Smith v. State

Full title: ANTOINE LAMONT SMITH, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Aug 18, 2010

No. 05-08-01115-CR (Tex. App. Aug. 18, 2010)

Opinion

No. 05-08-01115-CR

Opinion Filed August 18, 2010. DO NOT PUBLISH. Tex. R. App. P. 47

On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F05-55554-K.

Before Justices RICHTER, LANG-MIERS, and MYERS.

OPINION

Opinion By Justice LANG-MIERS.

A jury convicted appellant Antoine Lamont Smith of first-degree murder and the trial court assessed punishment at life in prison. In three issues appellant argues that he is entitled to a new trial because the evidence is factually insufficient to support his conviction, he received ineffective assistance of counsel during the punishment phase, and his sentence constitutes cruel and unusual punishment. We resolve appellant's issues against him and affirm the trial court's judgment.

Background

In the early morning hours of August 2, 2005, the victim, 19-year-old Miranda Wright, was shot in the head while driving her car. The events leading up to Wright's murder began late during the night of August 1, 2005, when Wright was at a gas station with her friends, including Brandon Skelton. At the gas station, Skelton got in a fight with Jeramie Dotsy and gunfire broke out. A few hours after the shootout at the gas station, Wright was driving alone in her car following her friends, including Skelton, who were in another car driving around looking for Dotsy. At the same time, Dotsy was driving around with his two friends, appellant and Devoia Jackson. Dotsy, Jackson, and appellant were in appellant's car and Dotsy was driving. When Dotsy spotted Wright's car, appellant shot at the car, hitting and killing Wright. The State's evidence at appellant's trial included the testimony of three eyewitnesses: (1) Destaney Dunn-Skelton's girlfriend, who was in the car with Skelton when Wright was killed; (2) Derisha Tyler-Dunn's friend, who was also in the car with Skelton when Wright was killed; and (3) Jackson-Dotsy's close friend, who was in the car with Dotsy and appellant when Wright was killed. On the night Wright was killed, Dunn had taken Xanax, hydrocodone, and promethazine; Tyler had drunk Crown Royal and taken Xanax; and Jackson was on morphine because he had been shot recently in an unrelated incident. Dunn gave a statement to police. She told police she saw Dotsy leaning out of the driver-seat window shooting, but she did not see who shot Wright. She did not tell police Skelton had a gun and was looking for Dotsy. At trial, she testified that she did not see who shot Wright. In Tyler's statement to police, she said Dotsy was driving appellant's car. At trial, Tyler testified that she could not see who was driving the car and that she saw Dotsy shooting out the back window behind the driver's seat. Jackson testified that he was with Dotsy at the gas station where the first shootout took place. When the shooting stopped, they left the gas station and Dotsy drove to his mechanic's house to see if he could get his car's broken windows replaced, but the mechanic was not there. Dotsy called appellant and asked him to pick them up at the mechanic's house. Appellant arrived in his car and the group left in it and returned to the gas station where the earlier shootout had occurred. Dotsy was driving, Jackson was in the front passenger seat, and appellant was in the back seat behind Dotsy. Appellant had a gun in the car. They drove to a friend's house where they stayed a while. As they left the friend's house to go home, Dotsy saw Wright's car, pointed, and said "that's their car right there from the [gas station]." Appellant could not roll down his window because the child lock was engaged. Dotsy used the driver's controls to roll down appellant's window and appellant started shooting at Wright's car. Jackson testified that he was clear about what he saw, but when he was asked what he was thinking at the time of the shooting, he responded:

I'm just-I'm really kind of like not really conscious because I'm on, I'm under intoxication. I was on morphine pills, you know, and I really don't know, you know-I really don't-I can't really just say because I was under, you know, under the influence, you know, of medication.

