texas-health-and-human-services-commission-texas-department-of-assistive ( 2010 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-09-00270-CR
Robert Henry Smith, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
NO. CR2008-491, HONORABLE JACK H. ROBISON, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found appellant Robert Henry Smith guilty of murder. See Tex. Penal Code
Ann. § 19.02(b) (West 2003). The jury assessed punishment at thirty years’ imprisonment and
imposed a $6,000 fine. In three issues, Smith argues that: (1) the evidence is factually insufficient
to support his conviction; (2) the evidence is legally insufficient to establish the finality of one of the
convictions used for enhancement of his sentence; and (3) the trial court erred in imposing a fine
when one was not authorized by statute. We overrule Smith’s first and second issues challenging
the sufficiency of the evidence, but we sustain his third issue challenging the imposition of the
$6,000 fine. Accordingly, we modify the trial court’s judgment to delete the fine and affirm the
judgment as modified.
BACKGROUND
On the evening of July 11, 2008, Nancy Shields used her cell phone to call 9-1-1 from
her home in Comal County.1 During the call, she stated that she needed help and that her boyfriend
was trying to burn her, hurt her, and take her car. When asked what her boyfriend was doing at that
moment, she said that he was grabbing her and would not let her go. She then yelled, “he’s stabbing
me” several times before she apparently dropped the phone. At that point, she could be heard
shouting at her boyfriend, Smith, stating “this is what you did to me.” The phone call ended a short
time later.
Nineteen seconds after the call ended, Smith called 9-1-1 from a landline phone in
the home. Smith stated that Shields stabbed herself in the stomach with a knife. He also stated, “I’ll
go to jail.” In the background, Shields can be heard shouting various things at Smith, including “you
stabbed me,” “look at what you’ve done to me,” and “this is your fault.”
At a later point in the call, Smith stated to Shields, “Come on, hit me again.” Smith
also stated to the 9-1-1 operator, “I tried taking the knife away, and I got cut.” When asked by the
9-1-1 operator if he and Shields were intoxicated, Smith said that they both had been drinking
alcohol. Smith stated, “I’ll go to jail for it, but you can run DNA on it.” When asked what Shields
was doing at that moment, Smith stated that she was sitting down and saying that “it was all [his]
fault.” Throughout this part of the call, Shields can be heard in the background shouting various
things at Smith.
1
All of the factual background regarding what occurred in this case is derived from the testimony
and exhibits admitted at trial.
2
Eventually, Smith stated that Shields was standing up and walking back toward the
kitchen and toward her bedroom. He also stated that Shields was “bleeding bad” and that they
“needed EMS immediately.” A short time later, Smith said that Shields laid down “like she [was]
losing energy” and that she was breathing heavily. When asked where Shields was located in the
home, Smith said she was “laying right in the door” and that she was telling him that she hated him
and saying good-bye. When asked if Shields was still conscious, Smith indicated that she was
“barely” conscious. He stated that he was “kicking her in the legs.” When the 9-1-1 operator told
him not to kick her, Smith stated that he was “pushing her legs.” He can then be heard shouting
“Nancy” at Shields and then stating to the 9-1-1 operator that Shields was unconscious and that he
needed EMS immediately. Smith hung up the phone when EMS arrived a short time later.
Deputy Martin Escarzaga and a constable were the first to arrive at the scene. EMS
personnel had also arrived outside the home but were waiting for the scene to be secured before
entering. Escarzaga and the constable ordered Smith out onto the front porch, and Escarzaga
handcuffed Smith and placed him in the back of a patrol car. EMS personnel then immediately
entered the home and began treating Shields. Meanwhile, Escarzaga entered the home and found
a kitchen knife on the floor to the right of the front door. The knife was behind a chair and
somewhat concealed by a curtain. Escarzaga took the knife into evidence. He testified that in
addition to observing the knife, he also noticed that some items had been “thrown around” inside
the home.
When Paramedic Robert Campbell arrived at the scene with another paramedic, he
found Shields lying on her stomach surrounded by several puddles of blood at the front door of the
home. Campbell turned Shields over. He testified that her shirt was open and that he could see a
3
laceration under her right breast. Shields had a very weak pulse and was in and out of consciousness.
Campbell called a dispatcher and requested a helicopter to transport Shields. At one point while the
paramedics were treating her and preparing her for transport, Shields stated, “he got my leg.” As a
result, Campbell cut off Shields’s pants on her left leg and found a laceration on the outside of her
upper thigh. Campbell also observed lacerations on Shields’s forearms and testified that the
lacerations looked like defensive-type wounds. A helicopter eventually arrived and transported
Shields to a hospital, where she later died.
