incorporation, appellant
adds the statement, “Suffice it to say, however, that the
prosecutor's actions in the instant point of error constitute a
continuing pattern of misbehavior intended to deny the appellant a
fair trial.” (Emphasis added.)
Regardless of any similarity in argument, points
fourteen, fifteen, and sixteen all concern errors allegedly
committed in the punishment phase of trial.FN7 Point seventeen,
although it occurs later in the appellate brief, concerns errors
allegedly committed in the guilt/innocence phase. Thus, those
complaints in point seventeen occurred chronologically prior to
those complaints in points fourteen, fifteen, and sixteen and cannot
show a pattern which continues from those points.
FN7. Hence these points are not addressed in this
opinion due to our sustaining of point of error thirty.
Furthermore, point fourteen concerns references
to parole, a topic clearly of no concern in the instant point of
error. Point fifteen is couched in terms of prosecutorial misconduct
and only cites two cases, both of which refer to improper questions
that result in obvious harm and are clearly calculated to inflame
the jury. Nowhere is the law applied to the facts or even how it
relates to the alleged error in this instance. And finally, point of
error sixteen is also couched in terms of prosecutorial misconduct.
In addition to the same two cases cited for point fifteen, appellant
adds two cases concerning repeated acts of misbehavior on the part
of the prosecutor.
Given that point seventeen does not concern the
topic of parole law, nor is it couched in terms of prosecutorial
misconduct, we do not see how the limited authorities are applicable
here. Furthermore, even if they could be stretched to apply,
appellant has nowhere in this point applied the law to the facts
thus showing why he should prevail in this instance. For these
reasons we hold this point of error to be inadequately briefed under
Texas Rules of Appellate Procedure 74(f).
Finally, we note that in each of the three
complained of instances of improper comments in this point,
appellant received an instruction to the jury to disregard the
allegedly improper statement. Under the circumstances, we hold this
sufficient to cure any harm that might otherwise have occurred. See
Norris v. State, 902 S.W.2d 428 (Tex.Cr.App.1995); Hendricks v.
State, 640 S.W.2d 932, 939 (Tex.Cr.App.1982). And in his fourth
complained-of instance, wherein he alleged that the prosecutor was
pointing a gun at appellant in order to intimidate him FN8,
appellant received the instruction he requested for the State not to
take this action. Because appellant received all that he requested,
there is nothing for this Court to review. Purtell v. State, 761 S.W.2d
360, 372 (Tex.Cr.App.1988), cert. denied, 490 U.S. 1059, 109 S.Ct.
1972, 104 L.Ed.2d 441 (1989); Easterling v. State, 710 S.W.2d 569,
580 (Tex.Cr.App.), cert. denied, 479 U.S. 848, 107 S.Ct. 170, 93
L.Ed.2d 108 (1986). Point of error seventeen is overruled. FN8. An
action denied by the State.
Appellant argues in point eighteen that the
prosecutor's questioning of Daniel Tsongas “violated the appellant's
right to a fair and impartial trial in that the prosecutor
repeatedly disregarded the trial court's instructions and he
deliberately testified as to facts that were inadmissible.” As in
point of error seventeen above, appellant again cites us to no
authority to support this point of error, but merely states that
“[t]he arguments and authorities relied upon in points of error
fourteen, fifteen, sixteen and seventeen, supra, are also applicable
to the instant point of error and are reurged in this point of
We again hold that these arguments and
authorities are different in character from the error alleged under
the present point. We find this point to be inadequately briefed
pursuant to the dictates of Texas Rule of Appellate Procedure 74(f)
and thus nothing is presented for our review. Point of error
eighteen is overruled.
Appellant alleges in point of error nineteen that
the State denied appellant a fair and impartial trial by committing
prosecutorial misconduct in violating an agreed stipulation
concerning the testimony of Texas Ranger Joe Coleman. Specifically
he makes two arguments: 1) that the prosecutor violated Texas Rule
of Evidence 804(b)(1) and, 2) that the prosecutor violated an agreed
stipulation concerning the testimony.
