Damien Dubree Smith v. the State of Texas ( 2023 )

Opinion filed July 7, 2023
In The
Eleventh Court of Appeals
__________
No. 11-21-00269-CR
__________
DAMIEN DUBREE SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 161st District Court
Ector County, Texas
Trial Court Cause No. B-21-0191-CR
MEMORANDUM OPINION
On December 6, 2020, Crystal Araiza was murdered by a gunshot to her face
in a dispute over payment of an additional ten dollars for the purchase of
methamphetamine. Appellant, Damien Dubree Smith, was indicted for that murder.
In Count One of the indictment, the State alleged that Appellant committed the
offense of felony murder, to wit: he committed or attempted to commit an act clearly
dangerous to human life by shooting at or in the direction of Araiza with a firearm,
causing her death, while in the course of and in furtherance of, or in immediate flight
from, his commission or attempted commission of a felony, namely, his possession
of a firearm having previously been convicted of a felony offense. See TEX. PENAL
CODE ANN. §§ 19.02(b)(3), 46.04(a) (West 2019 & Supp. 2022). In Count Two, the
State alleged that Appellant committed the offense of murder. PENAL §19.02(b)(1),
(2). The jury found Appellant guilty of felony murder as alleged in Count One. 1
Based on Appellant’s pleas of “true” to two enhancement allegations, the jury found
the enhancements to be true and assessed his punishment at life imprisonment in the
Institutional Division of the Texas Department of Criminal Justice and a $5,000 fine.
See id. § 12.42(d). The trial court sentenced Appellant accordingly. In his sole issue
on appeal, Appellant challenges the sufficiency of the evidence supporting his
conviction. We affirm.
Factual History
At approximately 2:30 a.m. on December 6, 2020, Yessica Castillo,
Appellant’s roommate, called the 9-1-1 to report that her boyfriend found the body
of a woman across the street from her house, who had been shot in the face.
Although Castillo testified that she had seen Appellant around the same time that the
victim was discovered, Castillo did not inform police that Appellant had been there
when they arrived at the scene. Castillo testified that she saw Appellant get into a
dark vehicle across the street from her house in the early morning hours on the day
the body was found, and that she later heard a sound like a backfire, followed by
screaming. Upon hearing this, Castillo looked at the security camera. She saw
Appellant get out of the dark vehicle and get back into the vehicle he had been
driving—both vehicles then “drove away.” Castillo’s boyfriend saw what appeared
to be a blinking light, later determined to be the victim’s cell phone, on the sidewalk
The trial court granted the State’s motion to dismiss Count Two based on the jury’s guilty verdict
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on Count One.
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across the street. Castillo’s boyfriend went to investigate and found the body of a
deceased woman lying on the sidewalk with a gunshot wound below her left eye.
Detective Donaciano Rocha with the Odessa Police Department (OPD)
identified the victim by her driver’s license as Araiza. Detective Rocha recovered
Araiza’s cell phone from the scene and discovered that she had most recently been
in contact with two individuals, Jennifer Portillo and Appellant. Further
investigation revealed that Portillo, her fiancé Hayley Staggs, Araiza, and Appellant
had all agreed to meet to consummate a drug transaction that night. With this
information, police made efforts to locate Portillo, Staggs, and Appellant.
Portillo testified that she contacted Araiza so that Portillo and Staggs could
obtain drugs prior to leaving Odessa for Texarkana. Araiza represented that she
could help them buy some methamphetamine. Araiza was going to pay for the drugs
in exchange for Portillo and Staggs giving her a ride to a game room. Araiza put
Portillo and Staggs in contact with Appellant to set up the exchange for drugs.
Appellant told Portillo and Staggs to meet him at a location near his house. Portillo,
Staggs, and Araiza arrived at the designated meeting spot and waited there for
approximately ten minutes. While waiting for Appellant, Araiza told Portillo and
Staggs that Appellant was a woman beater, and that he was not a person that she
liked or regularly dealt with.