Detective Vance Weltner arrived at Shields’s home after paramedics had taken her
from the home. He and another detective spoke with Smith outside the home. Smith had a bite mark
on his chest, and he told Weltner that Shields had bitten him. Smith also had a scratch or laceration
on his chest. In addition, Weltner observed a cut on Smith’s right hand, which he testified could be
consistent with a defensive wound. Weltner also noticed blood on Smith’s clothing and testified that
he found it suspicious that Smith gave different accounts of how the blood got there.
After speaking with Smith, Weltner and the other detective went inside the home.
Weltner observed blood, broken items, and bloody clothing in the home and testified that the scene
appeared consistent with other violent scenes he had observed. He collected considerable evidence
at the scene, including a landline phone; Smith’s DNA; swabs of blood taken from Smith’s right
hand, left pinky finger, left forearm, and right elbow; the jeans, shirt, and boots worn by Smith; and
swabs of blood from the living-room carpet, the butcher block in the kitchen, and the kitchen floor.
He also took several photos, including photos of Smith; Smith’s right hand, chest, jeans, and boots;
the kitchen; the kitchen countertop; and the living room. He explained that the photos of Smith
showed a bite-mark on Smith’s chest and blood on his jeans, right hand, and boots. The photos of
4
the home showed trails of blood on the kitchen floor leading toward the living room and bedroom;
blood on the side of the kitchen countertop; a broken porcelain chicken and an overturned walker
and fan on the kitchen floor; and blood on the landline phone, which was on the living-room floor.
At some point, the detectives removed Smith’s handcuffs and allowed him to go back
inside the home to show them what had happened when the stabbing occurred. An investigator
videotaped the scene while Smith and the detectives were in the home. In the video, one of the
detectives can be seen collecting swabs of blood from several places on the kitchen floor. The
detective also collected swabs of the inside of Smith’s mouth.
Also during the video, Smith explained how the stabbing allegedly occurred, stating
that Shields grabbed one of the kitchen knives from a knife set and stabbed herself in the abdomen
while standing in the kitchen. Smith then demonstrated how Shields allegedly walked through the
kitchen, bleeding, before falling to the floor near the living room. He stated that he called 9-1-1
immediately after Shields stabbed herself. He stated that after Shields fell, he “put her up there”
while he was still on the phone. He then explained that the 9-1-1 operator told him to get away from
Shields, and he did so. He stated that the 9-1-1 operator asked him whether Shields was conscious
and that he responded that he did not know and then started “pushing on her leg.” As he spoke, he
demonstrated how he had pushed her leg with his right foot to check for responsiveness. He
explained that he did not remember or did not know how certain overturned items in the house got
tipped over or how a metronome had become lodged in one of the walls.
When asked about the 9-1-1 calls, Smith explained that Shields called 9-1-1 on a cell
phone before the stabbing occurred. He stated that Shields eventually hung up the cell phone and
“then [he] had it.” He stated that he then called 9-1-1 using the landline phone. Regarding the
5
content of Shields’s 9-1-1 call, Smith stated that he did not know what Shields said during the call
because he was “going outside” and “trying to leave.” When one of the detectives pointed out that
Smith had previously stated that Shields told the 9-1-1 operator that Smith was trying to burn her,
Smith stated that Shields “was standing there with a damn lighter to her arm, saying that I’m burning
her. And I ain’t burning her. I ain’t touching her.” When asked how blood got on the landline
phone, he stated that it happened when Shields dropped to the floor and he “had her there,” and that
he got blood on him while he was still on the phone with the 9-1-1 operator. At the end of the video,
one of the detectives stated, “I’m going to ask you straight out, did you stab her?” Smith responded,
“No sir, I didn’t. And that’s the truth.” The detectives did not arrest Smith that night.2
After Shields’s death, Medical Examiner Randall Frost conducted an autopsy of her
body. Frost observed three stab wounds. He testified that all of the wounds were consistent with
the kitchen knife found at the scene. One of the stab wounds was in the abdomen and punctured the
liver. Frost testified that the wound indicated that the knife entered the body at a forty-five degree
angle and that the sharp end of the knife had been pointing upward and outward. Frost identified a
second stab wound on the outside of Shields’s right thigh. He testified that the wound was
approximately five inches deep. The wound had a vertical orientation and indicated that the blunt
end of the knife had formed the bottom of the wound while the sharp end of the knife had formed
the top of the wound. Frost observed the third stab wound on the front of Shields’s left forearm. He
testified that the wound was approximately two or three inches in depth and that there was a
possibility that the wound could have been a defensive wound. He further testified that all of the
2
The record does not indicate how much time passed before Smith was arrested.
6
stab wounds could have been self-inflicted. However, he noted that the forearm wound was in an
unusual location for a self-inflicted wound.
