Executed May 16, 2007 06:41 p.m. CST by Lethal Injection in Texas
19th murderer executed in U.S. in 2007
1076th murderer executed in U.S. since 1976
14th murderer executed in Texas in 2007
393rd murderer executed in Texas since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
Charles Edward Smith
W / M / 22 - 41
W / M / 61
Smith v. State, 907 S.W.2d 522 (Tex.Cr.App. 1995) (Direct Appeal).
Smith v. State, 74 S.W.3d 868 (Tex.Cr.App. 2002) (Direct Appeal).
Nine tacos, 9 enchiladas, French fries, 16 Pepsis, salad with ranch dressing, a bowl of picante sauce, beef fajitas, a bowl of shredded cheese, a strawberry cake with strawberry frosting and six jalapeno peppers.
Texas Department of Criminal Justice - Executed Offenders (Charles Smith)Inmate: Smith, Charles Edward
Texas Attorney General
Wednesday, May 9, 2007 - Media Advisory: Charles Smith Scheduled For Execution
AUSTIN – Texas Attorney General Greg Abbott offers the following information about Charles Edward Smith, who is scheduled to be executed after 6 p.m. Wednesday, May 16, 2007. Smith was convicted and sentenced to death for the murder of Pecos County deputy Sheriff Tim Hudson.
FACTS OF THE CRIME
In August 1988, while serving a sentence in a Kansas correctional facility for burglary, theft and aiding a felony, Charles Smith, along with his cousin Carroll Smith, escaped. At the time of the escape, Charles had approximately one month left to serve before he would have been eligible for parole. The two men stole a pickup truck and drove to Houston. While in Houston, they burglarized several homes and stole credit cards, jewelry, license plates, and a .357 magnum pistol and ammunition. They abandoned the stolen truck and replaced it with a stolen van and began driving west toward New Mexico.
On August 19, 1988, the two escapees stopped and pumped gasoline worth $22.50 into the van in Bakersfield, Texas, and drove away without paying. Pecos County deputy Sheriff Tim Hudson and other law enforcement officers responded to the reported theft.
Charles, who was driving the van, refused to stop when the officers tried to pull him over. When Hudson pulled alongside the van, Charles fired three shots into Hudson’s car, one of which fatally wounded Hudson. The evidence showed that Hudson did nothing to provoke the shooting; his firearm was still snapped in place and he was simply attempting to determine who was in the van.
After shooting Hudson, the two escapees abandoned the van and stole a truck tractor. When they approached a roadblock, they made a U-turn and a chase ensued. The two men were captured. Charles Smith made two videotaped confessions while in custody.
On August 24, 1988, Charles Smith was indicted by a Pecos County grand jury for capital murder in the death of deputy Sheriff Tim Hudson, and he was later convicted and sentenced to death. However, on December 4, 1991, the Texas Court of Criminal Appeals reversed his conviction. Smith was retried, convicted, and sentenced to death again in 1992. On September 20, 1995, the Texas Court of Criminal Appeals affirmed Smith’s conviction in but remanded the case for a new punishment hearing. Smith received the new hearing, and a jury sentenced him to death on November 17, 1999. Smith’s sentence was affirmed on appeal on May 8, 2002.
Smith filed a state application for writ of habeas corpus in the trial court on August 13, 2001. The trial court later entered findings of fact and conclusions of law recommending that Smith be denied relief. On October 22, 2003, the Texas Court of Criminal Appeals adopted the trial court’s findings and conclusions and denied Smith habeas relief.
On October 20, 2004, Smith filed a federal habeas petition in the a U.S. District Court. On September 16, 2005, the district court denied Smith’s petition. Smith appealed, but the 5th U.S. Circuit Court of Appeals affirmed the district court’s judgment on November 30, 2006. Smith petitioned the U.S. Supreme Court for certiorari review on February 23, 2007. The petition is currently pending before the Court
PRIOR CRIMINAL HISTORY AND EVIDENCE OF FUTURE DANGEROUSNESS
In 1987, Charles Smith pled guilty to felony burglary and felony theft, admitting that he and a companion, Jeff Miers, had broken into a house and stolen a rifle. Smith’s conviction for aiding a felon stemmed from his presence when Miers used that gun on January 22, 1987, to kill Martin Esquivel and wound his brother, Fernando Esquivel, in Garden City, Kansas. One witness testified that Smith urged Miers to commit the murder.
Sally Ann Ochoa, the probation officer who prepared the presentence investigation report for Smith’s conviction for aiding a felon (relating to Smith’s involvement in the Esquivel murder), testified that Smith did not express any remorse and seemed unconcerned. She concluded that Smith was not a suitable candidate for probation and recommended that he be sentenced to prison.
Norma Jean Jackson, a correctional officer in Kansas, testified that while Smith was incarcerated in the facility where she was employed, he violated the facility’s rules by shoving her as she stood in a doorway. Joyce Whitt, another correctional officer from Kansas, testified that Smith escaped from the Kansas facility when he had approximately a month left to serve before being eligible for parole, and that he could have faced two years in prison if he had been captured.
Mark Yates, who was incarcerated in a cell adjoining Smith’s cell in the Pecos County Jail, testified that Smith showed no remorse for the murder of Deputy Hudson and stated that he (Smith) had slept like a baby the first night in jail. Yates also testified that Smith told him that, by killing a police officer, he had fulfilled one of the goals of his life.
Cliff Harris, who supervised the jailers in Pecos County, testified about contraband found in Smith’s cell and in the maximum security area where he was housed. He testified that they had numerous problems with Smith: he set his blankets on fire once; he fought with other inmates; he had a very short temper and when he lost his temper, he tore things up; he intimidated other inmates and dominated the maximum security cellblock; and he was a danger to other inmates and the jailers. Sam Esparza testified that while he was assisting with visitation at the Pecos County Jail, he broke up a fight between Smith and another inmate. T.J. Perkins, another jailer at the Pecos County Jail, testified that Smith grabbed him through the bars and that he felt that his life was in danger. He also testified that he heard Smith singing a song: “I shot the sheriff, but in my case it was the deputy.”
Pecos County jailer Carol Barnett testified that a razor blade that had been removed from its plastic holder was taken from the sink in Smith’s cell. She also testified that after a strip search of the inmates and a shakedown of the maximum security cells, Smith got angry because his cell had been searched. He tore up light fixtures and a television set and threw the pieces through the bars at the deputies and then started a fire with a blanket. She testified that Smith was more aggressive than most of the other inmates.
Jailer Darlene Archer testified that she saw Smith hitting another inmate in the face with his fist; and that she heard Smith singing, in a cheery manner, “I shot the sheriff, but in my case I shot the deputy.” In her opinion, Smith had “no good points” and “no redeeming virtues.”
Pecos County Sheriff Bruce Wilson testified that he came to the jail the night Smith started the fire and heard Smith say that he was going to kill the first person through the door. Wilson testified that Smith was moody and one day could be docile and the next day “he can be a raging, crazy human being.” He testified that Smith is “very dangerous” and was the dominating force in the maximum security area of the Pecos County Jail.
Finally, several other witnesses testified that Smith had a bad reputation for being a peaceful and law-abiding citizen.
"Inmate Executed in Texas Deputy's Death," by Michael Graczyk. (May 17th, 2007)0
HUNTSVILLE, Texas -- A Kansas prison escapee was executed Wednesday for fatally shooting a sheriff's deputy who was trying to pull him over for stealing $22.50 worth of gasoline from a service station.
Charles Edward Smith did not make a final statement. He was pronounced dead at 6:41 p.m., 11 minutes after the lethal drugs began to flow. The execution had been delayed slightly because of difficulty finding veins for the needles carrying the drugs.
For a moment, Smith glanced through a window at friends and relatives of slain Pecos County Deputy Tim Hudson. "I'm glad he didn't say anything negative," said Hudson's daughter, Gwynn Hudson Simmons. "You wait on something 18 years that should have been done years ago, it's just the right thing to have happen."
Smith, 41, and a cousin, Carroll Smith, had fled from a minimum security prison in Kansas, five days before the Aug. 19, 1988, slaying of 61-year-old Hudson. Charles Smith had served about a year of a one- to five-year sentence for burglary, theft and aiding a felony.
After escaping, Charles Smith, a native of San Bernardino, Calif., and Carroll Smith, of Houston, stole a truck and headed for Texas. The pair got gasoline in West Texas and drove off without paying. When Hudson tried to pull them over, Charles Smith opened fire. The shooting prompted an extensive hunt across West Texas that ended with a police chase and shootout.