The facts underlying this point of error are as
follows: the State offered the former testimony of Ranger Coleman
which had been given at appellant's first trial since the officer
had died prior to the second trial. In reading this former testimony
into the record, the State basically “acted out” the part of the
officer, including interpreting what actions the officer might have
taken in being handed a gun and badge. These interpretive actions
drew objections from appellant which were then sustained by the
While appellant does not argue that the testimony
itself was inadmissible under Rule 804(b)(1), he does argue that the
rule provides only for reading said testimony into the record and
nothing more. In fact, Rule 804(b)(1) says nothing about how such
former testimony can be placed into the record, only that it is not
excluded as hearsay.FN9
As to the alleged violation of an agreed
stipulation, we find references to this stipulation in the record,
but we do not find the actual stipulation. Moreover, what testimony
we do read evidencing its actual content is disputed between the
parties. Given no further argument or authority, we cannot say that
error occurred. Point of error nineteen is overruled.
Appellant contends in point twenty that the
cumulative effect of the improper questions asked by the prosecutor
denied appellant a fair and impartial trial. Again appellant's
alleged error focuses on points of error fourteen through nineteen.
Again we overrule his point of error. As we stated in earlier parts
of this opinion, points fourteen through sixteen allege errors
during the punishment stage. Any error that might have occurred at
this point in the trial is moot pursuant to our disposition of point
of error thirty. The other alleged errors were either cured by
instruction, not error, or not briefed adequately enough for us to
The only additional argument appellant has
provided for this point of error (other than again relying on the
paucity provided under the cited points) is a recitation of harmless
error analysis under Harris v. State, 790 S.W.2d 568, 587-88
(Tex.Cr.App.1989). However, appellant has given us no further
application of the law to the facts nor shown us any other reason
why our disposition of the separate points should not apply here as
well. Tex.R.App.Proc. 74(f). As such, point of error twenty is
In points twenty-six and twenty-seven, appellant
claims that he was denied his right of confrontation in that he was
not allowed to use the verb “beat” in his cross-examination of a
State's witness.FN10 In his argument on these points of error,
appellant explains that one aspect of his defensive theory was that
he received a “beating” at the hands of the police upon his arrest
and that this later colored the so-called voluntariness of his
confessions. He asserts that his not being allowed to describe this
incident as a “beating” effectively denied him the right to fully
cross-examine the witness on this important aspect of his defense.
FN10. Point twenty-six alleges that this is a
violation under the Sixth and Fourteenth Amendments to the United
States Constitution and point twenty-seven argues it is a violation
under Article I, Section 10 of the Texas Constitution.
The record reveals that appellant was on the
ground when Deputy Bobby Calloway encountered him, but appeared as
if he was trying to get up and had his hands concealed underneath
him. Calloway testified on direct that he struck appellant around
the head with the butt of his shotgun in order to get him under
control. Appellant then began his cross-examination by asking, “So
this was just a little short beating with the butt of the shotgun?”
When the State objected to the terminology being used, the trial
court overruled the objection and allowed the characterization to
stand. The officer immediately responded that there was no beating.
It was not until after appellant persisted in
characterizing the incident as a beating and the officer continued
to deny that a beating occurred that the State again objected. At
that time, the following transpired: “[APPELLANT:] Okay. So your
testimony to Mr. Johnson was that you could have killed him, but you
just beat him with the shotgun butt instead, under the circumstances?
“[THE STATE:] Your Honor, I'm going to object to this ‘beating’ the
defense attorney keeps wanting to use in his description of what
took place. It was a striking, at the most. “[APPELLANT:] Your
Honor, if the prosecutor wants to testify, he should be sworn to
take the stand. That's not an objection. “[THE STATE:] The defense
attorney has been testifying in here the whole proceeding, and I'm
objecting now to his continued use of the descriptive language that
the evidence doesn't support, Your Honor. “THE COURT: Sustain the
We agree with the State. Appellant's continual
characterization of the incident as a “beating” was in direct
contradiction to the evidence up to that point in the trial and the
trial judge properly sustained the objection. However, it is clear
that up until the sustaining of that objection appellant was allowed
to and did attribute the description of “beating” to the occurrence.