Appellant arrived at the meeting spot in a gray vehicle, and he parked it in a
driveway across the street from the trio, who were in another vehicle driven by
Portillo. Appellant crossed the street and got into the vehicle. Portillo was in the
driver’s seat, Staggs was in the front passenger seat, Araiza was in the rear driver’s
side seat, and Appellant was in the rear passenger’s side seat. Staggs told Appellant
that they wanted “a twenty” or $20 worth of methamphetamine. Appellant bagged
a single “rock” of methamphetamine and handed it to Portillo; Staggs then “put it in
her bra.” Portillo testified that the atmosphere in the vehicle was “agitated” during
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the exchange. After giving Portillo the drugs, Appellant demanded his money. But
Araiza stalled Appellant telling him that “I will match you at the game room”
implying that Appellant would get his payment somehow from game room winnings.
Araiza had tendered Appellant only $10, not the full $20. At that point, Appellant
got a phone call from Castillo, warning him that he had better not be dealing drugs
in front of her house. After the phone call, the mood inside the vehicle became very
tense. In this atmosphere of mounting hostility, Portillo located and intended to hand
Appellant the remaining $10 to complete the transaction, but before she could do
that, Staggs stopped her.
Staggs testified that she then turned around and saw Appellant with a gun to
Araiza’s head and watched as Appellant pulled the trigger. Portillo testified that she
saw Staggs put her hands up to her face in fear and heard Staggs scream “no, no, no”
before hearing a gunshot. Portillo then turned around and saw that Araiza had been
shot. Appellant got out of the vehicle, returned to his vehicle, and drove away.
Portillo and Staggs removed Araiza’s body from the vehicle, left it on the
sidewalk, and fled the scene. Before leaving town, Portillo and Staggs attempted to
clean some of the blood out of their vehicle and then drove to Texarkana without
informing the police about the murder. At some point on the drive, they discovered
the bullet casing from the shooting and they “threw it out” of the vehicle. Upon their
arrival in Texarkana, having been informed that the police were looking for them,
the two agreed that the following morning Staggs would call her probation officer
and explain what had occurred.
The next morning, Staggs called her probation officer and reported that she
and Portillo had witnessed the shooting but maintained that they had not been
involved. The Texas Rangers interviewed both Portillo and Staggs upon their
surrender. Staggs initially lied during her interview and said that the shooting had
happened in the front yard where Araiza’s body was found, not in the vehicle.
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Consistent with her testimony at trial, Portillo told a Texas Ranger that Appellant
shot Araiza inside their vehicle. Following their interviews, Portillo and Staggs were
both arrested for the murder of Araiza.
During the investigation, Detective Rocha learned that Appellant’s name had
changed on the Facebook profile that he had used to message Araiza, and that the
profile had then been deleted altogether. Using cell phone data to locate Appellant
by triangulating cell phone towers, Appellant’s location was traced to a game room.
Undercover officers then followed Appellant when he left the game room. OPD
Sergeant Justin Caid testified that Appellant drove in a manner consistent with a
person who wanted to avoid being followed. Appellant parked and exited his vehicle
then shortly thereafter got back in the vehicle. The police began surrounding him
and he exited the vehicle and fled on foot. Officers apprehended Appellant who then
resisted arrest. After Appellant was subdued, he was placed in police custody and
interviewed by Detective Rocha.
Appellant frequently changed his story while being interviewed by Detective
Rocha. Initially, Appellant denied ever having met with Araiza, Portillo, and Staggs.
He later changed his story to say that he did meet with them but that he left before
Araiza was shot. Appellant then changed his story—yet again—to say that he was
there and that he saw Staggs shoot Araiza.
In the interview, Appellant gave statements to Detective Rocha that were later
contradicted by the evidence. Appellant told Detective Rocha that he did not own
or carry a weapon. But that was disputed by text message information discovered
on Appellant’s cell phone that referenced his possession of a gun. Further, an
acquaintance of Appellant’s testified that she had actually given Appellant a gun the
night that Araiza was murdered. In his interview with Detective Rocha, Appellant
also claimed that, on the evening in question, he had been sitting in the rear driver’s
seat of the subject vehicle, but the forensic evidence from within the vehicle
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disproved this statement as well. In the interview, Appellant initially denied deleting
his Facebook profile, but he later admitted that he had indeed deleted it.