Frost also observed other injuries on Shields’s body, including an abrasion underneath
her breast, a cluster of abrasions on her right-flank area, several abrasions and scratches near the stab
wound in her forearm, scratches on the knuckle of her right index finger, a bruise on the back of her
right hand, a group of bruises on her upper left arm, a bruise on her left hand, a large bruise on the
inside of her upper right arm, two bruises on her right forearm, a bruise on the outside of her right
forearm, and a small bruise on the front of her right leg.
Frost testified that the cause of Shields’s death was the stab wound to her abdomen
because the wound punctured the liver, causing extensive bleeding. Frost ultimately classified
Shields’s death as a homicide. He also testified that at the time of Shields’s autopsy, she had a
blood-alcohol level that was slightly below the legal limit for operating a motor vehicle in Texas.
Mark Wild, a latent fingerprint examiner for the Texas Department of Public Safety
(“DPS”), analyzed the kitchen knife used in the stabbing and testified that there were no latent
fingerprints on the knife. Kimberly Clement, a forensic scientist for DPS, compared Shields’s and
Smith’s DNA to DNA evidence collected at the scene of the stabbing and testified that Shield’s
DNA was the only DNA found in the blood on the kitchen knife used in the stabbing, the blood on
the kitchen floor, and the blood on the side of the countertop in the kitchen. Shields’s DNA was also
found in the blood on Smith’s left pinky finger, right elbow, right boot, and jeans. In the blood on
Smith’s left forearm and in a saliva stain on Smith’s t-shirt, Clement identified a mixture of Smith’s
and Shields’s DNA. She testified that Smith’s DNA was found in the blood on Smith’s right palm,
one of the bloodstains on Smith’s t-shirt, and the blood on the landline phone.
7
Both the State and Smith called experts to testify regarding their analyses of the
crime-scene evidence. The State’s expert, Lieutenant Rick Pippins, testified extensively about his
interpretation of the blood evidence and concluded that Smith stabbed Shields while the two of them
were involved in a close-combat situation. He testified that one of the bloodstains on Smith’s jeans
was transferred directly from a blood source and took on the shape of a blood-flow pattern. Pippins
testified that another bloodstain on Smith’s jeans was so small that it indicated that it was deposited
there by some type of force.
Pippins further testified that one of the bloodstains on Smith’s right boot was not a
naturally occurring drop and was caused by some type of impact or force associated with blunt-force
trauma or stabbing incidents. Because the bloodstain was identified as consistent with Shields’s
DNA, Pippins concluded that Smith had to have been within a few feet of Shields when the blood-
causing injury was inflicted. Pippins also testified that the bloodstain on Smith’s left pinky finger
that was identified as consistent with Shield’s DNA also had to have been transferred while Smith
was in close contact with Shields.
Pippins examined photographs of Smith’s right hand and observed a cut on Smith’s
thumb, blood on his thumb and hand, and areas that were void of blood on his palm. Given that the
blood on Smith’s right hand matched Smith’s DNA, Pippins concluded that the knife likely slipped
in Smith’s right hand as he stabbed Shields, causing a cut on his right hand.
Smith called Louis Akin, a crime-scene analyst, to testify regarding the significance
of the crime-scene evidence. Akin concluded that all of the evidence was consistent with a scenario
in which Shields stabbed herself. He testified that the bloodstain pattern in the kitchen indicated that
the stabbing occurred in a corner of the kitchen near the stove and that the absence of any sign of a
8
struggle—no blood smears, overturned items, or displaced throw rugs—at that location indicated the
stabbing was self-inflicted.3 He also testified that the bloodstains starting at the location near the
stove and trailing across the kitchen in a straight line indicated the absence of a struggle because
Shields would not have walked in a straight line if she had been involved in a struggle with Smith.
Akin also testified that the general lack of footprints or smears in the bloodstains indicated that there
was not a violent struggle taking place. In addition, Akin testified that he would expect to see more
impact blood—blood that is “thrown off” or “exploded out” of the body before it impacts a
surface—and more transfer blood—blood that is transferred to an object when something bloody
touches the object—if there had been a struggle. Akin further testified that a space that was void of
blood on Shields’s right palm could have been caused by Shields holding the knife in her right hand.
In addition to evidence from the night of the stabbing, Smith also offered evidence
regarding two previous domestic disputes between him and Shields. Officer Christopher Vargas
responded to the first domestic dispute, which occurred in April 2008. Vargas testified that he
observed that Shields was upset and exhibiting aggressive behavior when he arrived at the home,
including throwing beer cans while she was outside in the yard. Vargas observed that Smith had bite
marks on his body and blood on his arms. Shields had some injuries on her body that Vargas
determined may have occurred when Shields was biting Smith. Ultimately, Vargas concluded that
Shields was the primary aggressor in the dispute and arrested her for assault. Smith signed a non-
prosecution affidavit, but Vargas still took Shields to jail.