It is just as clear that appellant was in no other way prohibited
from questioning police officers about any alleged use of excessive
force at the time of appellant's arrest.FN11 Points of error twenty-six
and twenty-seven are overruled.
FN11. Appellant makes this same complaint with
regard to his questioning of one Lieutenant Johnny Hatcher. However,
we find the same holding to apply.
In point of error thirty, appellant alleges that
the trial court erred in not instructing the jury as required by
Articles 37.071 and 37.0711, V.A.C.C.P. He explains that the court
did not ask the jury whether the killing was “deliberate” or whether
the killing was unreasonable in response to any provocation by the
decedent. Therefore, he maintains, the court sentenced appellant to
death without the authority to do so. We agree.
Appellant committed the instant offense in its
entirety in 1988. This trial commenced around April, 1992. Hence,
the parties first logically looked to the Texas Code of Criminal
Procedure in effect at that time. This version of the Code reflects
the Legislature's 1991 changes to Article 37.071 removing the
question of deliberateness from the jury's consideration. However,
the Senate Bill that was passed enacting these changes to the Code
also expressly stated:
“SECTION 5. (a) The effective date of this Act is
September 1, 1991, and the change in law made by this Act applies
only to an offense that is committed on or after September 1, 1991.
* * * * * * “(b) An offense before the effective date of this Act is
covered by the law in effect when the offense was committed, and the
former law is continued in effect for this purpose.” Tex.S.B. 880,
Sec. 5, 72nd Leg., R.S.1991 V. T.S.L.S. Chapter 838.
Hence, these changes did not apply to appellant's
trial and the prior Article 37.071 including the deliberateness
question controlled. By failing to give this question at trial, the
court received an incomplete verdict and thus was without authority
to sentence appellant to death. FN12 Powell v. State, 897 S.W.2d 307
(Tex.Cr.App.1994). Appellant's thirtieth point is sustained.
FN12. The provocation issue, on the other hand,
is required only if there is evidence of provocation by the victim.
Given our ruling as to the omission of the “deliberateness” issue,
we need not address this contention.
In light of this holding, the remaining points of
error arising from and affecting only the punishment stage of
appellant's trial, none of which challenge the sufficiency of the
punishment evidence, are dismissed as moot. FN13 Under the mandate
of Article 44.251, V.A.C.C.P., we affirm the judgment, but vacate
appellant's sentence of death and remand to the district court for
further proceedings in accordance with the dictates of Article
FN13. This includes points one through sixteen,
twenty-eight, twenty-nine, thirty-one, and thirty-two.
Smith v. State, 74 S.W.3d 868 (Tex.Cr.App.
2002) (Direct Appeal).
Defendant was convicted in the 112th District
Court, Pecos County, Brock Jones, J., of capital murder of a law
enforcement officer, and was sentenced to death. He appealed. The
Court of Criminal Appeals reversed. Defendant was again convicted
and sentenced to death. The Court of Criminal Appeals, 907 S.W.2d
522, affirmed judgment but vacated sentence and remanded for new
punishment hearing. On remand, defendant was again sentenced to
death, and he appealed.
The Court of Criminal Appeals, Price, J., held
that: (1) evidence showed future dangerousness justifying death
penalty; (2) the same jury did not have to hear guilt-innocence
phase and punishment phase; and (3) imposition of death penalty
after 12-year imprisonment was not cruel and unusual punishment.
PRICE, J., delivered the opinion of the unanimous
In August 1989, a Pecos County jury found the appellant guilty of
capital murder and answered the punishment issues in a manner
requiring the imposition of the death penalty. We reversed the
conviction. Smith v. State, No. 71, 010 (Tex.Crim.App. December 4,
1991) (not designated for publication). The appellant was again
convicted of capital murder and received the death penalty. We
affirmed the conviction but reversed the death sentence and remanded
the case for a new punishment hearing. Smith v. State, 907 S.W.2d
522, 534 (Tex.Crim.App.1995).