A digital forensic technician for OPD testified that she was able to use
Appellant’s cell phone to extract information that he had made a number of
incriminating internet searches after Araiza’s death. Appellant had searched for
criminal defense attorneys, how to manage his cell phone location tracking
technology, whether a Ford EcoSport (the vehicle he was driving the night of the
murder) had a GPS locator, and the news websites of the Odessa American and the
Ector County Sheriff’s Department.
Standard of Review and Applicable Law
We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288−89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
of 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 charged offense
beyond a reasonable doubt. Jackson, 443 U.S. at 319; Zuniga v. State, 551 S.W.3d
729, 732 (Tex. Crim. App. 2018); Brooks, 323 S.W.3d at 895; Isassi v. State, 330
S.W.3d 633, 638 (Tex. Crim. App. 2010).
Viewing the evidence in the light most favorable to the verdict requires that
we consider all evidence admitted at trial, including improperly admitted evidence.
Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s credibility
and weight determinations because the factfinder is the sole judge of the witnesses’
credibility and the weight that their testimony is to be afforded. Winfrey, 393 S.W.3d
at 768; Brooks, 323 S.W.3d at 899. The Jackson standard is deferential to the
factfinder’s resolution of conflicts in the testimony, the weight afforded the
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evidence, and reasonable inferences drawn from the facts. Jackson, 443 U.S. at 319;
Zuniga, 551 S.W.3d at 732; Clayton, 235 S.W.3d at 778. We may not reevaluate the
weight and credibility of the evidence to substitute our judgment for that of the
factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Instead,
we determine whether the necessary inferences are based on the combined and
cumulative force of all the evidence when viewed in the light most favorable to the
verdict. Clement v. State, 248 S.W.3d 791, 796 (Tex. App.—Fort Worth 2008, no
pet.). Accordingly, if the record supports conflicting inferences, we presume that
the factfinder resolved the conflicts in favor of the verdict, and we defer to that
determination. Jackson, 443 U.S. at 326; Merritt v. State, 368 S.W.3d 516, 525−26
(Tex. Crim. App. 2012); Clayton, 235 S.W.3d at 778.
“Circumstantial evidence is as probative as direct evidence in establishing the
guilt of an actor, and circumstantial evidence alone can be sufficient to establish
guilt.” Merritt, 368 S.W.3d at 525. Each fact need not point directly and
independently to guilt if the cumulative force of all incriminating circumstances is
sufficient to support the conviction. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007). Because evidence must be considered cumulatively, appellate courts
are not permitted to use a “divide and conquer” strategy for evaluating the
sufficiency of the evidence. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.
2015). Instead, appellate courts must consider the cumulative force of all the
evidence. Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017).
Finally, we measure the legal sufficiency of the evidence by the elements of
the offense as defined by the hypothetically correct jury charge for the case.
Morgan v. State, 501 S.W.3d 84, 90 (Tex. Crim. App. 2016); see also Malik v. State,
953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury
charge “accurately sets out the law, is authorized by the indictment, does not
unnecessarily increase the State’s burden of proof or unnecessarily restrict the
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State’s theories of liability, and adequately describes the particular offense for which
the defendant was tried.” Malik, 953 S.W.2d at 240.
Analysis
In his sole issue on appeal, Appellant challenges the sufficiency of the
evidence to support his conviction. Appellant raises multiple arguments, which he
contends rebut the evidentiary bases of his conviction.
Count One of the indictment alleged that Appellant committed or attempted
to commit an act clearly dangerous to human life by shooting at or in the direction
of Araiza with a firearm, causing her death, while in the course of and in furtherance
of, or in immediate flight from, the commission or attempted commission of a
felony, namely, his possession of a firearm by a felon.
While Appellant concedes on appeal that Araiza was murdered in Ector
County, on or about December 6, 2020, he challenges the sufficiency of the evidence
as to whether he “intentionally or knowingly caused the death of an individual.”
