Opinion
No. 05-10-01555-CR
03-23-2012
ROSHAUN NICHOLAS SMITH, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM and Opinion Filed March 23, 2012
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F09-51111-V
OPINION
Before Justices Bridges, O'Neill, and Fillmore
Opinion By Justice Fillmore
A jury convicted Roshaun Nicholas Smith of murder and assessed punishment of forty-five years' imprisonment and a $10,000 fine. In three issues, Smith argues the evidence is insufficient to support the verdict, the trial court erroneously submitted a charge that allowed the jury to convict Smith without unanimously agreeing as to the manner and means of committing the crime, and the trial court erred by denying Smith's motion for mistrial after the State elicited testimony that violated a motion in limine. We affirm the trial court's judgment. Background
Brian Rhodes testified that, on January 31, 2009, Charles Harrison came to his house, and the two men smoked marijuana. Cordell Dallas was at Rhodes's house, visiting Rhodes's niece, Tonisha Davis. Harrison asked if Dallas could take them somewhere. Around 9:30 p.m., the three men left with Dallas driving, Rhodes in the front passenger seat, and Harrison in the back seat.
Dallas drove to Mesa Circle just a few blocks from Rhodes's house and began to reduce speed. According to Rhodes, Harrison said he owed money to someone in the Arlington Park area and told Dallas not to stop the car. Dallas, however, parked the car on Wayside Drive and got out of the car. Several people, including Rolando Bailey and Smith, came out of the house across the street.
Rhodes testified that Smith reached into the back seat on the driver's side and "smacked" Harrison in the face with his hand. Harrison gave Smith twenty-two dollars and said, "Man, I'm going to pay you, I'm going to pay you." Harrison got out of the car on the passenger side and walked at a fast pace across the yard. According to Rhodes, Dallas then hit Harrison with a tree branch two or three times while Harrison was on the ground. Smith was "standing above" Harrison, "cutting him off." Rhodes did not see Smith assault Harrison. Rhodes was going to check on Harrison when he was hit in the side of the head and knocked out. Rhodes admitted he had been convicted of forgery and burglary and had been sentenced to the penitentiary three times.
The majority of the witnesses knew Smith only as "Cali" and referred to him as "Cali" throughout the trial. It is undisputed that Smith was known as "Cali" and was the individual involved in the altercation. For clarity, we will refer to appellant as "Smith," rather than "Cali."
Bailey testified he was at his house with Smith and other people when Dallas drove up and asked for Smith. Dallas then parked on a side street, and Smith went "over there." According to Bailey, "Trish" came over and said "they" were fighting and asked Bailey to "go get" Dallas. Bailey went to break up the fight and to get Dallas. Bailey testified that Smith was at the passenger side's back door of a car, and Harrison was in the back seat. Smith was hitting Harrison and trying to pull him out of the car. Dallas was attempting to get Rhodes out of the car.
While Bailey was separating Dallas and Rhodes, he saw Harrison fall out of the car and start running across the yard. Smith chased Harrison, and Dallas chased the two men. Bailey then heard the sound of three "hits." When he turned, he saw Smith holding Harrison in a "full nelson" and Dallas with a "nice-sized" stick in his hand. Bailey ran over and pulled Dallas away from Harrison. Bailey then heard people yelling to get Smith. Bailey turned and saw Harrison unconscious on the ground and Smith punching, kicking, and stomping Harrison. Bailey pulled Smith off Harrison. Bailey testified that Rhodes and Dallas then got "into it again." Dallas hit Rhodes twice in the face and knocked him out.
Davis testified that, in January 2009, she was living with Rhodes, who was her uncle, and her grandmother. Dallas, with whom Davis had an on-and-off relationship, came to her house on January 31, 2009. According to Davis, Rhodes and Harrison wanted to get some drugs, and Dallas agreed to take them "someplace" to get some drugs for them. A friend of Davis's later called her about Dallas "getting into trouble." Davis went to Mesa Circle and saw Smith "stomping" Rhodes in the head. According to Davis, Rhodes was unconscious, and Smith was kicking him in the head. Davis told Smith that Rhodes was her uncle. Smith responded that he did not know Rhodes was Davis's uncle, but the "other dude" owed Smith some money. Smith told Davis to "pick [Rhodes] up before I knock you out too." Someone with a truck helped Davis take Rhodes home.