3
The State’s expert, Rick Pippins, also concluded that the initial stabbing occurred in the corner
of the kitchen near the stove.
9
Vargas testified that Shields was upset, angry, and emotional on the way to jail. She
used obscenities and was “pretty belligerent.” At one point, she talked about suicide and asked
Vargas to kill her. She also rolled down the window next to her while he was driving and attempted
to climb out the window. As a result, Vargas stopped the car and secured Shields and the windows
before continuing to the jail.
Shields was booked into the jail by Corrections Corporal Shawn Cunningham. When
Cunningham interviewed Shields, Shields stated that she was depressed, that she had thought about
killing herself that day, and that she had attempted suicide the previous week. Cunningham testified
that Shields appeared depressed, hopeless, and sad. Shields was placed on “suicide watch,” during
which she was checked every fifteen minutes while she was in jail to ensure she was not attempting
to harm herself.
The second previous domestic dispute between Smith and Shields occurred in June
2008. Officer Julie Prescott responded to a call for assistance from Shields’s home and arrived to
find Shields on the front porch and Smith outside next to a car in the driveway. Prescott noticed that
Shields appeared angry and upset. Smith approached Prescott and showed her a burn mark on his
left forearm. He explained that Shields had pressed a lit cigarette against his arm to try to get the car
keys away from him. Shields confirmed that she had done so. Prescott observed that both Smith
and Shields appeared intoxicated. Prescott arrested Shields for family violence. Shields was upset
and crying at the time of her arrest.
When Prescott and Shields arrived at the jail, Officer Daniel Nichols booked Shields
into the jail. During Nichols’s interview of Shields, Shields stated that she was depressed, that she
10
had thought of committing suicide the previous day, and that she had attempted suicide several years
earlier after a miscarriage.
As further evidence of Shields’s mental state, Smith called Dr. Gerlyn
Friesenhahn—a neurologist who treated Shields from November 2005 to July 2007—to testify at
trial. Friesenhahn testified that Shields had been diagnosed with a condition called chronic
inflammatory demyelinating polyneuropathy, a debilitating disease, and that Friesenhahn had
prescribed a medication called Neurontin for nerve pain. Friesenhahn also testified that by the time
of Shields’s last visit, Shields was experiencing anxiety and depression and that Friesenhahn
prescribed a medication called Paxil as treatment. According to Friesenhahn, the consumption of
alcohol could have worsened Shields’s depression. Friesenhahn also testified that Shields never
indicated to her that she had suicidal thoughts.
The State offered two 9-1-1 calls—one from a neighbor and one from
Smith—regarding another domestic dispute between Shields and Smith that occurred at some point
prior to the night of the stabbing.4 In the 9-1-1 call from Shields’s neighbor, the neighbor stated that
Smith was drunk, yelling at Shields, and refusing to leave the property. The neighbor stated that
Shields had asked Smith “over and over again” to leave but he would not leave. The neighbor
further stated that she had been standing between them trying to “keep the peace” and that Smith had
lunged at Shields. She also stated that she and Shields had finally gotten Smith out of the house and
locked the door. At the end of the call, she indicated that Smith had just called 9-1-1 on
another phone.
4
The exhibit volume in the record provides an incorrect date for one of the 9-1-1 calls (as
evidenced by the fact that the date was after Shields’s death) and provides no date for the other call,
and none of the evidence in the record otherwise indicates the date of the calls.
11
The second 9-1-1 call offered by the State was the call from Smith that was placed
during the same incident. In the call, Smith stated that he and Shields were in “another dispute,” and
that the dispute arose because Shields and the neighbor said that he would not leave the property.
He stated that Shields had just locked him out of the house. Smith further stated that he and Shields
had both been drinking. At the end of the call, he stated that he would leave the property and go
across the street.
After hearing all the evidence, the jury began deliberations. On the third day of
deliberations, the jury indicated that it was deadlocked, and the trial court gave the jury an Allen
charge.5 On the fourth day of deliberations, the jury reached a verdict and found Smith guilty of
murder. At the punishment hearing, Smith pled true to two enhancement allegations, one involving
a felony conviction for possession of a forged check in 1994 and the other involving a felony
conviction for making false statements to a federal firearms licensee in 1999. Smith also formally
stipulated that the enhancement allegations were true and that the penitentiary packets for each of
the previous convictions were admissible. The jury found that both of the enhancement allegations
were true and assessed punishment at thirty years’ imprisonment and a $6,000 fine.6 This appeal
followed.
5
An Allen charge reminds the jury that if it is unable to reach a verdict, a mistrial will result, the
case will still be pending, and there is no guarantee that a second jury would find the issue any easier
to resolve. See Barnett v. State, 189 S.W.3d 272, 277 n.13 (Tex. Crim. App. 2006) (citing Allen
v. United States, 164 U.S. 492, 501 (1896)).