Smith's defense was that the slaying was unintentional. His cousin agreed to a life prison term and remains behind bars.
Smith was the 14th condemned killer to receive lethal injection this year in Texas, the nation's busiest capital punishment state.
Officer Down Memorial
Deputy Sheriff Tim Hudson
Pecos County Sheriff's Department
End of Watch: Saturday, August 20, 1988
Tour of Duty: Not available
Badge Number: Not available
Cause of Death: Gunfire
Date of Incident: Saturday, August 20, 1988
Weapon Used: Handgun; .357 caliber
Suspect Info: Executed in 2007
Deputy Hudson was shot and killed while pursuing two robbery suspects along I-10. One of the suspects shot him with a .357 caliber handgun as he attempted to pass the car. Both suspects were eventually apprehended. One of them was sentenced to death and the other was sentenced to life.
Gwynn Hudson Simmons
The suspect who was sentenced to death was executed on May 16, 2007. After 18 long years of heartache I finally received word that my Dad's murderer will be executed this year. I would like to thank all of the officers, their families and everyone involved in the capture, arrest and prosecution of this animal. Charles Edward Smith shot and killed Tim Hudson 9 months before he was planning to retire.
A decorated WWI Marine veteran who served and was wounded overseas, Tim Hudson devoted his life to the safety and welfare of others. I was a young woman of 28 with 2 small children at the time of this murder and our entire family's life was horribly altered forever. My son went on to become a Marine (he was 7 yrs old at the time of the murder) and both he and my wonderful 22 year old daughter grew up without him in their lives. Anyone who knew Tim knew the kind of man that he was and I'm sure he would want to thank all of the officers that were involved in this also. I will be at the execution without a doubt and considering the murderer Charles Edward Smith has bragged about killing a cop since the day it happened, I will have no problem with justice being finally served for my Dad. It will not be a happy occasion for either family but this does uphold the message that we DO NOT tolerate cop killers in Texas. Now all we have to do is change laws the require us to feed and house and educate these criminals for 18 years before justice is served.
"Texas executes man for 1988 killing of dep. sheriff." (Wed May 16, 2007 8:59PM EDT)
DALLAS (Reuters) - Texas executed a man by lethal injection on Wednesday for the 1988 murder of a deputy sheriff who had tried to pull him over when he was driving a stolen van. Charles Edward Smith, 41, was sentenced to die for killing deputy sheriff Tim Hudson.
Hudson tried to stop Smith, who had escaped from a minimum-security prison in Kansas, when Smith was driving a stolen van and Smith responded by firing three shots into Hudson's car, fatally wounding him, according to prosecutors and media reports.
Smith was the 14th inmate put to death in Texas so far this year and the 393rd since the state resumed executions in 1982. Texas leads all U.S. states in executions, reflecting its conservative political outlook and high rates of violent crime.
Smith made no final statement. For his last meal he requested nine tacos, nine enchiladas, French fries, 16 Pepsis, salad with ranch dressing, a bowl of picante sauce, beef fajitas, a bowl of shredded cheese, a strawberry cake with strawberry frosting and six jalapeno peppers.
Texas has scheduled 12 more executions this year.
"Kansas prison escapee executed for killing Texas deputy," by Michael Graczyk. (Associated Press May 17, 2007, 1:39AM)
HUNTSVILLE, Texas — Almost two decades after he and a cousin escaped from a Kansas prison and fled to Texas where they committed a string of thefts and burglaries, Charles Edward Smith was executed for gunning down a West Texas sheriff's deputy who tried to pull them over for not paying for a tank of gas.
Smith, 41, replied with a curt "No, sir," when asked by the warden if he had a final statement from the death chamber gurney before the lethal drugs were administered. Eleven minutes later, at 6:41 p.m. CDT, he was pronounced dead, making him the 14th inmate executed this year in the nation's most active capital punishment state.
The U.S. Supreme Court refused Monday to review his case and no subsequent appeals were filed to try to halt the lethal injection. "He won't kill anyone else. We can guarantee that 100 percent," Gwynn Hudson Simmons said after watching Smith die. Simmons' father, Tim Hudson, was the Pecos County sheriff's deputy fatally wounded by Smith in August 1988. "When you have somebody who showed no remorse and actually bragged about killing a police officer, ... what can be said? I had no desire to talk to him and I don't think there was anything he could have said to me to make any difference."
Smith and a cousin, Carroll Smith, had fled from a minimum-security prison in Shawnee County, Kan., five days before the slaying. Charles Smith had served about a year of a one- to five-year sentence for burglary, theft and aiding a felony. His cousin was serving seven to 25 years for burglary, theft and criminal damage to property.
Charles Smith, a native of San Bernardino, Calif., and Carroll Smith, from Houston, reached Houston in a stolen truck and broke into several houses, stealing money, credit cards and other items, including the .357-caliber Magnum pistol evidence showed was the weapon used to kill Hudson.
They replaced their truck with a stolen van, got $22.50 worth of gas in Bakersfield in West Texas and drove off without paying. When Hudson tried to pull them over about 30 minutes later on Interstate 10 near Fort Stockton, Charles Smith opened fire. One of the shots went through Hudson's arm and into the deputy's chest, fatally wounding him.
Evidence showed Hudson, a career lawman nearing retirement, apparently didn't know the men in the van were escapees. He never drew his gun and had just radioed the license plate number to a dispatcher. The shooting prompted an extensive hunt for the deputy's killers across West Texas that ended with a wild police chase and shootout.
Smith was convicted of capital murder and sentenced to death. In 1992, his conviction was thrown out by the Texas Court of Criminal Appeals, which ruled the trial judge improperly denied a challenge from Smith's lawyer during jury selection. In 1995, the same appeals court threw out a second death sentence for improper jury instructions. Four years later, he was sentenced to die a third time.
He declined from death row to speak with reporters in the weeks preceding his scheduled execution. "He got good hearings over the years and escaped execution," J.K. Wall, Charles Smith's appeals lawyer, said Wednesday. "He's had some appellate success but unfortunately he just run out of issues."
Smith's original Kansas conviction stemmed from a burglary where he and a companion stole a rifle that was used in a killing in Garden City, Kan.
Jailers from Pecos County testified at his trial they remembered Smith for singing the 1970s Eric Clapton rock song "I Shot the Sheriff" and amending the words to say, "But in my case it was the deputy." He told a fellow jail inmate the cop killing fulfilled a lifetime goal.
His cousin agreed to a life prison term and remains behind bars. At least a dozen other condemned inmates have execution dates in Texas in the coming months, five of them in June.
Dallas Morning News
"Man executed in deputy's death; Kansas prison escapee shot Texas officer after being stopped in '88." (12:00 AM CDT on Thursday, May 17, 2007)
HUNTSVILLE, Texas – Kansas prison escapee Charles Edward Smith was executed Wednesday evening for the fatal shooting of a sheriff's deputy who was trying to pull him over for stealing $22.50 worth of gasoline from a service station. Asked if he had a final statement, Mr. Smith replied, "No, sir."
He was pronounced dead at 6:41 p.m., 11 minutes after the lethal drugs began to flow. The execution had been delayed slightly because of difficulty finding veins for the needles carrying the drugs.
He never looked at a window a few feet away, behind which were friends and relatives of the slain deputy, Tim Hudson, 61.
Mr. Smith, 41, was the 14th condemned killer to receive lethal injection this year in Texas. The U.S. Supreme Court on Monday refused to review his case.
Mr. Smith and a cousin, Carroll Smith, had fled from a minimum-security prison in Shawnee County, Kan., five days before the Aug. 19, 1988, slaying of Deputy Hudson in Pecos County. Charles Smith had served about a year of a one- to five-year sentence for burglary, theft and aiding a felony. His cousin was serving seven to 25 years for burglary, theft and criminal damage to property.
After escaping, Charles Smith, a native of San Bernardino, Calif., and Carroll Smith, from Houston, stole a truck and headed for Texas. They reached Houston and broke into several houses, stealing money, credit cards and other items, including the .357-caliber Magnum pistol that evidence showed was the weapon used to kill Deputy Hudson, who had planned to retire in about nine months.
The pair, who replaced the truck stolen with a stolen van, got gas in Bakersfield in West Texas and left without paying. When Deputy Hudson tried to pull them over about 30 minutes later on Interstate 10 near Fort Stockton, Charles Smith opened fire. One of the shots went through Deputy Hudson's arm and into his chest.