Davis testified that later that night, Smith called her and said he did not hit her uncle and that Dallas knocked out her uncle. Smith also said he did not know Rhodes was Davis's uncle, but Harrison owed Smith some money. Davis took Smith's statement to mean that Smith was"jumping on him because he owed him some money." Dallas later told Davis that Rhodes was "trying to go in his pocket," so he knocked him out. Davis admitted she had been to prison for six counts of dealing drugs and was on parole until 2013. Davis had also been convicted of prostitution, criminal mischief, and resisting arrest.
Patricia Bledsoe testified that she goes by "Trish" and is Dallas's cousin. On January 31, 2009, Bledsoe was at Bailey's house. Dallas came to the house and told Smith that somebody wanted to talk to him. Both Dallas and Smith went outside. Bledsoe heard sounds of people arguing and went outside. She saw Smith trying to pull Harrison out of the back seat of a car. Harrison was struggling not to get out of the car, and Smith was kicking Harrison inside the car.
According to Bledsoe, Harrison got out of the car and started running. Dallas caught Harrison and was fighting him with fists. Dallas then kicked Harrison and got a long plank, similar to a plank from a door. Bledsoe heard Dallas hitting Harrison with the plank. Meanwhile, Smith was fighting Rhodes. Smith came over, and both Dallas and Smith kicked Harrison. Then, Smith started stomping on Harrison, and Dallas continued hitting Harrison with the plank. Harrison was "balled up" and not fighting back. Bledsoe admitted she was addicted to crack cocaine and had been in the Texas Department of Corrections on a "rehab thing." Bledsoe denied she used cocaine on January 31, 2009.
Officer Steve Hough testified he is assigned to the Crime Scene Section of the Dallas Police Department. He investigated the scene of the assault on Harrison. Hough did not retrieve a stick that was at the scene, and admitted he should have taken the stick. The stick was retrieved later.
Detective Michael Mendez testified he was assigned to the case after Harrison died. Both Rhodes and Davis identified Dallas and Smith as the perpetrators of the assaults on Harrison and Rhodes. Mendez interviewed Dallas after his arrest. Based on that interview, Mendez determined a tree branch or stick was used in the offense. He returned to the crime scene and found a stick two to three feet long that was broken into four pieces and appeared to have blood on it.
Mendez also interviewed Smith following his arrest. Smith said he was at Bailey's house when somebody came to the door and said Dallas wanted him outside. Smith went outside and talked to Dallas about plans for that evening. Rhodes came into the yard off the side street and asked Smith if he had any marijuana for sale. Smith indicated he only had enough marijuana for his personal use and did not have any for sale. Rhodes continued to ask Smith to sell him some marijuana and then grabbed Smith's pocket. Smith pushed Rhodes's hand away, and Rhodes slapped Smith's hand. The two "got into a little altercation." Dallas walked out of the yard, and Smith heard him saying something like, "you're wasting my time."
After further questioning, Smith revised his statement to admit his altercation with Rhodes involved pushing and "nudging." Smith then heard Dallas saying, "get out of my car" and saw Dallas pull Harrison out of the car and hit Harrison. Dallas "started going crazy" and hit Harrison with a piece of tree approximately two or two-and-a-half feet long. Smith said he also saw Dallas hit Rhodes. Smith admitted Davis might have seen him "doing things" to Rhodes and that he tried to explain to Davis why he "got into it" with her uncle.
After more questioning, Smith admitted he punched Harrison when Dallas was trying to get Harrison out of his car. He denied touching Harrison after Dallas began hitting him. Smith stated he hit Harrison in the face only one time while Harrison was in the car.
Mendez testified he believed Smith beat Harrison to death over some drugs or "drug money." Mendez does not believe Smith hit Harrison with the tree branch. He admitted the pieces of the tree branch were not in one place when Hough visited the crime scene. The pieces of the branch were together when Mendez returned to the scene after interviewing Dallas. In Mendez's opinion, somebody manipulated the crime scene by moving the pieces of the tree branch together.