At the scene of Wright's murder, police recovered six or seven Winchester 9-millimeter Luger cartridges, two FC9-millimeter fired cartridges, and three bullet fragments. Later on August 2 police located appellant's car at an apartment complex. They watched appellant leave an apartment, approach the car, and drive away. They pulled appellant over and saw a shell casing on the outside of the car lodged between the rear window and the trunk lid. They found a 9-millimeter shell casing in the back of appellant's car near the rear window, and separately bagged and tagged it for forensic analysis. A short time later, they searched the apartment that appellant had been seen leaving. Among the evidence seized during that search were a loaded Glock 9-millimeter pistol and a full box of Winchester 9-millimeter Luger cartridges. Police did a DNA swab on the trigger guard and trigger of the 9-millimeter gun found at the apartment. They were not able to obtain fingerprints from the gun. Officer Scott Sayers also collected DNA from appellant and Dotsy using buccal swabs. Officer Sayers was new to the homicide unit at the time, so a senior detective supervised him taking the swabs. Officer Sayers testified in detail about the protocol police normally use for obtaining swabs and that he followed the correct procedures when taking the samples from appellant. According to a report from SWIFS, the laboratory that conducted the DNA testing in this case, the samples from appellant and Dotsy were submitted to SWIFS in June 2006, about 10 months after Wright was murdered. Forensic scientists at SWIFS performed tests on four pieces of evidence that were submitted to SWIFS in August 2005 by officers who did not testify: a black gun and magazine, and a silver gun and magazine. The black gun and magazine contained a mixture of DNA from at least two contributors. The DNA from the major contributor matched appellant's DNA profile. The forensic biologist testified that the DNA match to appellant was very strong-1 in 1.41 trillion. She said that the population of the world is six billion, and she would "expect to go through 235 worlds in order to see this same DNA profile again." The other DNA on the gun did not correspond to the DNA profiles from Wright or Dotsy, but Wright and Dotsy could not be ruled out as minor contributors of the DNA found on the magazine. There was a 1 in 11 chance that Wright touched the magazine, and a 1 in 5 chance that Dotsy touched the magazine. The State's theory at trial was that appellant shot Wright. The trial court did not instruct the jury on the law of parties. Appellant did not testify during his trial, but his defensive theory, developed during cross-examination and closing argument, appeared to be that Skelton was the intended target and that Dotsy shot Wright.

First Issue

In his first point of error, appellant contends that the evidence is factually insufficient to support his conviction. Specifically, he challenges the sufficiency of the evidence to prove his identity as the person who shot Wright.

Standard of Review

When reviewing a challenge to the factual sufficiency of the evidence, we consider all of the evidence in a neutral light. Steadman v. State, 280 S.W.3d 242, 247 (Tex. Crim. App. 2009). Evidence is factually insufficient if "the evidence supporting the verdict is so weak or so against the great weight and preponderance of the evidence as to render the verdict manifestly unjust." Id. In conducting our review, "we are required to give great deference to the jury's assessment of the credibility of the witnesses, the weight of the testimony, and the resolution of any conflicts in the testimony." Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009). We are not free to override the verdict simply because we disagree with it. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009). Instead, "there must be an objective basis in the record in order to say that the great weight and preponderance of the evidence contradicts the jury's verdict." Lancon v. State, 253 S.W.3d 699, 706 (Tex. Crim. App. 2008).

Applicable Law

As applicable to this case, a person commits murder if he (1) intentionally or knowingly causes the death of an individual; or (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1)-(2) (Vernon 2003). The offense is a first-degree felony for which the punishment range is life or any term not more than 99 years or less than 5 years and a fine not to exceed $10,000. Id. § 12.32 (Vernon Supp. 2009). Because appellant had a prior felony conviction, the minimum sentence was increased from 5 years to 15 years. Id. § 12.42(c)(1) (Vernon Supp. 2009).