Now we consider the appellant's third trial on
punishment conducted in November 1999, in which the jury answered
three special issues pursuant to Article 37.0711, sections 3(b) and
3(e), and the trial court again sentenced the appellant to death.
Tex.Code Crim. Proc. art. 37.0711 § 3(g).FN1 Direct appeal to this
Court is automatic. Art. 37.0711 § 3(j). The appellant raises five
points of error. We will affirm.
In his first point of error, the appellant
challenges the legal sufficiency of the evidence to support the
future dangerousness issue. In evaluating the sufficiency of the
evidence to support the jury's answer to the future dangerousness
special issue, we view the evidence in the light most favorable to
the verdict and determine whether any rational trier of fact could
have found beyond a reasonable doubt that there is a probability
that the appellant would commit criminal acts of violence
constituting a continuing threat to society. Jackson v. Virginia,
443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Allridge v.
State, 850 S.W.2d 471, 487 (Tex.Crim.App.1991). We have enumerated a
non-exclusive list of factors that the jury may consider in
determining whether a defendant constitutes a continuing threat to
(1) the circumstances of the capital offense,
including the defendant's state of mind and whether he was acting
alone or with other parties; (2) the calculated nature of the
defendant's acts; (3) the forethought and deliberateness exhibited
by the crime's execution; (4) the existence of a prior criminal
record and the severity of the prior crimes; (5) the defendant's age
and personal circumstances at the time of the offense; (6) whether
the defendant was acting under duress or the domination of another
at the time of the commission of the offense; (7) psychiatric
evidence; and (8) character evidence.
Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App.1987);
accord Reese v. State, 33 S.W.3d 238, 245 (Tex.Crim.App.2000). In
the appropriate case, the circumstances of the offense alone may
warrant an affirmative answer to the future dangerousness special
issue. Sonnier v. State, 913 S.W.2d 511, 517 (Tex.Crim.App.1995).
Here, the State presented evidence of the facts
surrounding the capital murder. After escaping from a Kansas
correctional facility in August 1988, the appellant and his cousin
stole a truck and drove to the Houston area where they burglarized
several homes and stole, among other things, a .357 magnum pistol
and ammunition. They then stole a van and began driving west toward
On August 19, 1988, the appellant and his cousin
drove away from a gas station in Bakersfield, Texas, without paying
for gas. Officer Tim Hudson and two other patrol cars responded to
the theft call and engaged the appellant and his cousin in a car
chase, which ended with the appellant firing three shots at Hudson's
car, one of which fatally wounded Hudson.FN2 Hudson had momentarily
driven along side of the appellant and had not unstrapped his gun
holster or rolled down his car window.
FN2. The appellant's cousin handed the appellant
the gun, but did not tell the appellant to shoot Hudson. Furthermore,
in his confession, the appellant stated that he was not afraid or
under the domination of his cousin.
The appellant and his cousin continued to evade
police. While unsuccessfully trying to steal a pick-up truck, the
appellant and his cousin stole a .22 rifle and ammunition. They
eventually stopped at a local farm where they were able to steal a
tractor-trailer and set the van on fire. The appellant and his
cousin then encountered a police road block, did a U-turn in the
road, and another high speed chase ensued. Several branches of law
enforcement, including a helicopter from the United States Customs
The chase exceeded speeds of 100 miles per hour
and involved shots fired both at and from the stolen
tractor-trailer. The appellant eventually drove the tractor-trailer
off the road and was apprehended. He later confessed to the entire
The State also presented testimony concerning the
appellant's behavior in Kansas and in the Pecos County Jail. In
Kansas, the appellant and some friends tried to pick up several
girls that they saw at a store, but the girls were not interested.