Courtney Ferreira, a forensic biologist and DNA analyst with the Southwestern Institute of Forensic Sciences, testified Harrison's blood was on the tree branch. She did not find any other DNA on the branch.
Dr. Reade Quinton, a medical examiner for Dallas County, testified Harrison died from blunt force trauma to the head. Harrison had a number of injuries to his head that could have caused his death, including two lacerations on his forehead that went the thickness of the scalp to Harrison's skull and a skull fracture running from one ear to the other. According to Quinton, the two lacerations on Harrison's forehead were caused by a hard object, rather than a hand. Although these injuries could have caused the skull fracture, it was more likely that a stomp or kick to the side of Harrison's head caused the fracture. The blunt force trauma to the head caused a subdural hematoma, and Harrison died from this trauma. Quinton testified significant force was necessary to cause Harrison's injuries. However, because a number of Harrison's injuries could have led to his death, Quinton could not say which injury caused Harrison's death. The toxicology screen indicated Harrison had used cocaine, but did not show any marijuana use. Sufficiency of the Evidence
In his first issue, Smith contends the evidence is insufficient to support the conviction because (1) there was no evidence Smith intended to cause Harrison's death, (2) the witnesses were not credible due to their drug use and criminal convictions and their testimony was inconsistent, (3) Smith's statement did not establish he intended to cause Harrison's death or intended to aid, assist, encourage, or promote Dallas in causing Harrison's death, (4) Rhodes testified Harrison used marijuana while the toxicology screen showed no marijuana use, (5) Quinton was unable to identify which of Harrison's injuries caused his death and the hematoma in the front part of Harrison's brain is consistent with a tree branch strike causing death, and (6) Hough's failure to secure the crime scene allowed for the contamination of evidence and likely prevented potentially exculpatory evidence from being secured.
Standard of Review
We review the sufficiency of the evidence under the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011), cert. denied, (U.S. Mar. 19, 2012) (No. 11-944). We examine all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Adames, 353 S.W.3d at 860. This standard recognizes "the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319; see also Adames, 353 S.W.3d at 860. The jury, as the fact finder, is entitled to judge the credibility of the witnesses, and can choose to believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We defer to the jury's determinations of credibility, and may not substitute our judgment for that of the fact finder. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (in conducting legal sufficiency analysis, appellate court "may not re-weigh the evidence and substitute our judgment for that of the jury").
Analysis
As charged in this case, to prove Smith committed murder, the State was required to establish beyond a reasonable doubt that Smith, either as a principal or a party to the offense, intentionally or knowingly caused Harrison's death or intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused Harrison's death. See Tex. Penal Code Ann. § 19.02(b)(1), (2) (West 2011). We turn first to Smith's assertions that there was insufficient evidence to show he intended to cause Smith's death or acted with the intent to aid, assist, encourage, or promote Dallas in causing Harrison's death. Intent is most often proven through the circumstantial evidence surrounding the crime, and the jury may infer the requisite intent from the defendant's conduct, including his acts and words. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001); Sholars v. State, 312 S.W.3d 694, 703 (Tex. App.-Houston [1st Dist.] 2009, pet. ref'd), cert. denied, 131 S. Ct. 156 (2010).
Rhodes testified that Harrison did not want to stop in Arlington Park because he owed someone in the area money. Rhodes saw Smith trying to pull Harrison out of the car. Harrison gave Smith twenty-two dollars and promised to pay him more money. Bailey and Bledsoe also saw Smith attempting to pull Harrison out of Dallas's car. Smith admitted he hit Harrison one time while Harrison was in the car.
After Harrison attempted to run away, Smith chased him. Bailey heard the sound of someone being hit and turned to see Dallas with a stick. Bledsoe testified she heard Dallas hitting Harrison with a plank. According to Bailey, Smith was holding Harrison in a "full nelson" at the time. Rhodes testified that Harrison was on the ground when Dallas was hitting him with the stick, but that Smith was "cutting off" Harrison. Bledsoe and Bailey testified they saw Smith kicking and stomping Harrison. Davis testified that Smith told her that Harrison owed him some money. Davis understood Smith's statement to mean he was "jumping on" Harrison because he owed him some money. Dr. Quinton testified Harrison's injuries were consistent with being hit by something hard and being kicked or stomped in the head.