Pecos County Enterprise
"Third jury gives death penalty in deputy's slaying." (November 22, 1999)
FORT STOCKTON (AP) - A West Texas jury decided last week that a thrice-convicted cop killer should die for his crimes - the suspect's third death sentence in 10 years. The 12-member panel deliberated for less than three hours before deciding Charles Edward Smith should die by lethal injection for the 1988 shooting death of a Pecos County lawman.
Smith, from Kansas, showed no reaction Thursday as District Judge Brock Jones read his order to place Smith on death row. Defense attorney Martin Underwood said he planned to appeal the sentence. "We're in the appellate mode once again, which is nothing new to us," Underwood told the Odessa American.
The Texas Court of Criminal Appeals has already overturned Smith's two previous death sentences. After Thursday's punishment was handed down, Underwood said he would file another appeal with the higher court in "a couple months." The family of slain officer Tim Hudson shouted with joy and clapped when Jones read the verdict.
Hudson's daughter, Gwen Hudson-Simmons, said she was eager to see Smith die for the murder. "This has gone on long enough. I hope for a speedy execution," she told the newspaper.
According to testimony and court records, Smith and his cousin escaped from a minimum-security prison in Kansas in August 1988. Then they stole a car and drove to South Texas. Once in Houston, they stole a handgun, license plates, credit cards and a van.
Texas Execution Information Center by David Carson.
Charles Edward Smith, 41, was executed by lethal injection on 16 May 2007 in Huntsville, Texas for murdering a sheriff's deputy while fleeing from a robbery.
On 14 August 1988, Smith, then 22, and his cousin, Carroll Smith, 31, escaped from a Kansas correctional facility. They stole a pickup truck and drove to Houston, where Carroll had once lived. While in Houston, they burglarized several homes and stole credit cards, jewelry, license plates, and a .357 magnum pistol. They abandoned the stolen truck, stole a van, and began driving west on Interstate 10.
On 19 August, the pair stopped at a gas station in Bakersfield, about 35 miles east of Fort Stockton. They put $22.50 worth of gasoline into the van, then drove off. The gas station operator called the Pecos County Sheriff's Department. Deputy Tim Hudson, 61, found the men driving on I-10 west of Fort Stockton and turned his flashing lights on, but the van didn't stop. Hudson then pulled alongside the van to look inside it. Charles Smith then fired a .357 Magnum three times into his patrol car. One of the shots struck Hudson in the side, killing him.
The suspects then abandoned the van in Coyanosa, about 20 miles north of I-10, and stole a truck tractor from a residence. With the aid of a U.S. Customs helicopter, they were found north of Coyanosa. When they got to a roadblock, they made a U-turn, and a chase ensued. The cousins were captured after a running gun battle. Carroll Smith was wounded in the left arm during the chase.
Charles Smith confessed to the crime upon his arrest. Evidence presented at his trial showed that Deputy Hudson's sidearm was holstered and latched and his window was rolled up.
Mark Yates, who was incarcerated in a cell adjoining Charles Smith's in the Pecos County Jail, testified at Smith's punishment hearing that Smith told him that by killing a police officer, he had fulfilled one of the goals of his life. Jail personnel testified that Smith set a fire in his cell, tore up light fixtures and a television set and threw the pieces at the deputies, fought with another inmate, and assaulted a jailer, grabbing him through the bars of his cell. At least two jail personnel testified that they heard Smith singing "I shot the sheriff, but in my case it was the deputy," a variation on a hit song recorded by Eric Clapton.
Charles Smith had prior convictions in Kansas for burglary, theft, and aiding a felon. He and a companion, Jeff Miers, broke into a house and stole a rife. Miers then used the stolen gun to kill Martin Esquivel after Esquivel confronted Miers and Smith for stalking and harassing his sister. Testimony showed that Smith urged Miers to kill Esquivel. He was sentenced in August 1987 to one to five years in prison. If he had not escaped, he would have been eligible for parole after serving another month.
A jury convicted Smith of capital murder in August 1989 and sentenced him to death. In December 1991, the Texas Court of Criminal Appeals found that the trial court refused a valid request from the defense to strike a juror, and vacated his conviction. He was convicted and sentenced to death in a new trial in 1992. This time, the TCCA affirmed the conviction, but vacated the death sentence in September 1995 because the jury wasn't instructed to consider whether Smith killed Deputy Hudson deliberately. Smith received a new sentencing hearing and was sentenced to death for the third time in November 1999. The TCCA affirmed that death sentence in May 2002. All of Smith's subsequent appeals in state and federal court were denied.
Carroll Bernard Smith was convicted of murder with a deadly weapon and was sentenced to life in prison. He remains in state custody as of this writing.
Charles Smith declined to be interviewed by reporters while on death row.
Smith's execution was delayed for a few minutes because of difficulty in finding a vein for the injection. When the warden asked if he had a final statement, he replied, "No sir." The lethal injection was then started. He was pronounced dead at 6:41 p.m.
In August 1987, Charles Smith was sentenced to 1-5 years in prison for a burglary in Kansas. He escaped from custody on August 14, 1988. Less than a week later, he murdered Pecos Country Deputy Sheriff Tim Hudson.
Hudson was less than nine months shy of his retirement when he was sent out on a call that two men had stolen $22 worth of gas from a service station near Bakersfield. Around midnight, Hudson attempted to pull over a van that matched the description of the vehicle. Unbeknownst to Hudson, the stolen van carried two escapees from Kansas, Charles Edward Smith and his cousin Carroll Bernard Smith. The pair had escaped from a work-release center a week earlier, and had stolen the van along with a .357 magnum revolver in Houston and were headed for New Mexico. As Hudson tried to pass the van on the left, Charles Smith fired three shots into the car. One of the shot struck Tim Hudson in the side, killing him.
Gwynn Hudson-Simmons, Tim's daughter said, “My dad’s last radio transmission was running the plates,” she said. “He just thought it was a gas thief. He never knew they were escaped convicts. He lived for about 90 seconds after he was shot, and we are thankful that he didn’t suffer.”
The criminals stopped in a small town and set the van on fire and then stole a tractor-trailer truck. A U.S. Customs helicopter and multiple law enforcement agency vehicles chased the pair, who engaged in a gunfight as they tried to get away.
During an interview published on thebackgate.com, Hudson's daughter said, “I will never forget that Saturday morning. I heard a knock on the door and I thought ‘Why doesn’t dad just come on in?’ But, when I got to the door, it was the sheriff and my yard was filled with officers.” Hudson-Simmons was 28 with two small children at the time of her father’s death. Tim Hudson was a 30-year veteran of law enforcement working in several West Texas counties and cities, including Seminole, Midland, Stanton, Monahans and Hobbs, N.M. He also was a U.S. Marine veteran who served during World War II. Smith has stood trial for Hudson's murder on three separate occasions.
A year after the murder, Smith was found guilty by a jury that needed only 25 minutes to deliberate. He was sentenced to death the following week. However, this conviction was overturned by the Texas Court of Criminal appeals in December of 1991. After finding that one of the jurors in the original trial had a cousin who was a police officer, the conviction was overturned and the case was sent back for a retrial.
A second trial was held in 1994 with the same outcome; a guilty verdict and a second death sentence. The same appeals court reserved the conviction again, deciding that an error in the jury instructions could have affected the outcome of the case.
A third jury heard the case in November of 1999 and Smith was again found guilty and sentenced to death.
Gwynn Hudson-Simmons plans to witness Smith's execution. “This is not a happy occasion for anyone. I have prayed for this man and his family for 18 years,” she said. “I was against the death penalty, but it’s different when someone in your family is killed like this, and their killer doesn’t show any remorse.”
Hudson-Simmons said she and her children, James and Julie, miss the man who they called father and grandfather. “He truly loved what he did and the fact that he could make a difference in people’s lives,” she said. “My son went on to become a Marine and is now married and both he and my daughter grew up without him in their lives.” Mexia Police Detective Javier Ybarra also will attend the May execution. Hudson impacted his life as a teenager. “When he was a teenager, my dad caught him breaking into a store in Fort Stockton,” Hudson-Simmons said. “Instead of taking him in and putting him in juvenile detention, he gave him the talking to of his life and made him ride in the county car for two weeks. He told me if it hadn’t been for my dad, he might be in prison. This guy had a rough childhood, too, but he didn’t go out and kill cops, he became one.”
Many of Hudson’s friends and even his wife, Vera, are now deceased, but his daughter says there is no denying that he was full of life and taken too quickly. “Anyone who knew him knew the kind of man he was, and I'm sure he would want to thank all of the officers that were involved in this also,” she said. “He devoted his life to the safety and welfare of others.”