However, Appellant was not convicted of murder as described in
Section 19.02(b)(1), which requires that one must “intentionally or knowingly”
cause the death of another.2 See PENAL § 19.02(b)(1). Instead, Appellant was
convicted of felony murder under Section 19.02(b)(3), which unlike murder, does
not require a culpable mental state. A person commits the offense of felony murder
when they commit or attempt to commit an act clearly dangerous to human life while
in the course of and in furtherance of, or in immediate flight from, the commission
or attempted commission of a felony that causes the death of an individual. See
PENAL § 19.02(b)(3); see also Lomax v. State, 233 S.W.3d 302, 305 (Tex. Crim.
App. 2007) (“Section 19.02(b)(3) dispenses with a culpable mental state . . . the very
essence of [the felony murder statute] is to make a person guilty of an ‘unintentional’
2
As discussed above, this conduct was alleged in Count Two of the indictment, which was
dismissed.
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murder when he causes another person’s death during the commission of some type
of a felony.”); Walter v. State, 581 S.W.3d 957, 970 (Tex. App.—Eastland 2019,
pet. ref’d) (“[T]he plain language of the felony murder statute requires proof of the
underlying felony, but it does not require any proof of an accompanying mental state
with regard to either causing the death of another or committing an act clearly
dangerous to human life. Thus, Appellant could have been convicted of felony
murder under Section 19.02(b)(3) without a showing that [Appellant] intended to
kill [the victim].”) (emphasis added).
The indictment alleged that the offense committed by Appellant was the
unlawful possession of a firearm by a felon and the dangerous act was shooting at or
near Araiza. Notwithstanding Appellant’s argument that the evidence was
insufficient as to an intentional or knowing mental state, which are not elements of
felony murder, the offense of conviction, we regard the substance of Appellant’s
argument as directed to the underlying felony and dangerous acts as described in
Count One. See Walter, 581 S.W.3d at 970. The offense for which Appellant was
convicted, felony murder, is “an unintentional murder committed in the course of
committing a felony.” Rodriguez v. State, 454 S.W.3d 503, 507 (Tex. Crim. App.
2014) (quoting Fuentes v. State, 991 S.W.2d 267, 272 (Tex. Crim. App. 1999));
Lomax, 233 S.W.3d at 305. Measuring the sufficiency of the evidence against the
elements of this offense as defined by the hypothetically correct jury charge per
Morgan and Malik, we therefore review and discuss the contested elements of
Appellant’s felony murder conviction. See Morgan, 501 S.W.3d at 90; Malik, 953
S.W.2d at 240.
Appellant first argues that the evidence was insufficient to support his
conviction because Portillo and Staggs hindered the investigation of Araiza’s murder
by fleeing the scene, disposing of the bullet casing, and attempting to remove
Araiza’s blood from their vehicle. Appellant also argues that Portillo and Staggs
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alone benefitted from Araiza’s death because they obtained the drugs they wanted
without payment. On the other hand, Appellant argues that he did not benefit from
the murder because he never retrieved his drugs after Araiza was shot. Appellant
also contends that Staggs’ testimony was not credible because her story was
inconsistent regarding the way the drugs were given to her by Appellant. Although
Portillo and Staggs did testify to not only fleeing but disposing of evidence, these
admissions do not contradict the evidence that supports Appellant’s conviction. In
fact, there was testimony that Appellant did the same things: that Appellant fled the
scene at the time of the shooting and that he later fled from police while being
pursued after leaving the game room. Detective Rocha also testified that Portillo’s
identification of Appellant as the shooter was more consistent with the physical
evidence and the blood found inside the vehicle. Further, we assume that any
inconsistencies in the testimony given by Staggs or others was weighed by the jury
who made their own determinations about the credibility of conflicting evidence and
testimony and that the jury resolved such inconsistencies in favor of the verdict.
Jackson, 443 U.S. at 326; Brooks, 323 S.W.3d at 899; Clayton, 235 S.W.3d at 778.