The appellant and his friends followed the girls
home and again unsuccessfully tried to pick them up; the encounter
eventually devolved into an exchange of obscenities. The girls'
brothers heard the cursing and came outside. The appellant and his
friends cursed and threw lit firecrackers at them before driving
The appellant and his friends returned shortly
thereafter and slowly drove around the home several times. The
police were called and a report was made. Less than an hour after
the police left, however, the appellant and his friends returned.
The girls' brothers jumped in their car and a chase ensued. The
appellant and his friends came to a stop. The brothers exited with
sticks in their hands and approached the appellant's car. The
appellant and the driver got out of their car and the driver shot
two of the brothers, killing one.
Before the shooting, the appellant yelled at the
driver to “Shoot the fucking Mexican!” Also, testimony indicated
that the rifle used in the shooting had been stolen by the appellant
and his friends shortly before returning to the girls' home.
The appellant got back in the car, drove the car
between the shooter and the remaining brothers, picked up the
shooter, and then drove off. The appellant confessed to the above
events, but had a “flippant” attitude towards the crime. FN3 He was
sent to a minimum security prison unit in Kansas.
FN3. In fact, the Kansas sheriff testified that
the appellant and his friends were laughing and joking about the
While in the Kansas jail for his part in the
shooting, the appellant retaliated against a correctional officer
who had reported him for a disciplinary violation by hitting her in
the arm.FN4 The officer said that the appellant was “smuggish” about
this violation and gave an insincere apology. The corrections
officer testified that the appellant escaped with one month left on
FN4. The testimony revealed that touching a guard
at the Kansas facility was considered a “very serious offense.”
Also, while incarcerated in the Pecos County jail
for the instant offense, the appellant admitted to a cellmate that
killing Hudson fulfilled his life's goals and that he “slept like a
baby” the night after the murder. The appellant also perverted the
lyrics to the Bob Marley song “I Shot the Sheriff,” singing in his
cell, “I shot the Sheriff but in my case it was the deputy.”
After a 1996 cell and strip search conducted by
Pecos County jailors, the appellant became enraged that jailors had
“tor[n] up his stuff.” He destroyed several light fixtures and a TV
in the day room, and his cell door window. In the process, he threw
light bulbs and other debris through the bars and at the deputies
who were in the control room. He then started a fire by lighting his
blanket. Before the appellant was finally subdued, he threatened to
kill the first person through the door.
Furthermore, various Pecos County law enforcement
officers characterized the appellant as very aggressive and more
aggressive than most inmates, a danger to both the inmates and the
prison personnel, and a dominating force in the prison. One witness
described the appellant as having “moods,” one day he could be as
“docile as can be,” and the next day he could be a “raging, crazy,
In addition, prison personnel often discovered
contraband, including a shank and pieces of metal, in the
appellant's cell. Although the appellant did not use a shank against
other inmates, he had assaulted other inmates, some of which were
“serious fights.” The appellant had also grabbed a deputy through
the cell bars, which resulted in a minor scuffle.FN5 Each witness,
whether from Kansas or Texas, who was asked about the appellant's
reputation for being a peaceful person answered that they thought it
was bad. FN6
FN5. The deputy testified that it was unclear
whether the appellant was trying to escape or angry with the deputy
for not getting him a cup of ice.
FN6. In fact, one woman testified in response to
defense counsel's question that she did not think that the appellant
had any good or redeeming qualities.
There was no psychiatric evidence presented or
evidence concerning the appellant's background. The appellant was
twenty-two years old at the time of the offense.
The evidence concerning the appellant's future
dangerousness supports the jury's verdict. The appellant and his
cousin, both fugitives from a correctional facility, pillaged their
way from Kansas to West Texas, ultimately shooting at and killing a
police officer who had not threatened them other than by flashing
his lights and pulling up along side them.
Throughout their flight, their behavior of
switching vehicles and evading local peace officers, shooting
firearms, and fleeing at speeds in excess of 100 miles per hour,
exhibited both forethought and deliberateness to avoid capture from
their escape from Kansas as well as a disregard for the lives of
their pursuers and innocent bystanders.