National Coalition to Abolish the Death Penalty
Charles Smith, May 16, TX
Do Not Execute Charles Smith!
Texas is set to execute Charles Smith on May 16 for the August 1988 murder of Tim Hudson.
The state of Texas should not execute Charles Smith for his role in this crime. Executing Smith would violate the right to life as declared in the Universal Declaration of Human Rights and would constitute the ultimate cruel, inhuman and degrading punishment.
Please write to Gov. Rick Perry on behalf of Charles Smith!
Smith v. State, 907 S.W.2d 522 (Tex.Cr.App. 1995) (Direct Appeal).
Defendant was convicted in the 112th District Court, Pecos County, Brock Jones, J., of capital murder of a law enforcement officer and sentenced to death. He appealed. The Court of Criminal Appeals, McCormick, P.J., held that: (1) grand jury adjourned for more than three days with consent of court; (2) defendant was not denied due course of law because of comments by venireperson who was peremptorily struck by prosecution; (3) trial court did not abuse its discretion in granting state's challenge for cause of veniremember who opposed death penalty; (4) trial court properly granted state's challenge for cause of jury veniremember who admitted negative feelings about a prosecutor in a different case; (5) it was within trial court's discretion to overrule defendant's challenge for cause of prospective juror who indicated predisposition to give greater credibility to a Texas Ranger by virtue of that status; (6) defendant inadequately briefed various points of error; (7) judge's instruction to jury to disregard allegedly improper comments by prosecutor to defendant was sufficient to cure any asserted harm; (8) state did not commit prosecutorial misconduct by acting out the part of police officer whose testimony it read into the record; (9) defendant was not denied his right of confrontation when court sustained objection to defense counsel's use of the word “beating” in cross-examining police officer about his conduct toward defendant; and (10) trial court lacked authority to sentence defendant to death after omitting mandatory questions to jury. Judgment affirmed; sentence vacated; and remanded. Clinton, J., filed a concurring opinion.
McCORMICK, Presiding Judge.
Upon retrial FN1, appellant, Charles Edward Smith, was convicted of the August 1988 capital murder of a law enforcement officer. V.T.C.A., Penal Code, Section 19.03(a)(1). During the punishment phase the jury affirmatively answered the special issues set forth in Article 37.071(b), V.A.C.C.P. The trial judge sentenced appellant to death as required by Article 37.071(e), V.A.C.C.P. Direct appeal is automatic. Article 37.071(h), V.A.C.C.P. We affirm appellant's conviction, but vacate and remand his sentence for further proceedings in accordance with Article 44.29(c), V.A.C.C.P.
FN1. Appellant was originally convicted for the same offense and sentenced to death in August 1989. This Court reversed the conviction in an unpublished opinion. Smith v. State, No. 71,010 (Tex.Cr.App., December 4, 1991).
Appellant does not challenge the sufficiency of the evidence, therefore we will dispense with a recitation of the facts. Appellant raises thirty-two points of error. We will address the points as they approximately occurred at trial.
Appellant alleges in point of error twenty-one that the trial court erred in overruling his motion to quash the indictment because “the grand jury which indicted [him] had adjourned for more than three days without the consent of the court in violation of the mandatory terms of Article 20.08 of the Texas Code of Criminal Procedure.”
Article 20.08 provides: “The grand jury shall meet and adjourn at times agreed upon by a majority of the body; but they shall not adjourn, at any one time, for more than three days, unless by consent of the court. With the consent of the court, they may adjourn for a longer time, and shall as near as may be, conform their adjournments to those of the court.”
In a pretrial hearing, the judge who impaneled the grand jury testified as to his uniform policy: “It is my policy, and I have each and every time that I have impaneled a Grand Jury in the 112th District Court for at least two years, and probably three years given the following instructions to each and every Grand Jury: I have instructed the Grand Jury that as a housekeeping matter, I need to inform them that the law does not allow them to recess for more than three days without consent of the Court, and that I hereby give the Grand Jury permission to convene upon proper instruction to carry out the business that is prepared and to be presented, and then to recess at the conclusion of that business for a period of time of more than three days to be reconvened on proper summons to consider further business.”
We read this instruction to give the grand jury precisely the consent required under Article 20.08 for it to recess for a period of more than three days. FN3 The State concedes that the requirements of Article 20.08 are mandatory, but disagrees that they were not met. In Miller v. State, 537 S.W.2d 725 (Tex.Cr.App.1976), we held that Article 20.08 requires only the court's consent to adjourn for more than three days and no formal order is required. Given nothing to indicate that this was not done in the instant case, we cannot say that the trial court erred in overruling the motion to quash the indictment. Point of error twenty-one is overruled.
In his twenty-second point of error, appellant alleges that he was denied due course of law under Article I, Section 19 of the Texas Constitution in that “[t]he State so distorted the lawful course of the whole voir dire by showing through the first prospective juror, [name omitted], that the price of honesty would be subject to practically unrestrained attack by the prosecutor.”
However, the venireperson did not receive this instruction until after the court had recessed on at least one occasion. Appellant alleges, without citation to any part of the record, that this resulted in the venireperson communicating to the other prospective jurors “a scenario of a bullying prosecutor dominating the courtroom and creating an experience of harassment and intimidation[.]” Consequently, appellant further asserts, again without citation to the record, this created a “chilling effect on the voir dire of the other prospective jurors, including the twelve jurors who were actually selected to serve.”
Assuming, arguendo, that error occurred in these proceedings, we look to whether that error contributed to the conviction or to punishment. Tex.R.App.Proc. 81(b)(2). If we determine beyond a reasonable doubt that the error did not so contribute, then no reversal is required. Id.
Appellant simply asserts that the harm that allegedly occurred cannot be meaningfully measured. He references no part of the record where he or anyone attempted to question other venirepersons as to any negative feelings they may have formed from anything they heard about the process. He merely speculates that some of the remaining prospective jurors may have decided “to give safe, as opposed to honest, answers in their own examination because of [this venireperson's] experience[,]” without asking them or otherwise trying to determine any ill effects.
The record, on the other hand, reveals the following: first, voir dire was conducted individually FN4 so no other prospective jurors observed the exchanges first-hand; second, while we cannot ascertain exactly how many other venirepersons were privy to the veniremember's remarks, the first person to actually be selected as a juror was not chosen until some seven veniremembers later, far more than the trial court could expect to question in one day; and most importantly, third, the only remarks this venireperson made to the veniremembers present in the jury room on that particular day, contrary to appellant's assertions, were brief and essentially neutral in character. The following colloquy, which occurred on the trial court's calling time for a break, embraces the entire gist of the remarks:
FN4. This aspect is not in dispute.
“THE COURT: Just step down and walk around and when-before you come back in, in case we are into something that we ought not be doing in your presence, would you just go back in the jury room. And, please, don't warn any of those other jurors what they are about to get into. It would be improper for you to talk to them at all. “[THE VENIREMEMBER:] I already did. “THE COURT: About what we are doing in here? “[THE VENIREMEMBER:] I already did. “THE COURT: What did you tell them? “[THE VENIREMEMBER:] I just told them, ‘Get ready.’ “THE COURT: That's all right. No problem. Nothing specifically about the questions? “[THE VENIREMEMBER:] Yes. I said you have to make a decision on capital murder on the death penalty or not. And I said you had better be able to tell them why and why not. “THE COURT: All right.”
We cannot say that basically telling someone that they are about to be subjected to questions on a particular topic and that they will have to justify their position (or lack thereof) would necessarily result in a “chilling effect.” We can say that the comments we discern were made did not contribute to the conviction or to punishment. The fact that most likely not even one person who subsequently sat on the jury heard even these neutral remarks further reinforces this holding. Point of error twenty-two is overruled.
In points twenty-three and twenty-five, appellant alleges that the trial court erred in granting the State's challenges for cause of venirepersons T. Brewer and R. Dominguez.
The challenge to Brewer came because of his expressed opposition to the death penalty. When reviewing such challenges, this Court has consistently followed the rule of Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985), that a venireperson's views on capital punishment support exclusion for cause only when they are such that they would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Vuong v. State, 830 S.W.2d 929, 942 (Tex.Cr.App.), cert. denied, 506 U.S. 997, 113 S.Ct. 595, 121 L.Ed.2d 533 (1992), Moody v. State, 827 S.W.2d 875, 888 (Tex.Cr.App.), cert. denied, 506 U.S. 839, 113 S.Ct. 119, 121 L.Ed.2d 75 (1992), Ellis v. State, 726 S.W.2d 39, 44 (Tex.Cr.App.1986), cert. denied, 480 U.S. 926, 107 S.Ct. 1388, 94 L.Ed.2d 702 (1987).