There was evidence that Smith attacked Harrison because Harrison owed him money, held or "cut off" Harrison while Dallas hit him with a stick, and kicked and stomped Harrison while he was on the ground. We conclude there is sufficient evidence to establish that, either as a principal or a party, Smith intended to kill Harrison or intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused Harrison's death.
The remainder of Smith's complaints under this issue relate to inconsistencies in the evidence and the credibility of the witnesses. However, the jury heard all the testimony. It was the role of the jury to judge the credibility of the testimony, and we must defer to that determination. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899. Reviewing all the evidence in the light most favorable to the jury's verdict, we conclude a rational jury could have found Smith guilty of all of the elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Adames, 353 S.W.3d at 860. We resolve Smith's first issue against him.
Unanimous Verdict
In his second issue, Smith generally argues his right to a unanimous verdict was violated because the charge did not require the jury to unanimously agree on the manner and means by which Smith committed the crime. The indictment alleged four manner and means by which Smith committed Harrison's murder: Smith caused Harrison's death by hitting or striking Harrison with his hands or his feet; Smith, as a party, caused Harrison's death by either Smith or Dallas striking Harrison with their hands, their feet, or a branch; and Smith, as a principal or a party, intended to cause serious bodily injury to Harrison and committed an act clearly dangerous to human life by striking Harrison with hands, feet, or a branch, and thereby caused Harrison's death.
Standard of Review
Our first duty in analyzing a jury-charge issue is to decide whether error exists. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (citing Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005)). If error exists, we must determine whether the error caused sufficient harm to warrant reversal. Ngo, 175 S.W.3d at 743-44. When, as in this case, the error was not objected to, the error must be "fundamental" and requires reversal "only if it was so egregious and created such harm that the defendant 'has not had a fair and impartial trial.'" Barrios, 283 S.W.3d at 350 (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g)).
Analysis
Jury unanimity is required in all felony cases in Texas. Tex. Const. art. V, § 13; Tex. Code Crim. Proc. Ann. art. 36.29(a) (West Supp. 2011); Leza v. State, 351 S.W.3d 344, 356 (Tex. Crim. App. 2011). This requires the jury to "agree upon a single and discrete incident that would constitute the commission of the offense alleged." Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011) (quoting Stuhler v. State, 218 S.W.3d 706, 717 (Tex. Crim. App. 2007)). However, although the jury must unanimously agree about the occurrence of a single criminal offense, it is not required to be unanimous about the specific manner and means of how that offense was committed. Young v. State, 341 S.W.3d 417, 422 (Tex. Crim. App. 2011); see also Cosio, 353 S.W.3d at 771 (jury must reach unanimous verdict "about the specific crime that the defendant committed"). The phrase "manner or means" describes how the defendant committed the specific criminal act. Ngo, 175 S.W.3d at 745. Jury unanimity is not violated when the jury is disjunctively instructed on alternative means or theories of committing the same offense. Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App. 2004); see also Jefferson v. State, 189 S.W.3d 305, 313 (Tex. Crim. App. 2006) (due process does not require jury unanimity on a particular "act or omission" submitted as alternate means of committing conduct element of offense). Further, the jury is not required to unanimously determine whether the defendant acted as a principal or as a party. Leza, 351 S.W.3d at 357.
Here, there was only one alleged criminal act-the murder of Harrison. The jury was charged in the disjunctive on the different manner and means that Smith could have used to commit the criminal act. Because the jury was not required to be unanimous as to the manner and means of how the offense was committed, there was no error in the jury charge. See Leza, 351 S.W.3d at 357-58; Young, 341 S.W.3d at 428 . Accordingly, we resolve Smith's second issue against him. Motion for Mistrial
In his third issue, Smith contends the trial court erred by denying his motion for mistrial after the State elicited testimony in violation of a motion in limine granted by the trial court. Prior to trial, Smith made an oral motion in limine to require the prosecutor to approach the bench before any witness testified Smith was a drug dealer. The trial court granted the motion with the exception of any behavior that was res gestae or explanatory of the offense.