The murder of Officer Hudson also shows an
increasing disrespect for human life, as the appellant evolved from
an accomplice encouraging the murder in Kansas to the triggerman
himself in Texas. See King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997)
(an escalating pattern of disrespect for the law supports a finding
of future dangerousness). Furthermore, shortly after the appellant
was caught, he expressed no remorse and had a cavalier attitude
about having killed Officer Hudson. See Rachal v. State, 917 S.W.2d
799, 806 (Tex.Crim.App.1996) (lack of remorse may be a factor in
determining future dangerousness).
Finally, the evidence of the appellant's violent
behavior in prison reveals his continuing volatility and bad
character. The evidence shows a person who has a temper, is
aggressive, dangerous, violent, and dominating-a danger to those
After viewing the evidence in the light most
favorable to the verdict, we hold that a rational jury could have
reasonably concluded that the appellant would commit criminal acts
of violence that would constitute a continuing threat to society.
Allridge, 850 S.W.2d at 487. We overrule point of error one.
In points of error two, three, and five, the
appellant alleges that we should reverse and remand this case for a
new trial on guilt-innocence or nullify the third punishment hearing
under the doctrine of collateral estoppel because the trial court
did not submit a deliberateness issue to the jury following the
punishment phase of the second trial.FN7
FN7. We remanded the case on punishment because
the trial court failed to submit the deliberateness issue at the
punishment phase of the second trial. See Smith v. State, 907 S.W.2d
522, 534 (Tex.Crim.App.1995) ( “[b]y failing to give [the
deliberateness] question at trial, the court received an incomplete
verdict and thus was without the authority to sentence appellant to
The trial court did submit the deliberateness
issue after the third punishment phase, from which the appellant now
appeals: “Do you find from the evidence beyond a reasonable doubt
that the conduct of the defendant that caused the death of TIM
HUDSON was committed deliberately and with reasonable expectation
that the death of TIM HUDSON or another would result?”
Assuming without deciding that the appellant has
not procedurally defaulted on these claims, the claims fail on the
merits. FN8 In his second point of error, the appellant argues that
this Court's failure to reverse and remand on guilt-innocence, as
well as punishment, violated the Sixth Amendment and due process.
Because the “legislature defined capital murder punishment by death
as including the element of deliberateness,” Powell v. State, 897
S.W.2d 307, 318 (Tex.Crim.App.1994) (plurality opinion), overruled
by Prystash v. State, 3 S.W.3d 522 (Tex.Crim.App.1999), the
appellant argues that the same jury should have considered the guilt-innocence
phase and deliberateness special issue.
The appellant also argues that treating the
deliberateness issue as a special aggravating circumstance,
affecting only a defendant's sentence, would exceed the
constitutional limits on a state's power “to determine whether a
jury's finding of fact about a crime is an element of the offense.”
FN8. The State argues that the appellant has
procedurally defaulted points of error two, three and five. See
Tex.R.App. P. 33.1(a)(1); cf. Clark v. State, 994 S.W.2d 166, 169 (Tex.Crim.App.1999)
(Johnson, J., concurring) (arguing that issues regarding this
Court's ability to remand a case for a new punishment phase alone
raised for the first time after order for remand on punishment and
conclusion of new punishment phase are procedurally defaulted).
FN9. The appellant also argues that the issue of
deliberateness has three other qualities to distinguish it from an
“ordinary statutory aggravating factor”: (1) it defines a culpable
mental state, (2) that had to exist to make homicide a capital
offense under Texas law regardless of any of the other circumstances
of the crime, and (3) the double jeopardy clause bars the State from
seeking the death penalty at a retrial if the evidence was legally
insufficient to prove it. The appellant fails to support or clearly
argue this position. Tex.R.App. P. 38.1(h).
The appellant mistakenly relies on Apprendi v.
New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),
for the proposition that a sentencing factor like deliberateness
constitutes a fact finding that must be made by the same jury who
In Apprendi, the United States Supreme Court
found that a New Jersey hate crime statute violated the Fourteenth
Amendment's guarantee of due process because it allowed sentence
enhancement (the effect of which was to turn a second-degree felony
into a first-degree felony) based upon the judge's fact finding of
racial motivation by a preponderance of the evidence. Apprendi, 530
U.S. at 491-92, 120 S.Ct. 2348.