The record reveals the following sequence of events and pertinent exchanges. After the State explained the procedures of trial and the jury's job of answering questions as opposed to assessing punishment, the following colloquy ensued:
“[THE STATE:] In your response to question 55 you say that you do not believe there should be a death penalty. * * * * * * “Tell me about that. “[VENIREMEMBER:] Well, I don't think that the State has a right or anybody has a right to take another person's life because they have taken a life. If you have a choice, you don't. And I think that in capital murder, in any punishment, the State has a choice. And, therefore, I do think that if a person is dangerous to society, you remove them from society so they don't have any contact anymore for the rest of their life, but I don't think that you have the right on the basis of expedience or revenge or some other motive to take that life. * * * * * * “[THE STATE:] Can you think of a situation, ..., where someone might be deserving of the death penalty? “[VENIREMEMBER:] No. I thought about that a lot, you know, some of the really terrible things you have seen on television, some of the terrible things people have done, it makes you very angry. “[THE STATE:] Give me some examples of the ones that makes [sic] you angry. “[VENIREMEMBER:] Oh, someone who kidnapped a child and-over a series of many months abuses, sexually abuses, physically abuses, that child to the point of-and then finally kills them. You know, that's a very heinous crime to me, especially having children, but what-the second thought I have about that is that it's [sic] my motivation is revenge and that's not an acceptable motivation. And so it's always-first impulse may be in anger, but the second I always-second impulses always, you know, what's the motivation. And if it's revenge, then I don't think that's an acceptable motivation. * * * * * * “[THE STATE:] And in that situation [that you've just described] you don't believe that the death penalty would be an adequate form of punishment? “[VENIREMEMBER:] No. I think that the only acceptable form of punishment to me would be life in prison.”
Then the State explains and develops the individual punishment questions when the following transpires: “[VENIREMEMBER:] See, I think I could say, ‘Yes,’ to the first one to say somebody is going to be a continuing harm to society and needs to be removed from the general public, but the second thing I would say that to me the mitigating circumstance is life and not taking it. And so whatever the characteristics of the person, to me, I would rather as a taxpayer pay for their continued incarceration. “THE COURT: Is there any set of circumstances you can imagine if you were a juror knowing that we have the death penalty that you could answer that second question, ‘No’? “[VENIREMEMBER:] I don't think so. * * * * * * “[THE STATE:] So assume, for example, that back in our little scenario that you hear nothing, nothing mitigating about that defendant in that case, nothing, he has never done a good thing in his life, would you answer that question, ‘Yes,’ knowing that a ‘Yes' answer would avoid the death penalty? “[VENIREMEMBER:] Yes. “[THE STATE:] Is that based on strictly your personal views? “[VENIREMEMBER:] Mitigating circumstances is the nature of life. “[THE STATE:] Can you think-can you envision any case at all, any scenario, where the death penalty would be appropriate to you? “[VENIREMEMBER:] No, because it's up to the State to sufficiently isolate that person so he can't do any more harm. They have control of him already.” After this, appellant tried to rehabilitate the venireperson. “[APPELLANT:] So getting it right down to the-what I perceive as the real issue here, if you were on the jury and you heard the evidence, and the nature of the evidence was such that the honest answer to those issues that you are required to answer would cause the death penalty to be imposed, would you then give a dishonest answer just to keep the death penalty from being imposed? “[VENIREMEMBER:] No. I don't think it's a dishonest answer. In the way that I read the questions in talking about the mitigating circumstance, I mean, there are mitigating circumstances outside the nature of the individual involved.” When the State then challenged the venireperson for cause, the trial judge asked for some clarification. “THE COURT: Well, I'm sorry. I have-I just am a little bit unclear. You indicated in a response to [appellant's] question that you would not distort an answer on the mitigation question or make a dishonest answer, isn't that correct? “[VENIREMEMBER:] Yeah. I would not make a dishonest answer. “THE COURT: Does that mean that you can imagine a situation wherein you would answer that question in such a way that it would result in the death penalty? “[VENIREMEMBER:] The way I understand that question is, are there any mitigating circumstances. “THE COURT: Yes. “[VENIREMEMBER:] And, to me, there are always mitigating circumstances in the nature of life. And so I could honest-I can't imagine a situation in which I would say that there aren't any mitigating circumstances.”
By the veniremember's definition, he would be following the law and his oath, even if always answering the mitigation issue in the affirmative, thereby mandating the trial court to assess a life sentence. However, the United States Supreme Court addressed a similar situation and found that jurors “whether they be unalterably in favor of or opposed to the death penalty in every case-by definition are ones who cannot perform their duties in accordance with the law, their protestations notwithstanding.” Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992); Staley v. State, 887 S.W.2d 885 (Tex.Cr.App.1994). This is just such a juror. The trial court did not abuse its discretion in granting the State's challenge for cause. Point of error twenty-three is overruled.
In point twenty-five, appellant complains that the trial court erred in granting the State's challenge to Ricardo Dominguez under Article 35.16(a)(9), V.A.C.C.P. Appellant basically alleges: 1) that the State did not show sufficient bias to sustain a challenge for cause, and 2) that a bias against the State does not qualify as a bias in favor of the defendant and that only the latter is allowed under the Code, not the former. The latter contention is without merit. As the Amarillo Court of Appeals stated in Ransom v. State, 630 S.W.2d 904, 908 (Tex.App.-Amarillo 1982):
“The obvious purpose of the provisions is to guarantee fair and impartial jurors for both the State and the defendant. When a juror expresses an inability to be fair and impartial to the State, that juror is expressing a bias for the defendant and is properly excused.” See also Holland v. State, 761 S.W.2d 307, 317 (Tex.Cr.App.1988), cert. denied, 489 U.S. 1091, 109 S.Ct. 1560, 103 L.Ed.2d 863 (1989); McCary v. State, 477 S.W.2d 624, 628 (Tex.Cr.App.1972). However, the question remains whether an actual, sufficient bias existed. For this, we must look at the totality of the voir dire.
According to Webster's Ninth New Collegiate Dictionary (1991), to “equivocate” means to “avoid committing oneself in what one says” and this Court has said on numerous occasions that it is properly within the judge's discretion to grant a challenge for cause to an equivocating juror. Zimmerman v. State, 860 S.W.2d 89, 96 (Tex.Cr.App.1993), vacated on other grounds, 510 U.S. 938, 114 S.Ct. 374, 126 L.Ed.2d 324 (1993). At one point in the voir dire, the State was asking about an in-law's conviction. The State then attempted to explore whether the veniremember harbored any bias or ill will toward the State pursuant to this incident that might taint its case. The gist of the responses during the entirety of Dominquez' approximate 17 pages of voir dire can be seen in the following:
“[THE STATE:] How does that make you feel about [the prosecutor]? “[VENIREMEMBER:] I don't know what to tell you. “[THE STATE:] Just give me your real feelings.... Whatever your true feelings are is what I want to know. “[VENIREMEMBER:] I guess not very good. “[THE STATE:] Okay. If he was a prosecutor in this case, do you think you might hold that against him in the presentation of his case ...? “[VENIREMEMBER:] Well, I guess. I got some mixed feelings there, you know. I guess I would have some kind of feelings. * * * * * * “THE COURT: My feeling is-what I understand from what I'm hearing there is, you have negative feelings about [the prosecutor], is that right? “[VENIREMEMBER:] I guess, yeah.” Finally, the following occurred: “THE COURT: Now, in that criminal case the prosecutor is [name omitted], will your feelings about him influence or affect your verdict to any degree? “[VENIREMEMBER:] I don't guess it would. I don't guess it would. “THE COURT: You could set it aside? “[VENIREMEMBER:] I think I could. “THE COURT: Pass the juror. “[THE STATE:] Do you think you could? “[VENIREMEMBER:] I think I could. I think I could. “[THE STATE:] Okay. Pass the juror.”
Whether the defense then misunderstood whether or not he could ask questions or whether he just passed the veniremember without attempting to is unclear. Suffice it to say that the veniremember never gave an answer less equivocal than “I think ...” or “I guess....” In Williams v. State, 565 S.W.2d 63 (Tex.Cr.App.1978), a prospective juror was erroneously not excused where he admitted a prejudice against the accused, even though he stated he could disregard his prior association with the accused and base his decision on the evidence and the court's charge. While a trial court may hold a juror qualified who states that he can lay aside an opinion he may have formed, no such discretion vests in the court with reference to a juror with a bias or prejudice against the parties. Gonzalez v. State, 169 Tex.Crim. 49, 331 S.W.2d 748 (1960).
