Opinion
NO. 01-15-01055-CR
03-09-2017
JOHN RICHARD SMITH, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court Harris County, Texas
Trial Court Case No. 1395401
MEMORANDUM OPINION
John Richard Smith was charged with the murder of Christine Cousins. A jury convicted him, and the trial court sentenced him to 58 years' confinement in the Texas Department of Criminal Justice. On appeal, Smith contends that (1) his conviction is void because the record does not demonstrate that the visiting judge who presided over his trial took the required oath of office; and (2) the trial court abused its discretion by admitting inadmissible hearsay. We affirm.
Background
In November 2015, retired District Judge Terry Flenniken sat in the 263rd District Court in Harris County, by special assignment from the presiding regional administrative judge, Judge Olen Underwood. Neither party objected to Judge Flenniken's assignment, and Judge Flenniken presided over Smith's trial.
At trial, Seketha Jacobs, Christine Cousins' roommate, testified that Smith knocked on their door one day in July 2013. Cousins agreed to see Smith in her room. Jacobs overhead Cousins and Smith talking for less than five minutes before a single gunshot rang out. Jacobs screamed. Smith came out of Cousins' room and shot Jacobs in the chest. Jacobs was pregnant.
Cousins died, but Jacobs survived her wounds. Smith claimed that Cousins was shot when the gun accidentally discharged, and that he shot Jacobs in self-defense.
During its case, the State sought to have admitted the testimony of Cousin's friend, Rosalind Wilson, that Cousins had told her that Cousins had planned to end her relationship with Smith because her prior boyfriend was being released from prison and that Smith had been "tripping." The State proffered the testimony as a present-sense impression and a then-existing mental, emotional, and physical condition of the complainant. See TEX. R. EVID. 803(1), 803(3). The trial court admitted the testimony.
Discussion
I. Visiting Judge Qualifications
A. Standard of review and applicable law
We indulge a presumption in favor of the regularity of the proceedings in the trial court, absent any evidence of impropriety. Light v. State, 15 S.W.3d 104, 107 (Tex. Crim. App. 2000); Murphy v. State, 95 S.W.3d 317, 320 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd) (citing McCloud v. State, 527 S.W.2d 885, 887 (Tex. Crim. App. 1975)). We have consistently upheld this presumption "absent a showing to the contrary." See Murphy, 95 S.W.3d at 320; Dusenberry v. State, 915 S.W.2d 947, 949 (Tex. App.—Houston [1st Dist.] 1996, pet. ref'd). The defendant bears the burden to overcome the presumption with contrary evidence. See Murphy, 95 S.W.3d at 320; Dusenberry, 915 S.W.2d at 949. Because the presumption applies, a challenge to a visiting trial court judge for an alleged failure to take the constitutionally required oath requires a prima facie showing that the trial judge did not take the oath. Murphy, 95 S.W.3d at 320. The mere absence of proof in the record that a visiting judge took the judicial oath of office does not overcome the presumption. Id.
B. Analysis
Smith argues that his conviction is void because the record fails to demonstrate that the visiting judge took the constitutionally required oath of office. Because Smith has not proffered affirmative support from the record demonstrating that the judge did not take the oath, we hold that he has failed to overcome the presumption of regularity. See Murphy, 95 S.W.3d at 320 (holding that mere absence of proof in the record that the visiting judge took the oath of office does not overcome the presumption of regularity).
Smith relies on Herrod v. State for the proposition that the presumption of regularity does not apply to challenges to the lack of a visiting judge's oath of office. See 650 S.W.2d 814 (Tex. Crim. App. 1983). Herrod, however, is distinguishable. In that case, the Court of Criminal Appeals observed that, at the time, retired district judges had to satisfy special statutory requirements to sit as judges in the criminal county courts. Id. at 817. The Herrod Court noted, however, that the analysis is different for retired district judges sitting on a district court. Id. In those circumstances, "an eligible retired district judge who has duly filed his election to continue in a judicial capacity is still a district judge." Id. ("It has been held that where an eligible retired district judge has duly filed his election to continue in a judicial capacity no formal order need be entered by the presiding judge of the administrative district or by the duly elected judge of said district court for him (retired judge) to exchange benches and preside over a trial in a district court."). Because the trial judge in this case was a retired district judge sitting on a district court, this different analysis recognized in Herrod applies here, and thus its holding does not.
II. Admission of Evidence
A. Standard of review and applicable law
We review a trial court's decision to admit or exclude evidence for abuse of discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003); Roberts v. State, 29 S.W.3d 596, 600 (Tex. App.—Houston [1st Dist.] 2000, pet. ref'd). A reviewing court should not reverse unless the record shows a clear abuse of discretion. Zuliani, 97 S.W.3d at 595; Roberts, 29 S.W.3d at 600. An abuse of discretion occurs only when the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Zuliani, 97 S.W.3d at 595; Roberts, 29 S.W.3d at 600.
Smith challenges the admission of Wilson's testimony about what Cousins told her as hearsay. "'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." TEX. R. EVID. 801(d). Hearsay testimony is generally inadmissible at trial. TEX. R. EVID. 802. Rule 803(3) provides an exception to the hearsay rule for "[a] statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will." TEX. R. EVID. 803(3). A victim's statement that she intended to leave the defendant is admissible under the hearsay exception in Rule 803(3). See Martinez v. State, 186 S.W.3d 59, 67 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd) (where trial court admitted testimony of the victim's neighbor concerning victim's statement that she was thinking of leaving defendant). This court held that the neighbor's testimony was admissible under Rule 803(3) to show future intent. Id.
B. Analysis
Smith complains that the trial court abused its discretion in admitting Wilson's testimony that Cousins told her that Smith was "tripping" and she intended to leave him. Wilson's testimony is similar to that admitted in Martinez. Following Martinez, we hold that the trial court acted within its discretion in admitting Wilson's testimony under the state of mind exception to the hearsay rule. See TEX. R. EVID. 803(3); Martinez, 186 S.W.3d at 67.
Smith cites Garcia v. State for the proposition that the state of mind exception is limited to emotional responses. 246 S.W.3d 121, 132 (Tex. App.—San Antonio 2007, pet. ref'd) (holding that "Texas courts have held that the type of statement contemplated by this rule includes a statement that on its face expresses or exemplifies the declarant's state of mind—such as fear, hate, love, and pain."). Garcia, however, expressly noted that Rule 803(3) extends to remarks demonstrating the declarant's intent or plan. See id.; TEX. R. EVID. 803(3); Martinez, 186 S.W.3d at 67.
Conclusion
We affirm the judgment of the trial court.
Jane Bland
Justice Panel consists of Chief Justice Radack and Justices Jennings and Bland. Do not publish. TEX. R. APP. P. 47.2(b).