6
The range of punishment was twenty-five to ninety-nine years. See Tex. Penal Code Ann.
§12.42(d) (West Supp. 2009).
12
DISCUSSION
On appeal, Smith contends that: (1) the evidence is factually insufficient to support
his conviction; (2) the evidence is legally insufficient to establish the finality of the first enhancement
conviction; and (3) the trial court erred in imposing a fine when one was not authorized by statute.
We address each issue below.
Factual Sufficiency of Evidence Supporting Conviction
In his first issue, Smith argues that the evidence is factually insufficient to support
his conviction because the evidence that Smith stabbed Shields was greatly outweighed by the
evidence that Shields stabbed herself. In reviewing the factual sufficiency of the evidence, we must
weigh all the evidence in a neutral light and set the finding aside only if the evidence is so weak that
the verdict seems clearly wrong or manifestly unjust, or the verdict is against the great weight and
preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006).
An appellate court must be appropriately deferential to the jury’s verdict in order to avoid
substituting its own judgment for that of the factfinder. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.
Crim. App. 2002). The jury is the sole judge of the credibility of the witnesses and the weight to be
accorded their testimony. Id.
Here, the record includes a considerable amount of directly conflicting evidence. To
begin with, the 9-1-1 calls on the night of the stabbing and the videotape of Smith at the crime scene
contain conflicting statements provided by Shields and Smith. During Shields’s 9-1-1 call, she
stated that Smith was trying to burn her, hurt her, and take her car, and she yelled, “he’s stabbing
me” several times. In addition, during Smith’s 9-1-1 call, Shields could be heard shouting various
13
things at Smith, including “you stabbed me,” “look at what you’ve done to me,” and “this is your
fault.” When paramedics were later treating Shields, Shields stated, “he got my leg.” Paramedics
removed Shields’s pants and found a laceration on the outside of her upper thigh.
In contrast to Shields’s statements, Smith’s statements in his 9-1-1 call and the
videotape of him at the crime scene indicate that Shields stabbed herself. Specifically, in his call to
9-1-1, Smith stated that Shields stabbed herself in the stomach with a knife. He also stated: “I’ll go
to jail for it, but you can run DNA on it.” Later, after paramedics had removed Shields from the
home and detectives were speaking with Smith on videotape as they examined the scene, Smith
stated that Shields grabbed one of the kitchen knives from a knife set and stabbed herself in
the abdomen while standing in the kitchen. At the end of the video, one of the detectives said,
“I’m going to ask you straight out, did you stab her?” Smith responded, “No sir, I didn’t. And
that’s the truth.”
Another example of directly conflicting evidence is the expert opinions of Lieutenant
Rick Pippins, who testified that the crime-scene evidence indicated that Smith stabbed Shields, and
Louis Akins, who testified that the crime-scene evidence indicated that Shields stabbed herself.
Pippins testified that a bloodstain on Smith’s jeans and one on Smith’s right boot were not naturally
occurring drops and were deposited with some type of force. The bloodstain on Smith’s right boot
was identified as containing Shields’s DNA, and Pippins determined that Smith had to have been
within a few feet of Shields when the drop impacted his boot with force. In addition, Pippins
testified that one of the bloodstains on Smith’s jeans was transferred directly from a blood source
14
and took on the shape of a blood-flow pattern.7 Pippins also testified that a bloodstain on Smith’s
left pinky finger that was identified as consistent with Shield’s DNA also had to have occurred while
Smith was in close contact with Shields. Given the photographs showing blood on Smith’s right
hand and the evidence that the blood matched Smith’s DNA, Pippins concluded that the knife
used in the stabbing likely slipped in Smith’s right hand as he stabbed Shields, causing a cut on his
right hand.8
The expert called by the defense, Louis Akin, testified that all of the evidence was
consistent with a scenario in which Shields stabbed herself. Akin testified that the area in the kitchen
where the stabbing initially occurred showed no signs of a struggle. Specifically, he noted that the
throw rugs in the area were not displaced and that there were no blood smears or overturned items
7
Smith argues that Pippins’s opinion regarding the blood on Smith’s clothing is undermined by
the possibility that the clothing could have become blood-stained when Detective Vance Weltner
later asked Smith to remove his clothing while Smith was still inside the home. Weltner testified
that Smith removed his shirt and boots in the living room and his jeans in the bedroom. Smith
asserts that the blood throughout the home could have been transferred to Smith’s clothing when he
removed it. However, Smith already conceded in another argument that there was no blood in the
bedroom, where Smith removed his jeans. In addition, Weltner testified that Smith was not around
any blood when he removed his clothing. Further, Pippins testified that a bloodstain on Smith’s
jeans and one on Smith’s right boot were deposited with some type of force and that Smith had to
have been within a few feet of Shields when the drop on his boot, which was identified as Shields’s
blood, impacted his boot with force. Pippins also testified that the other bloodstain on Smith’s jeans
was transferred directly from a blood source. Because there is evidence that the blood on Smith’s
clothing impacted it with force or was transferred directly from a blood source, and because there
is no evidence that Smith’s clothing was contaminated while Smith removed it, we reject Smith’s
argument.