Second, Appellant argues that he is a large individual and that a “reasonable
person” would have “to question how he could [have] quickly” accessed a firearm
while in the confines of the vehicle. Appellant argues that, under the circumstances
presented, a reasonable person would have concluded that Appellant could not
physically have been the one who shot Araiza. Further, Appellant was seen leaving
the vehicle while actually patting himself down as if checking for a personal injury,
which, according to Appellant, implies is consistent with a person other than himself
having discharged the firearm. But, neither Appellant’s inability to quickly access
his weapon nor that he was “checking himself for injury” by patting himself down
were testified to or discussed at trial. Further, Appellant did not explain, nor is it
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clear, why or how Appellant’s size would have prevented him from accessing a
firearm.
Third, Appellant contends that, because the medical examiner testified that
the gunshot that killed Araiza could have been fired from up to a foot away, Staggs’s
testimony that she saw Appellant put the gun directly to Araiza’s face is not
supported by the evidence. Again, although the medical examiner did so testify,
such testimony does not contradict the evidence supporting Appellant’s conviction.
Staggs testified that she saw Appellant put the gun up to Araiza’s face. To be
precise, the medical examiner testified that the shot could have been fired from up
to a foot away, stating, “that puts us within like a couple of inches to about a foot
away from [Araiza’s] skin at the time the gun was fired.” When pressed, the medical
examiner further stated:
Q. Okay. But in this particular case, because we have that soot
[deposited on Araiza’s face], we are within inches of her face from where that
barrel is to her eye, right, Doctor?
A. Yes.
Accordingly, there is expert and eyewitness testimony in the record that the gun was
fired from closer than a foot away. Based on this evidence, the jury could have
reasonably believed beyond a reasonable doubt that Appellant fired the fatal shot.
Finally, Appellant argues that Castillo testified that she had never seen him
with a gun. Although his roommate may not have seen Appellant with a gun, there
was testimony from Appellant’s acquaintance that, the day before the shooting,
Appellant was provided a nine-millimeter Smith and Wesson pistol. Texts messages
retrieved from Appellant’s cell phone also corroborate Appellant’s possession of a
gun.
While, at most, Appellant’s arguments on appeal identify some conflicting
evidence, the jury weighed the conflicting evidence and resolved those conflicts
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contrary to Appellant’s positions taken here and at trial. See Jackson, 443 U.S. at
326; Merritt, 368 S.W.3d at 525−26; Clayton, 235 S.W.3d at 778. The record
supports a reasonable belief that Appellant had been given a gun, and there was
eyewitness testimony that Appellant shot Araiza. Despite Appellant telling the
police that Staggs shot Araiza, Portillo’s testimony directly contradicted this claim
and implicated Appellant as the shooter. Following the shooting, Appellant
attempted to hide from the police. When questioned, Appellant lied to the police
and changed his story multiple times about his involvement in the shooting.
Appellant’s cell phone search history includes a search to locate criminal defense
attorneys and find ways to manipulate his cell phone GPS location technology
shortly after Araiza was killed. Viewing the evidence in the light most favorable to
the verdict, and presuming the jury resolved any conflicts in favor of that verdict,
we conclude that the evidence is sufficient to support the jury’s conviction. We
overrule Appellant’s sole issue.
Modification of Judgment
Although not raised by either party, we note that the trial court’s judgment
contains a clerical error. We have the authority to modify a judgment to correct a
clerical error when the evidence necessary to correct the judgment appears in the
record. See TEX. R. APP. P. 43.2(b); Arndt v. State, No. 11-20-00032-CR, 2021
WL 5934652, at *3 (Tex. App.—Eastland Dec. 16, 2021, pet. ref'd) (mem. op., not
designated for publication) (citing Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim.
App. 1993)). The judgment of conviction for Count One shows that the jury
convicted Appellant of the offense of murder, as found in Section 19.02(c). We
modify the judgment to reflect that the “Statute for Offense” for which Appellant
was convicted is “Texas Penal Code § 19.02(b)(3), (c).”
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This Court’s Ruling
As modified, we affirm the judgment of the trial court.
W. BRUCE WILLIAMS
JUSTICE
July 7, 2023
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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