The Supreme Court's decision to strike down the
New Jersey statute turned on its constitutional rule that “[o]ther
than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” Apprendi,
530 U.S. at 490, 120 S.Ct. 2348.
First, despite the language quoted by the
appellant in Powell, we did not treat “deliberateness” as an element
of capital murder. We remanded the case to the trial court under
article 44.29(c) for a new punishment hearing, but affirmed the
determination of guilt for capital murder. Powell, 897 S.W.2d at
318. There was no suggestion that the omission of the deliberateness
special issue somehow negated the determination of guilt of capital
murder. Id.; Smith v. State, 907 S.W.2d at 534. If anything, the
quoted language in Powell should be read to mean that the
“deliberateness” special issue is an element of the death penalty,
not of capital murder.
Second, even if we consider “deliberateness” to
be an element of capital murder, the Texas scheme complies with
Apprendi's constitutional rule-the deliberateness special issue is
answered by the jury and proved by the State beyond a reasonable
doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348; Art. 37.0711 §
Finally, we see nothing in Apprendi that suggests
that the same jury must consider the guilt-innocence and punishment
phases where the trial court submits an issue of deliberateness, as
the appellant argues. Apprendi requires only that “any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added).
As we pointed out above, the Texas scheme follows
Apprendi's constitutional rule. We may reverse and remand any
capital case for a punishment hearing alone before a new jury. See
Ransom v. State, 920 S.W.2d 288, 297-98 (Tex.Crim.App.1994); Smith,
907 S.W.2d at 534; Powell, 897 S.W.2d at 318. The appellant fails to
convince us that he suffered a Sixth Amendment or due process
violation. We overrule point of error two.
In his third point of error, the appellant argues
that the State waived its right to submit the issue of
deliberateness in the third punishment phase hearing because it
failed to have the trial court present the issue at the retrial.
For offenses committed before September 1, 1991,
the trial court is required to include the deliberateness special
issue in the jury charge at the punishment phase. Art. 37.0711 §
3(c); Powell, 897 S.W.2d at 316-18. The inclusion of the
deliberateness special issue is a directive of the trial court and
not a right of the parties; it may not be waived by the litigants.
Busby v. State, 990 S.W.2d 263, 268 (Tex.Crim.App.1999) (citing
Powell for the proposition that the deliberateness special issue
cannot be waived); Powell, 897 S.W.2d at 316-318; cf. Ex parte
McJunkins, 954 S.W.2d 39, 40 (Tex.Crim.App.1997) (noting that Penal
Code section 3.03 is a right of the litigants that may be waived, as
opposed to article 42.12, section 3(g)(a), which is an absolute
directive or prohibition on the trial court).
A defendant, however, is estopped from
complaining on appeal of the omission of the deliberateness special
issue if the defendant invites the error of omission. Prystash, 3
S.W.3d at 532. Here, neither the defendant nor the State invited the
error of omission; the State did not procedurally default. FN10 Id.;
Busby, 990 S.W.2d at 268; Powell, 897 S.W.2d at 316-318. We overrule
point of error three.FN11
FN10. The appellant's argument is
counterintuitive. The deliberateness special issue helps the
defendant and is an extra burden for the State. Because of the
benefit received by the appellant from its inclusion in the charge,
his argument seems backwards; there is a more logical argument that
the defendant waived the deliberateness special issue himself.
Because it is the trial court's duty to include the deliberateness
special issue, however, and the defendant did not invite the error,
the defendant did not procedurally default on the inclusion of the
Furthermore, we do not treat omissions of the
deliberateness special issue as a “waiver.” Smith, 907 S.W.2d at 534
(remanding for a new punishment phase hearing because of the
omission of the deliberateness special issue); Powell, 897 S.W.2d at
318 (same); cf. Prystash, 3 S.W.3d at 532 (“But we do not treat
omissions of the elements of the offense as waivers.”).