Analysis

Appellant contends that the evidence is factually insufficient to prove he was the shooter. First, appellant argues that (1) Tyler's and Dunn's testimony established that Dotsy shot Wright, not appellant; (2) Dotsy was motivated to kill Skelton in retaliation for the shootout at the gas station; and (3) Skelton had other enemies besides Dotsy due to Skelton's alleged involvement in other shootings. Second, appellant argues that Jackson was not a reliable witness because (1) he admitted he was on morphine that night and that he was "`not really conscious' at the time of the shooting and passed out shortly thereafter"; (2) he was shown leniency by the State; and (3) he showed allegiance to Dotsy. Third, appellant argues that there were a number of "improbabilities and contradictions in Jackson's testimony," namely: (1) Jackson testified that "Dotsy thought that they could get Dotsy's car repaired in the middle of the night"; (2) Jackson testified that Dotsy abandoned his guns before appellant picked Jackson and Dotsy up, even though Dunn saw Dotsy shooting from appellant's car; (3) Jackson testified that appellant was riding in the back seat of his own car, even though Tyler testified that Dotsy was in the back seat; and (4) Jackson testified that Wright pulled up next to appellant's car, while Dunn and Tyler testified that Wright's car was in between appellant's car and Dunn's car. And fourth, appellant argues that "the scientific testimony ultimately reinforces the conclusion that the evidence is factually insufficient" because (1) the officer who collected the DNA samples from Dotsy and appellant "lacked experience" at the time the samples were taken and only testified about the procedures for collecting DNA samples "in abstract terms"; (2) the DNA results show that appellant was not the only person who touched the gun that killed Wright; and (3) the firearms analysis did not provide a link to appellant. Most of the evidence that appellant relies on to argue that the evidence is factually insufficient involves credibility of the witnesses and conflicting testimony. Even though the witnesses testified that they had been using drugs and alcohol, for the most part each of their stories appeared to corroborate the other witnesses' testimony about the events of that night. Jackson was the only person who testified without equivocation that he saw who shot Wright. Dunn and Skelton were in front of Wright's car, but Jackson was riding in the car with appellant. He said he saw appellant shoot at Wright's vehicle. Appellant contends that Jackson's eyewitness testimony was not credible because he had a motive to lie and he was on morphine when the shooting occurred. However, the jury was in the best position to judge the motives and biases of the witnesses. Lancon, 253 S.W.3d at 705 (stating jury in best position to judge credibility of witness because it hears testimony, as opposed to appellate court which relies on cold record). And the jury is free to accept or reject any or all of the evidence presented by either side. Id. at 707. In addition, the police found the murder weapon in the same apartment appellant had occupied, and appellant's DNA matched the DNA found on the trigger of the murder weapon and magazine. After a neutral review of the evidence, we conclude that the conflicting testimony does not undermine the logical force or probative value of the inculpatory evidence and that the evidence is factually sufficient to support the conviction. See Gardner, 306 S.W.3d at 285-86; Lancon, 253 S.W.3d at 705-07.

Second Issue

In his second issue appellant argues that his trial counsel rendered ineffective assistance of counsel during the punishment phase of his trial because his counsel "failed to alert the trial court that the sentence for [a]ppellant's prior felony was less severe than believed by the trial court."

Background

Defendant elected to have the trial court assess punishment in this case. During the punishment phase of appellant's trial, appellant's mother testified that appellant was convicted of aggravated robbery as a juvenile and sentenced to 25 years in prison. The State introduced without objection the judgment from that prior case showing that appellant was sentenced to 25 years in prison. Appellant's stepfather testified that appellant was a good kid and that the juvenile case was "shocking." During his testimony, the trial court asked the stepfather "looking back . . . where did [appellant] start going wrong?" The stepfather commented that it may have been the void in appellant's life from not having his biological father involved with him, and the court commented:

We are talking about guns now and highjacking people. This case that he did a sentence on, that's a pretty serious case to get right off the bat to catch a 35 year sentence like that, don't you think? (emphasis added).

Appellant argues that his counsel was ineffective when he failed to object to the court's misstatement about the amount of time appellant received in the juvenile case.