8
Smith contends that Pippins’s determination that Smith likely cut his hand while stabbing
Shields is undermined by evidence that Shields’s DNA was the only DNA found on the knife.
However, Smith does not deny that his hand was cut by the knife. In his brief, he states that during
his 9-1-1 call, he “indicated his hand was cut when he tried to take the knife away from [Shields].”
In either case, the absence of his DNA on the knife is simply one of many facts to consider in the
factual-sufficiency analysis.
15
in the area. He also noted that the blood drops that trailed from the area where the initial stabbing
occurred to the opposite side of the kitchen were in a straight line, which he stated was inconsistent
with movement associated with a struggle. Akin also testified that the general lack of footprints or
smears in the bloodstains indicated that there was not a violent struggle taking place. In addition,
Akin testified that a violent struggle would have resulted in more blood impacting surfaces with
force and more blood being transferred from one surface to another. Akin further testified that a
space that was void of blood on Shields’s right palm could indicate that Shields had held the knife
in her right hand, thus blocking the blood from that area.
Up to this point in the evidence, a decision about whether Smith stabbed Shields or
Shields stabbed herself could be made only after judging the credibility of the witnesses and deciding
the weight to be accorded their testimony. As we have previously stated, both of these
determinations rest solely with the jury.9 See Vasquez, 67 S.W.3d at 236.
9
In his brief, Smith asserts that his expert, Louis Akins, had better credentials than the State’s
expert, Rick Pippins. However, this is an issue that goes to the credibility of the experts and the
weight to be accorded their testimony, which is to be determined solely by the jury. See Vasquez
v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). The same is true for another argument
asserted by Smith—that Shields’s claim in her 9-1-1 call that Smith stabbed her was unreliable
because there was no blood in the bedroom where her cell phone was found and because she did not
scream or make other sounds of pain during the call. Any analysis of Shields’s demeanor in her 9-1-
1 call goes to her credibility and the weight to be given her statements, an issue to be decided by the
jury. See id. Further, it is unclear from the record whether Shields was in the bedroom at any point
during the 9-1-1 call. Rather, the record establishes only that she called from her cell phone and that
the cell phone was later discovered in the bedroom. In addition, in a videotape filmed at the crime
scene after Shields was removed from the home, Smith stated to a detective that Shields called 9-1-1
on a cell phone before the stabbing occurred, that she eventually hung up the cell phone, and that
“then [he] had it.” Thus, jurors could have reasonably concluded that Smith took or threw the phone
into the bedroom at some point after Shields ended her 9-1-1 call.
16
The remaining evidence offered by Smith includes evidence of two previous domestic
disputes between Shields and Smith and evidence of Shields’s history of depression, suicidal
thoughts, and suicide attempts. Specifically, regarding the previous domestic disputes, police
officers testified that they were called to Shields’s home on two separate occasions to address
disputes between Shields and Smith, and on both occasions, they arrived to find Shields in an
aggressive, agitated state. On the first occasion, Officer Christopher Vargas observed that Smith had
bite marks on his body and blood on his arms. Vargas concluded that Shields was the primary
aggressor in the dispute and arrested her for assault. On the second occasion, Officer Julie Prescott
observed a burn mark on Smith’s left forearm. Smith explained to Prescott that Shields had pressed
a lit cigarette against his arm to try to get the car keys away from him, and Shields confirmed that
she had done so. Prescott arrested Shields for family violence.
Regarding Shields’s history of depression, suicidal thoughts, and suicide attempts,
Smith offered evidence of Shields’s behavior after her two arrests and testimony from Shields’s
neurologist. For example, Officer Vargas testified that Shields was upset and belligerent as she rode
in the back of his patrol car after her arrest. During the ride, she talked about suicide and asked
Vargas to kill her, and she rolled down the window and attempted to climb out the window while
he was driving. Corrections Corporal Shawn Cunningham testified that when Shields was booked
into the jail, she stated that she was depressed, that she had thought about killing herself that day,
and that she had attempted suicide the previous week. Cunningham testified that Shields appeared
depressed, hopeless, and sad. Shields was placed on “suicide watch.” Similarly, when Shields was
booked into jail after her second arrest, she stated that she was depressed, that she had thought of
17
committing suicide the previous day, and that she had attempted suicide several years earlier after
a miscarriage. Further, Dr. Gerlyn Friesenhahn, Shield’s neurologist from November 2005 to July
2007, testified that Shields was suffering from a debilitating disease as well as anxiety and
depression and that she was taking Neurontin for nerve pain and Paxil for her anxiety and
depression. According to Friesenhahn, the consumption of alcohol could have worsened
Shields’s depression.