In his fifth point of error, the appellant
alleges that the doctrine of collateral estoppel precluded the State
from presenting the deliberateness issue at the punishment rehearing.
Collateral estoppel, one of the protections provided by the Fifth
Amendment guarantee against double jeopardy, simply means that when
an issue of ultimate fact has once been determined by a valid and
final judgment, that issue cannot again be litigated between the
same parties in any future lawsuit. Ashe v. Swenson, 397 U.S. 436,
443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).
The deliberateness issue was not submitted to the
jury in the 1992 punishment hearing. Accordingly, the issue was not
determined in the 1992 punishment hearing. Because the issue was not
determined in the 1992 punishment hearing, the doctrine of
collateral estoppel is inapplicable. FN12 Ashe, 397 U.S. at 443, 90
S.Ct. 1189. We overrule point of error five.
FN12. Ex parte Tarver, 725 S.W.2d 195 (Tex.Crim.App.1986)
is not applicable in this case. In Tarver, the trial court in the
prior proceeding had expressly found an allegation to be untrue. Id.
at 198. No such determination was made in this case.
In his fourth point of error, the appellant
argues that his death sentence should be reformed to life in prison
because executing him after he has served at least twelve years in
prison waiting for the State to give him a fair trial would violate
the Eighth Amendment. The appellant's claim is without merit.
Not only has the delay effectuated an ultimately
sound conviction and punishment proceeding, the appellant fails to
produce any evidence that the State abused the system, despite the
retrials. We therefore look to the Supreme Court to determine
whether the length of the delay per se has violated his Eighth
Amendment rights. The Supreme Court has interpreted the cruel and
unusual clause to prohibit punishment that offends the “evolving
standards of decency that mark the progress of a maturing society.”
Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958)
(plurality opinion). In determining what standards have “evolved,”
the Supreme Court has looked to the standards of “modern American
society as a whole.” Stanford v. Kentucky, 492 U.S. 361, 369, 109
S.Ct. 2969, 106 L.Ed.2d 306 (1989).
The present standards of decency do not deem
cruel and unusual the delay occasioned while a condemned prisoner
pursues direct appeals and collateral relief. The United States
Courts of Appeals have determined that a delay in excess of thirteen
years between sentencing and execution does not constitute cruel and
unusual punishment. E.g. White v. Johnson, 79 F.3d 432, 439-40 (5th
Cir.1996) (rejecting claim that to execute death-sentenced inmate
after pursuing appeals and collateral relief for seventeen years is
cruel and unusual); McKenzie v. Day, 57 F.3d 1493, 1494 (9th
Cir.1995) (rejecting claim that to execute death-sentenced inmate
after pursuing appeals and collateral relief for approximately two
decades is cruel and unusual).
State courts have also rejected this issue. E.g.
Bell v. State, 938 S.W.2d 35, 53 (Tex.Crim.App.1996) (rejecting
claim that to execute death-sentenced inmate after nearly twenty-years
after pursuing appeals is cruel and unusual); Hitchcock v. State,
578 So.2d 685, 693 (Fla.1990) (rejecting claim that to execute death-sentenced
petitioner after pursuing appeals and collateral relief for twelve
years is cruel and unusual), rev'd on other grounds, 505 U.S. 1215,
112 S.Ct. 3020, 120 L.Ed.2d 892 (1992); People v. Chessman, 52
Cal.2d 467, 341 P.2d 679, 699-700 (1959) (rejecting claim that to
execute death-sentenced petitioner after pursuing appeals and
collateral relief for more than eleven years is cruel and unusual),
overruled on other grounds, People v. Morse, 60 Cal.2d 631, 36
Cal.Rptr. 201, 388 P.2d 33 (1964). The approximate thirteen years
the appellant has spent challenging his conviction and sentence is
not a fortiori unconstitutionally cruel and unusual. We overrule
point of error four.
Finding no reversible error, we affirm the
judgment of the trial court.