When the feeling expressed by a prospective juror is one of bias or prejudice in favor of or against the defendant (as opposed to a bias or prejudice against the law), it is not ordinarily deemed possible for such a juror to be qualified by stating that he can lay aside such prejudice or bias. Williams, supra, at 65; Mize v. State, 754 S.W.2d 732 (Tex.App.-Corpus Christi 1988); and Burton v. State, 805 S.W.2d 564 (Tex.App.-Dallas 1991). Point of error number twenty-five is overruled.
In the related point twenty-four, appellant avers that the trial court erred when it denied appellant's challenge for cause against venireperson Ted White. Specifically, appellant contends that White was properly challengeable for cause because he was predisposed to give greater credibility to the testimony of a Texas Ranger resulting in a bias against appellant.FN5 Article 35.16(a)(9), supra.FN6
FN5. We note this is in direct contradiction to appellant's point of error twenty-five and in support of our holding: a bias for the State is, in effect, a bias against appellant.
FN6. Appellant professes to have preserved his point of error for our review by 1) utilizing all of his peremptory strikes, 2) requesting and being denied additional strikes, and 3) having to accept an objectionable juror he otherwise would have struck. However, appellant is mistaken. The venireperson appellant alleges was objectionable (Gomez) was selected as an alternate. Under Article 35.15(d), V.A.C.C.P., strikes for alternates and strikes for the main jury are totally separate and may not be used in lieu of each other. Therefore, appellant's objection to Gomez only applies in the alternate juror context.
Furthermore, the record reveals the sequence of events was as follows: (1) appellant used his 11th peremptory strike and the court, sua sponte, granted him an additional peremptory; (2) appellant subsequently used his 12th and 13th strikes; (3) appellant challenged one Cynthia Hokit for cause, which challenge was denied, so appellant used his 14th peremptory strike. (4) After a recess, the court reconsidered and granted the challenge for cause at which time appellant withdrew the use of his peremptory strike (an action in which the court agreed), thus restoring his 14th strike. (5) Appellant subsequently reused that 14th and later, his 15th. (6) When the 12th juror was seated, appellant objected to this juror, claimed that he was out of peremptory challenges, asked for and was denied more peremptory challenges.
Had appellant truly been out of peremptory challenges, this last step would have been the preserving step. However, the record clearly indicates that he still had the extra strike that had been granted much earlier. But, apparently no one was keeping sufficient track of the peremptories to point this out. Hence, the point of error is technically not preserved since appellant had not actually run out of peremptories. However, because the State does not argue preservation, we will address the merits of the point.
In his argument, appellant relies almost exclusively on Hernandez v. State, 563 S.W.2d 947 (Tex.Cr.App.1978). In that case, the prospective juror stated a belief that a police officer would not tell a lie in any case. Hence, that person was biased as a matter of law in that she was effectively prevented from impartially judging the credibility of the witnesses. Thus, the venireperson was properly challengeable. However, in this case, White was not professing that a Texas Ranger would always be believable simply by virtue of his position. Rather, he stated that while he might tend to believe people in certain professions over some other people he would still listen to both sides and make up his mind depending on the facts and circumstances presented. In fact, the venireperson specifically stated at one point that he believes law enforcement officers can lie.
Given the totality of the voir dire, we hold the situation to be easily distinguishable from Hernandez, supra. The record before us fails to establish a bias as a matter of law. Anderson v. State, 633 S.W.2d 851 (Tex.Cr.App.1982). Thus, it was within the trial judge's discretion to overrule the challenge for cause. See Montoya v. State, 810 S.W.2d 160, 170-72 (Tex.Cr.App.1989), cert. denied, 502 U.S. 961, 112 S.Ct. 426, 116 L.Ed.2d 446 (1991). Point of error twenty-four is overruled.
In point of error seventeen, appellant contends that the State's allegedly improper questions and sidebar remarks to appellant during its cross-examination of him denied appellant a fair and impartial trial. To begin, we feel compelled to note the inadequacy of appellant's “Argument and Authorities” for the instant point. The entirety of this section consists of one paragraph which incorporates the arguments made for points of error fourteen, fifteen, and sixteen. In reference to this incorporation, appellant adds the statement, “Suffice it to say, however, that the prosecutor's actions in the instant point of error constitute a continuing pattern of misbehavior intended to deny the appellant a fair trial.” (Emphasis added.)
Regardless of any similarity in argument, points fourteen, fifteen, and sixteen all concern errors allegedly committed in the punishment phase of trial.FN7 Point seventeen, although it occurs later in the appellate brief, concerns errors allegedly committed in the guilt/innocence phase. Thus, those complaints in point seventeen occurred chronologically prior to those complaints in points fourteen, fifteen, and sixteen and cannot show a pattern which continues from those points.
FN7. Hence these points are not addressed in this opinion due to our sustaining of point of error thirty.
Furthermore, point fourteen concerns references to parole, a topic clearly of no concern in the instant point of error. Point fifteen is couched in terms of prosecutorial misconduct and only cites two cases, both of which refer to improper questions that result in obvious harm and are clearly calculated to inflame the jury. Nowhere is the law applied to the facts or even how it relates to the alleged error in this instance. And finally, point of error sixteen is also couched in terms of prosecutorial misconduct. In addition to the same two cases cited for point fifteen, appellant adds two cases concerning repeated acts of misbehavior on the part of the prosecutor.
Given that point seventeen does not concern the topic of parole law, nor is it couched in terms of prosecutorial misconduct, we do not see how the limited authorities are applicable here. Furthermore, even if they could be stretched to apply, appellant has nowhere in this point applied the law to the facts thus showing why he should prevail in this instance. For these reasons we hold this point of error to be inadequately briefed under Texas Rules of Appellate Procedure 74(f).
Finally, we note that in each of the three complained of instances of improper comments in this point, appellant received an instruction to the jury to disregard the allegedly improper statement. Under the circumstances, we hold this sufficient to cure any harm that might otherwise have occurred. See Norris v. State, 902 S.W.2d 428 (Tex.Cr.App.1995); Hendricks v. State, 640 S.W.2d 932, 939 (Tex.Cr.App.1982). And in his fourth complained-of instance, wherein he alleged that the prosecutor was pointing a gun at appellant in order to intimidate him FN8, appellant received the instruction he requested for the State not to take this action. Because appellant received all that he requested, there is nothing for this Court to review. Purtell v. State, 761 S.W.2d 360, 372 (Tex.Cr.App.1988), cert. denied, 490 U.S. 1059, 109 S.Ct. 1972, 104 L.Ed.2d 441 (1989); Easterling v. State, 710 S.W.2d 569, 580 (Tex.Cr.App.), cert. denied, 479 U.S. 848, 107 S.Ct. 170, 93 L.Ed.2d 108 (1986). Point of error seventeen is overruled. FN8. An action denied by the State.
Appellant argues in point eighteen that the prosecutor's questioning of Daniel Tsongas “violated the appellant's right to a fair and impartial trial in that the prosecutor repeatedly disregarded the trial court's instructions and he deliberately testified as to facts that were inadmissible.” As in point of error seventeen above, appellant again cites us to no authority to support this point of error, but merely states that “[t]he arguments and authorities relied upon in points of error fourteen, fifteen, sixteen and seventeen, supra, are also applicable to the instant point of error and are reurged in this point of error.”
We again hold that these arguments and authorities are different in character from the error alleged under the present point. We find this point to be inadequately briefed pursuant to the dictates of Texas Rule of Appellate Procedure 74(f) and thus nothing is presented for our review. Point of error eighteen is overruled.
Appellant alleges in point of error nineteen that the State denied appellant a fair and impartial trial by committing prosecutorial misconduct in violating an agreed stipulation concerning the testimony of Texas Ranger Joe Coleman. Specifically he makes two arguments: 1) that the prosecutor violated Texas Rule of Evidence 804(b)(1) and, 2) that the prosecutor violated an agreed stipulation concerning the testimony.
The facts underlying this point of error are as follows: the State offered the former testimony of Ranger Coleman which had been given at appellant's first trial since the officer had died prior to the second trial. In reading this former testimony into the record, the State basically “acted out” the part of the officer, including interpreting what actions the officer might have taken in being handed a gun and badge. These interpretive actions drew objections from appellant which were then sustained by the trial court.