Additional remaining evidence includes the testimony of Medical Examiner Randall
Frost, who conducted an autopsy of Shield’s body. Frost testified that at the time of the autopsy,
Shields had a blood-alcohol level that was slightly below the legal limit for operating a motor vehicle
in Texas. Frost also testified that after conducting the autopsy, he determined that Shields’s death
was a homicide.
Considering all of the evidence supporting a conclusion that Smith stabbed
Shields—including statements Shields made in her and Smith’s 9-1-1 calls; the testimony of
Paramedic Robert Campbell that Shields stated, “he got my leg”; the testimony of Lieutenant Rick
Pippins; and the testimony of Medical Examiner Randall Frost—and all of the evidence supporting
a conclusion that Shields stabbed herself—including statements Smith made during his 9-1-1 call
and after the stabbing; the testimony of Crime-Scene Analyst Louis Akin; and the testimony of
police officers and Shields’s neurologist regarding Shields’s history of mental instability and
violence against Smith—we conclude that Smith’s conviction is not clearly wrong, manifestly unjust,
or against the great weight and preponderance of the evidence. See Watson, 204 S.W.3d at 414-15.
18
Although the evidence of Shields’s mental instability and aggressive behavior is
considerable, the evidence of what occurred on the night in question—the ultimate determination
in this case—is also considerable and cannot be decided without determinations of the credibility
of the witnesses and the weight to be accorded their testimony. Such determinations fall solely
within the jury’s purview, and we must be appropriately deferential to the jury’s verdict. See
Vasquez, 67 S.W.3d at 236. To do otherwise here, where there is a substantial amount of evidence
of Smith’s guilt, would be to substitute our own judgment for that of the jury, which we may not do.
See id. “Although an appellate court’s factual sufficiency review of the evidence allows the court
to second-guess the jury to a limited degree, the review should still be deferential to the jury’s
verdict.” Williams v. State, 301 S.W.3d 675, 685 (Tex. Crim. App. 2009) (citing Roberts v. State,
200 S.W.3d 521, 524 (Tex. 2007)). Because Smith’s conviction was not against the great weight and
preponderance of the evidence, we overrule Smith’s first issue. See Watson, 204 S.W.3d at 414-15.
Finality of Conviction Used for Enhancement
In his second issue, Smith contends that the evidence is legally insufficient to prove
the finality of the first conviction that was used for enhancement of his sentence. During the
sentencing hearing, Smith pled true to two enhancement allegations, one regarding a conviction for
possession of a forged check in 1994 and the other regarding a conviction for making false
statements to a federal firearms licensee in 1999. Smith did not object to the admission of a
penitentiary packet for each of the previous convictions. In fact, he stipulated to the two previous
convictions and to the admissibility of the two penitentiary packets in a signed Stipulation of
Evidence that was admitted into evidence at the hearing.
19
Smith challenges the finality of his 1994 conviction for possession of a forged check.
The penitentiary packet for the conviction shows that Smith pled guilty to the offense, that he was
sentenced to a term of six years in prison, and that he was “fully advised . . . as to the law regarding
the filing of Motions for New Trial, Motions in Arrest of Judgment, and Notice of Appeal.” At the
bottom of the judgment in the case, a notation states: “Notice of Appeal: DENIED.”
As a general rule, the State must prove the finality of a conviction before the
conviction can be used for enhancement purposes. See Fletcher v. State, 214 S.W.3d 5, 8 (Tex.
Crim. App. 2007); Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App. 1981). However, if a
defendant pleads “true” to the enhancement paragraph, the State’s burden of proof is satisfied, and
the defendant cannot complain on appeal that the evidence is insufficient to support
the enhancement. See Harvey, 611 S.W.2d at 111; Lugo v. State, 299 S.W.3d 445, 455-56
(Tex. App.—Fort Worth 2009, pet. ref’d); Magic v. State, 217 S.W.3d 66, 70 (Tex. App.—Houston
[1st Dist.] 2006, no pet.).