During the punishment phase of the trial, Officer Matthew Gnagi testified that on January 19, 2009, he arrested Smith for possession of marijuana and seized over $1,600 that was in Smith's pocket. When asked why he seized the money, Gnagi responded, "He was carrying drugs and [based on] previous information, possibly drug dealing, so we seized it, seized the money." The trial court sustained Smith's objection and instructed the jury to disregard the testimony. The trial court denied Smith's motion for mistrial.
We review a trial court's refusal to grant a mistrial for an abuse of discretion. Coble v State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 3030 (2011). We uphold the trial court's ruling if it was within the zone of reasonable disagreement. Id. "Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required." Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); see also Ocon v. State, 284 S.W.3d 880, 884-85 (Tex. Crim. App. 2009) (mistrial is extreme remedy and should be granted "'only when residual prejudice remains' after less drastic alternatives are explored" (quoting Barnett v. State, 161 S.W.3d 128, 134 (Tex. Crim. App. 2005)).
Whether a witness's improper reference to an extraneous offense warrants a mistrial depends on the particular facts of the case. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999); see also Ocon, 284 S.W.3d at 884. A mistrial is required only when the improper question or evidence is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009) (per curiam); Ladd, 3 S.W.3d at 567. An instruction to disregard will ordinarily cure error associated with a witness's improper reference to an extraneous offense committed by the defendant. Id.; Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) (per curiam). We presume the jury followed the trial court's instruction to disregard testimony in absence of evidence that it did not. Ladd, 3 S.W.3d at 567 (quoting Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987); State v. Boyd, 202 S.W.3d 393, 402 (Tex. App.-Dallas 2006, pet. ref'd).
Even though Smith contends Gagni's reference to "possibly drug dealing" was inflammatory and caused the jury to sentence Smith based on a crime for which he was not convicted, nothing in the record suggests the statement was of such a character that it was impossible to withdraw the impression produced on the minds of the juror. First, the reference to "possibly drug dealing" by Gagni was brief, did not contain any substantive facts, was not repeated by the State, and was followed by a prompt instruction to disregard. Second, the jury sentenced Smith to forty-five years' imprisonment, much less than the life sentence requested by the State, indicating it was not unduly influenced by Gagni's statement. Third, the jury heard evidence other than Gagni's testimony about Smith's involvement with drugs. In the guilt/innocence phase of the trial, the jury heard Smith admit during his interview with Mendez that he smoked marijuana. Smith also asserted that Rhodes's request that Smith sell him marijuana led to an altercation between the two men. Smith repeatedly said he refused Rhodes's request because he only had enough marijuana for personal use, not because he did not sell marijuana. Further, the jury heard the recording of Mendez's interview of Smith in which Mendez said that he believed Smith sold drugs. During the punishment phase of the trial, the jury heard testimony from Officer Joe Morin about Smith's arrest during the raid of a drug house. Morin testified there were 302 grams of marijuana in the drug house and much of it was packaged in individual baggies. Smith was found hiding in a closet, but was not charged with an offense because Morin's confidential informant had not purchased drugs from Smith and Morin knew buyers were allowed to enter the drug house. Officer Kurt Carroll also testified about a raid on a separate drug house. Smith was sitting on the living room couch. There were 886.8 grams of marijuana packaged in baggies on the living room couch, the floor of the living room, and in a closet. Smith had an empty baggie in his pocket. Carroll testified the drug house had extensive security and, with a house having that type of security, usually only trusted individuals were allowed inside.
After reviewing the entire record, including the nature and extent of the evidence before the jury when it considered punishment, and the trial court's prompt instruction to disregard Gagni's statement, we conclude the instruction cured any prejudice flowing from Gagni's statement. Nothing in the record suggests the brief reference to "possibly drug dealing" was so highly prejudicial and incurable that the trial court erred by denying the motion for mistrial. Simpson v. State, 119 S.W.3d 262, 272-74 (Tex. Crim. App. 2003). We resolve Smith's third issue against him.
The trial court's judgment is affirmed.
ROBERT M. FILLMORE
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101555F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ROSHAUN NICHOLAS SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01555-CR
Appeal from the 292nd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F09- 51111-V).
Opinion delivered by Justice Fillmore, Justices Bridges and O'Neill participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 23, 2012.
ROBERT M. FILLMORE
JUSTICE