Applicable Law

To prove ineffective assistance of counsel appellant must show by a preponderance of the evidence that his counsel's performance fell below an objective standard of reasonableness and a reasonable probability exists that, but for counsel's errors, the result would have been different. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668 (1984) and Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999)). An ineffective assistance claim must be "firmly founded in the record," and the record must affirmatively demonstrate that the claim has merit. Goodspeed, 187 S.W.3d at 392 (quoting Thompson, 9 S.W.3d at 812). In the absence of a record of counsel's reasoning or strategy, we must apply the strong presumption that counsel's performance was part of trial strategy, and we typically will not second guess a matter of trial strategy. See id.; Young v. State, 991 S.W.2d 835, 837 (Tex. Crim. App. 1999). When trial counsel has not had an opportunity to explain his actions, we should not find his performance deficient unless it was "so outrageous that no competent attorney would have engaged in it." Goodspeed, 187 S.W.3d at 392 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

Analysis

Appellant bears the burden of rebutting the presumption of reasonable assistance by presenting evidence explaining trial counsel's conduct. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant filed a motion for new trial, but he did not raise ineffective assistance in the motion and did not have a hearing on the motion. As a result, we have no record showing that counsel was given an opportunity to explain his performance, and appellant has not rebutted the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App .2003). The Texas Court of Criminal Appeals has made clear that in most cases, a silent record providing no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance, and an application for writ of habeas corpus is the more appropriate vehicle to raise such claims. Id. at 110. Without a record, we cannot conclude that appellant has met his burden under the first prong of Strickland. Whatever counsel's reasons for the alleged improper acts or omissions, without a record, we must presume the decisions were made as part of sound trial strategy. To support his second issue, appellant primarily relies on Milburn v. State, 15 S.W.3d 267 (Tex. App.-Houston [14th Dist.] pet. ref'd). In Milburn, our sister court concluded that the defendant's trial counsel was ineffective for failing to investigate and present mitigating evidence during the punishment phase of the defendant's trial. Id. at 269 (citing prior opinion in Milburn v. State, 973 S.W.2d 337, 343 (Tex. App.-Houston [14th Dist.] 1998), vacated and remanded, 3 S.W.3d 918 (Tex. Crim. App. 1999)). Milburn, however, is distinguishable from the instant case in several respects. First, unlike appellant, the defendant in Milburn filed a motion for new trial alleging ineffective assistance of counsel. See Milburn, 973 S.W.2d at 339. Second, unlike in this case, the parties in Milburn stipulated that twenty of the appellant's friends and relatives were available and would have testified in his favor, yet were not contacted by the appellant's defense team. Milburn, 15 S.W.3d at 269. Third, Milburn's trial counsel testified at the hearing on the motion for new trial and admitted that he had neither investigated nor evaluated available punishment evidence. Id. at 270. In this case, we have no such admission from appellant's trial counsel. We conclude that appellant has not rebutted the presumption of reasonable assistance during the punishment phase. We resolve appellant's second issue against him.

Third Issue

In his third issue appellant argues that the trial court's mistaken understanding that the jury in the juvenile case assessed a 35-year sentence instead of a 25-year sentence impacted the trial court's decision to assess life and that a life sentence is cruel and unusual punishment prohibited by the Eighth Amendment to the U.S. Constitution. The State responds that appellant failed to preserve his complaint for appellate review and, alternatively, the record does not show that the trial court abused its discretion in imposing the sentence. To preserve this issue for review, appellant had to object at trial on the same grounds that he raises on appeal and obtain a ruling. See Tex. R. App. P. 33.1(a)(1); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (appellant did not preserve complaint that death sentence was cruel and unusual punishment because appellant did not object at trial on this basis); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet.). But appellant did not complain about the sentence either at the time it was imposed or in his motion for new trial. As a result, appellant did not preserve this issue for our review. Curry, 910 S.W.2d at 497; Castaneda, 135 S.W.3d at 723. Even if appellant had preserved this issue, it is without merit because punishment assessed within the statutory range is not unconstitutionally cruel and unusual punishment. Castaneda, 135 S.W.3d at 723. We resolve appellant's third issue against him.

Conclusion

We resolve appellant's three issues against him and affirm the trial court's judgment.