Smith concedes that he would generally have forfeited his right to appeal the
sufficiency of the evidence to support the enhancement allegation because he pled “true” to the
allegation, but he asserts that this case falls within an exception to the general rule that occurs when
the record affirmatively reflects that the enhancement is improper. See Ex parte Rich, 194 S.W.3d
508, 513 (Tex. Crim. App. 2006); Sanders v. State, 785 S.W.2d 445, 448 (Tex. App.—San Antonio
1990, no pet.). The San Antonio court applied the exception in Sanders when the record showed
that a previous conviction for delivery of marijuana was used to enhance the sentence for a
subsequent conviction for possession of amphetamine even though the first conviction was not final,
20
as evidenced by the fact that the defendant’s probation was revoked and he was sentenced for the
previous conviction after the previous conviction had already been used to enhance the subsequent
conviction. 785 S.W.2d at 448. There, the record clearly demonstrated that the previous conviction
was not final at the time of sentencing for the subsequent conviction.
Here, Smith argues that because the judgment in the 1994 case indicates that he filed
a notice of appeal, the record affirmatively reflects that the conviction was not final. We agree with
Smith that a conviction that has been appealed is not considered final until it is affirmed by the
appellate court and the appellate court’s mandate becomes final. See Fletcher, 214 S.W.3d at 6
(quoting Jones v. State, 711 S.W.2d 634, 636 (Tex. Crim. App. 1986)). However, we disagree that
the 1994 judgment in this case demonstrates that the conviction was appealed.
Although the judgment could indicate that Smith filed a notice of appeal, it also
indicates that any notice of appeal was denied.10 Smith acknowledges that he was not entitled to
appeal on every issue after a plea bargain, but he argues that the denial of his notice of appeal was
improper because he was entitled to appeal jurisdictional issues and pretrial rulings. Thus, he argues,
because he was entitled to file a notice of appeal on some issues and was denied that opportunity,
the conviction was not final. However, regardless of whether Smith was entitled to file a notice of
appeal or did in fact file one, the face of the judgment shows that any notice of appeal was denied
by the trial court, thus rendering the conviction final. See Jones v. State, 77 S.W.3d 819, 824 (Tex.
Crim. App. 2002) (“The right to take an appeal does not equal the pendency of an appeal.”)
10
We state that the judgment “could indicate” that Smith filed a notice of appeal because the
record does not clarify what the trial court’s notation meant. The trial court could have intended to
state only that Smith could not appeal his conviction after a plea bargain. See Tex. R. App. P.
25.2(a)(2).
21
Accordingly, the record affirmatively reflects that Smith’s 1994 conviction was final, and Smith
therefore forfeited his right to appeal the sufficiency of the evidence supporting the finality of the
conviction when he pled “true” to the allegation.
Even if Smith had not forfeited his right to challenge the sufficiency of the evidence
supporting the finality of the conviction, he would not prevail on this issue. The State met its burden
of providing prima facie evidence of the conviction by presenting the penitentiary packet that showed
that Smith’s notice of appeal was denied. If the judgment had indicated that Smith filed a notice of
appeal and the notice of appeal had not been denied, the presumption of finality would have been
overcome, and the State would have been required to provide proof of finality. See Fletcher,
214 S.W.3d at 8. In this case, however, the State made a prima facie showing of finality by showing
that the notice of appeal had been denied, and the burden to prove that the enhancement conviction
had not become final fell on Smith. See id. Smith did not provide any evidence that the conviction
had been appealed. Thus, the evidence was legally sufficient to prove that Smith’s 1994 conviction
for possession of a forged check was final. We therefore overrule this issue.
Authority to Impose Fine as Punishment
In his third issue, Smith contends that the trial court erred in imposing a $6,000 fine
on Smith when a fine was not authorized by statute. The State concedes that the trial court erred in
imposing the fine. We agree with both parties that the statute that provides the applicable
punishment range does not authorize the imposition of a fine. See Tex. Penal Code Ann. §12.42(d)
(West Supp. 2009). The statute states only that:
22
[I]f it is shown on the trial of a felony offense other than a state jail felony punishable
under Section 12.35(a) that the defendant has previously been finally convicted of
two felony offenses, and the second previous felony conviction is for an offense that
occurred subsequent to the first previous conviction having become final, on
conviction he shall be punished by imprisonment in the Texas Department of
Criminal Justice for life, or for any term of not more than 99 years or less than 25
years.
Id. Because the statute does not authorize the imposition of a fine, we conclude that the trial court
erred in imposing a fine on Smith. Accordingly, we modify the judgment to delete the $6,000 fine.
CONCLUSION
Because we conclude that the evidence is factually sufficient to support Smith’s
conviction and legally sufficient to establish the finality of the first enhancement conviction, and
because we conclude that the trial court erred in imposing a $6,000 fine on Smith, we modify the
trial court’s judgment to delete the fine, and we affirm the judgment as modified. See Tex. R. App.
P. 43.2(b).
__________________________________________
Diane M. Henson, Justice
Before Chief Justice Jones, Justices Waldrop and Henson
Modified, and as Modified, Affirmed
Filed: July 14, 2010
Do Not Publish
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