While appellant does not argue that the testimony itself was inadmissible under Rule 804(b)(1), he does argue that the rule provides only for reading said testimony into the record and nothing more. In fact, Rule 804(b)(1) says nothing about how such former testimony can be placed into the record, only that it is not excluded as hearsay.FN9
As to the alleged violation of an agreed stipulation, we find references to this stipulation in the record, but we do not find the actual stipulation. Moreover, what testimony we do read evidencing its actual content is disputed between the parties. Given no further argument or authority, we cannot say that error occurred. Point of error nineteen is overruled.
Appellant contends in point twenty that the cumulative effect of the improper questions asked by the prosecutor denied appellant a fair and impartial trial. Again appellant's alleged error focuses on points of error fourteen through nineteen. Again we overrule his point of error. As we stated in earlier parts of this opinion, points fourteen through sixteen allege errors during the punishment stage. Any error that might have occurred at this point in the trial is moot pursuant to our disposition of point of error thirty. The other alleged errors were either cured by instruction, not error, or not briefed adequately enough for us to review.
The only additional argument appellant has provided for this point of error (other than again relying on the paucity provided under the cited points) is a recitation of harmless error analysis under Harris v. State, 790 S.W.2d 568, 587-88 (Tex.Cr.App.1989). However, appellant has given us no further application of the law to the facts nor shown us any other reason why our disposition of the separate points should not apply here as well. Tex.R.App.Proc. 74(f). As such, point of error twenty is overruled.
In points twenty-six and twenty-seven, appellant claims that he was denied his right of confrontation in that he was not allowed to use the verb “beat” in his cross-examination of a State's witness.FN10 In his argument on these points of error, appellant explains that one aspect of his defensive theory was that he received a “beating” at the hands of the police upon his arrest and that this later colored the so-called voluntariness of his confessions. He asserts that his not being allowed to describe this incident as a “beating” effectively denied him the right to fully cross-examine the witness on this important aspect of his defense.
FN10. Point twenty-six alleges that this is a violation under the Sixth and Fourteenth Amendments to the United States Constitution and point twenty-seven argues it is a violation under Article I, Section 10 of the Texas Constitution.
The record reveals that appellant was on the ground when Deputy Bobby Calloway encountered him, but appeared as if he was trying to get up and had his hands concealed underneath him. Calloway testified on direct that he struck appellant around the head with the butt of his shotgun in order to get him under control. Appellant then began his cross-examination by asking, “So this was just a little short beating with the butt of the shotgun?” When the State objected to the terminology being used, the trial court overruled the objection and allowed the characterization to stand. The officer immediately responded that there was no beating.
It was not until after appellant persisted in characterizing the incident as a beating and the officer continued to deny that a beating occurred that the State again objected. At that time, the following transpired: “[APPELLANT:] Okay. So your testimony to Mr. Johnson was that you could have killed him, but you just beat him with the shotgun butt instead, under the circumstances? “[THE STATE:] Your Honor, I'm going to object to this ‘beating’ the defense attorney keeps wanting to use in his description of what took place. It was a striking, at the most. “[APPELLANT:] Your Honor, if the prosecutor wants to testify, he should be sworn to take the stand. That's not an objection. “[THE STATE:] The defense attorney has been testifying in here the whole proceeding, and I'm objecting now to his continued use of the descriptive language that the evidence doesn't support, Your Honor. “THE COURT: Sustain the objection.”
We agree with the State. Appellant's continual characterization of the incident as a “beating” was in direct contradiction to the evidence up to that point in the trial and the trial judge properly sustained the objection. However, it is clear that up until the sustaining of that objection appellant was allowed to and did attribute the description of “beating” to the occurrence. It is just as clear that appellant was in no other way prohibited from questioning police officers about any alleged use of excessive force at the time of appellant's arrest.FN11 Points of error twenty-six and twenty-seven are overruled.
FN11. Appellant makes this same complaint with regard to his questioning of one Lieutenant Johnny Hatcher. However, we find the same holding to apply.
In point of error thirty, appellant alleges that the trial court erred in not instructing the jury as required by Articles 37.071 and 37.0711, V.A.C.C.P. He explains that the court did not ask the jury whether the killing was “deliberate” or whether the killing was unreasonable in response to any provocation by the decedent. Therefore, he maintains, the court sentenced appellant to death without the authority to do so. We agree.
Appellant committed the instant offense in its entirety in 1988. This trial commenced around April, 1992. Hence, the parties first logically looked to the Texas Code of Criminal Procedure in effect at that time. This version of the Code reflects the Legislature's 1991 changes to Article 37.071 removing the question of deliberateness from the jury's consideration. However, the Senate Bill that was passed enacting these changes to the Code also expressly stated:
“SECTION 5. (a) The effective date of this Act is September 1, 1991, and the change in law made by this Act applies only to an offense that is committed on or after September 1, 1991. * * * * * * “(b) An offense before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for this purpose.” Tex.S.B. 880, Sec. 5, 72nd Leg., R.S.1991 V. T.S.L.S. Chapter 838.
Hence, these changes did not apply to appellant's trial and the prior Article 37.071 including the deliberateness question controlled. By failing to give this question at trial, the court received an incomplete verdict and thus was without authority to sentence appellant to death. FN12 Powell v. State, 897 S.W.2d 307 (Tex.Cr.App.1994). Appellant's thirtieth point is sustained.
FN12. The provocation issue, on the other hand, is required only if there is evidence of provocation by the victim. Given our ruling as to the omission of the “deliberateness” issue, we need not address this contention.
In light of this holding, the remaining points of error arising from and affecting only the punishment stage of appellant's trial, none of which challenge the sufficiency of the punishment evidence, are dismissed as moot. FN13 Under the mandate of Article 44.251, V.A.C.C.P., we affirm the judgment, but vacate appellant's sentence of death and remand to the district court for further proceedings in accordance with the dictates of Article 44.29(c).
FN13. This includes points one through sixteen, twenty-eight, twenty-nine, thirty-one, and thirty-two.
Smith v. State, 74 S.W.3d 868 (Tex.Cr.App. 2002) (Direct Appeal).
Defendant was convicted in the 112th District Court, Pecos County, Brock Jones, J., of capital murder of a law enforcement officer, and was sentenced to death. He appealed. The Court of Criminal Appeals reversed. Defendant was again convicted and sentenced to death. The Court of Criminal Appeals, 907 S.W.2d 522, affirmed judgment but vacated sentence and remanded for new punishment hearing. On remand, defendant was again sentenced to death, and he appealed. The Court of Criminal Appeals, Price, J., held that: (1) evidence showed future dangerousness justifying death penalty; (2) the same jury did not have to hear guilt-innocence phase and punishment phase; and (3) imposition of death penalty after 12-year imprisonment was not cruel and unusual punishment. Affirmed.
PRICE, J., delivered the opinion of the unanimous Court.
In August 1989, a Pecos County jury found the appellant guilty of capital murder and answered the punishment issues in a manner requiring the imposition of the death penalty. We reversed the conviction. Smith v. State, No. 71, 010 (Tex.Crim.App. December 4, 1991) (not designated for publication). The appellant was again convicted of capital murder and received the death penalty. We affirmed the conviction but reversed the death sentence and remanded the case for a new punishment hearing. Smith v. State, 907 S.W.2d 522, 534 (Tex.Crim.App.1995). Now we consider the appellant's third trial on punishment conducted in November 1999, in which the jury answered three special issues pursuant to Article 37.0711, sections 3(b) and 3(e), and the trial court again sentenced the appellant to death. Tex.Code Crim. Proc. art. 37.0711 § 3(g).FN1 Direct appeal to this Court is automatic. Art. 37.0711 § 3(j). The appellant raises five points of error. We will affirm.
In his first point of error, the appellant challenges the legal sufficiency of the evidence to support the future dangerousness issue. In evaluating the sufficiency of the evidence to support the jury's answer to the future dangerousness special issue, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found beyond a reasonable doubt that there is a probability that the appellant would commit criminal acts of violence constituting a continuing threat to society. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Allridge v. State, 850 S.W.2d 471, 487 (Tex.Crim.App.1991). We have enumerated a non-exclusive list of factors that the jury may consider in determining whether a defendant constitutes a continuing threat to society:
(1) the circumstances of the capital offense, including the defendant's state of mind and whether he was acting alone or with other parties; (2) the calculated nature of the defendant's acts; (3) the forethought and deliberateness exhibited by the crime's execution; (4) the existence of a prior criminal record and the severity of the prior crimes; (5) the defendant's age and personal circumstances at the time of the offense; (6) whether the defendant was acting under duress or the domination of another at the time of the commission of the offense; (7) psychiatric evidence; and (8) character evidence.
Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App.1987); accord Reese v. State, 33 S.W.3d 238, 245 (Tex.Crim.App.2000). In the appropriate case, the circumstances of the offense alone may warrant an affirmative answer to the future dangerousness special issue. Sonnier v. State, 913 S.W.2d 511, 517 (Tex.Crim.App.1995).
Here, the State presented evidence of the facts surrounding the capital murder. After escaping from a Kansas correctional facility in August 1988, the appellant and his cousin stole a truck and drove to the Houston area where they burglarized several homes and stole, among other things, a .357 magnum pistol and ammunition. They then stole a van and began driving west toward New Mexico. On August 19, 1988, the appellant and his cousin drove away from a gas station in Bakersfield, Texas, without paying for gas. Officer Tim Hudson and two other patrol cars responded to the theft call and engaged the appellant and his cousin in a car chase, which ended with the appellant firing three shots at Hudson's car, one of which fatally wounded Hudson.FN2 Hudson had momentarily driven along side of the appellant and had not unstrapped his gun holster or rolled down his car window.
FN2. The appellant's cousin handed the appellant the gun, but did not tell the appellant to shoot Hudson. Furthermore, in his confession, the appellant stated that he was not afraid or under the domination of his cousin.
The appellant and his cousin continued to evade police. While unsuccessfully trying to steal a pick-up truck, the appellant and his cousin stole a .22 rifle and ammunition. They eventually stopped at a local farm where they were able to steal a tractor-trailer and set the van on fire. The appellant and his cousin then encountered a police road block, did a U-turn in the road, and another high speed chase ensued. Several branches of law enforcement, including a helicopter from the United States Customs Service, participated. The chase exceeded speeds of 100 miles per hour and involved shots fired both at and from the stolen tractor-trailer. The appellant eventually drove the tractor-trailer off the road and was apprehended. He later confessed to the entire incident.
The State also presented testimony concerning the appellant's behavior in Kansas and in the Pecos County Jail. In Kansas, the appellant and some friends tried to pick up several girls that they saw at a store, but the girls were not interested. The appellant and his friends followed the girls home and again unsuccessfully tried to pick them up; the encounter eventually devolved into an exchange of obscenities. The girls' brothers heard the cursing and came outside. The appellant and his friends cursed and threw lit firecrackers at them before driving away. The appellant and his friends returned shortly thereafter and slowly drove around the home several times. The police were called and a report was made. Less than an hour after the police left, however, the appellant and his friends returned. The girls' brothers jumped in their car and a chase ensued. The appellant and his friends came to a stop. The brothers exited with sticks in their hands and approached the appellant's car. The appellant and the driver got out of their car and the driver shot two of the brothers, killing one. Before the shooting, the appellant yelled at the driver to “Shoot the fucking Mexican!” Also, testimony indicated that the rifle used in the shooting had been stolen by the appellant and his friends shortly before returning to the girls' home. The appellant got back in the car, drove the car between the shooter and the remaining brothers, picked up the shooter, and then drove off. The appellant confessed to the above events, but had a “flippant” attitude towards the crime. FN3 He was sent to a minimum security prison unit in Kansas.
FN3. In fact, the Kansas sheriff testified that the appellant and his friends were laughing and joking about the crime.
While in the Kansas jail for his part in the shooting, the appellant retaliated against a correctional officer who had reported him for a disciplinary violation by hitting her in the arm.FN4 The officer said that the appellant was “smuggish” about this violation and gave an insincere apology. The corrections officer testified that the appellant escaped with one month left on his sentence.
FN4. The testimony revealed that touching a guard at the Kansas facility was considered a “very serious offense.”
Also, while incarcerated in the Pecos County jail for the instant offense, the appellant admitted to a cellmate that killing Hudson fulfilled his life's goals and that he “slept like a baby” the night after the murder. The appellant also perverted the lyrics to the Bob Marley song “I Shot the Sheriff,” singing in his cell, “I shot the Sheriff but in my case it was the deputy.”
After a 1996 cell and strip search conducted by Pecos County jailors, the appellant became enraged that jailors had “tor[n] up his stuff.” He destroyed several light fixtures and a TV in the day room, and his cell door window. In the process, he threw light bulbs and other debris through the bars and at the deputies who were in the control room. He then started a fire by lighting his blanket. Before the appellant was finally subdued, he threatened to kill the first person through the door.
Furthermore, various Pecos County law enforcement officers characterized the appellant as very aggressive and more aggressive than most inmates, a danger to both the inmates and the prison personnel, and a dominating force in the prison. One witness described the appellant as having “moods,” one day he could be as “docile as can be,” and the next day he could be a “raging, crazy, human being.” In addition, prison personnel often discovered contraband, including a shank and pieces of metal, in the appellant's cell. Although the appellant did not use a shank against other inmates, he had assaulted other inmates, some of which were “serious fights.” The appellant had also grabbed a deputy through the cell bars, which resulted in a minor scuffle.FN5 Each witness, whether from Kansas or Texas, who was asked about the appellant's reputation for being a peaceful person answered that they thought it was bad. FN6
FN5. The deputy testified that it was unclear whether the appellant was trying to escape or angry with the deputy for not getting him a cup of ice.
FN6. In fact, one woman testified in response to defense counsel's question that she did not think that the appellant had any good or redeeming qualities.
There was no psychiatric evidence presented or evidence concerning the appellant's background. The appellant was twenty-two years old at the time of the offense.
The evidence concerning the appellant's future dangerousness supports the jury's verdict. The appellant and his cousin, both fugitives from a correctional facility, pillaged their way from Kansas to West Texas, ultimately shooting at and killing a police officer who had not threatened them other than by flashing his lights and pulling up along side them. Throughout their flight, their behavior of switching vehicles and evading local peace officers, shooting firearms, and fleeing at speeds in excess of 100 miles per hour, exhibited both forethought and deliberateness to avoid capture from their escape from Kansas as well as a disregard for the lives of their pursuers and innocent bystanders. The murder of Officer Hudson also shows an increasing disrespect for human life, as the appellant evolved from an accomplice encouraging the murder in Kansas to the triggerman himself in Texas. See King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997) (an escalating pattern of disrespect for the law supports a finding of future dangerousness). Furthermore, shortly after the appellant was caught, he expressed no remorse and had a cavalier attitude about having killed Officer Hudson. See Rachal v. State, 917 S.W.2d 799, 806 (Tex.Crim.App.1996) (lack of remorse may be a factor in determining future dangerousness). Finally, the evidence of the appellant's violent behavior in prison reveals his continuing volatility and bad character. The evidence shows a person who has a temper, is aggressive, dangerous, violent, and dominating-a danger to those around him. After viewing the evidence in the light most favorable to the verdict, we hold that a rational jury could have reasonably concluded that the appellant would commit criminal acts of violence that would constitute a continuing threat to society. Allridge, 850 S.W.2d at 487. We overrule point of error one.
In points of error two, three, and five, the appellant alleges that we should reverse and remand this case for a new trial on guilt-innocence or nullify the third punishment hearing under the doctrine of collateral estoppel because the trial court did not submit a deliberateness issue to the jury following the punishment phase of the second trial.FN7
FN7. We remanded the case on punishment because the trial court failed to submit the deliberateness issue at the punishment phase of the second trial. See Smith v. State, 907 S.W.2d 522, 534 (Tex.Crim.App.1995) ( “[b]y failing to give [the deliberateness] question at trial, the court received an incomplete verdict and thus was without the authority to sentence appellant to death”). The trial court did submit the deliberateness issue after the third punishment phase, from which the appellant now appeals: “Do you find from the evidence beyond a reasonable doubt that the conduct of the defendant that caused the death of TIM HUDSON was committed deliberately and with reasonable expectation that the death of TIM HUDSON or another would result?”
Assuming without deciding that the appellant has not procedurally defaulted on these claims, the claims fail on the merits. FN8 In his second point of error, the appellant argues that this Court's failure to reverse and remand on guilt-innocence, as well as punishment, violated the Sixth Amendment and due process. Because the “legislature defined capital murder punishment by death as including the element of deliberateness,” Powell v. State, 897 S.W.2d 307, 318 (Tex.Crim.App.1994) (plurality opinion), overruled by Prystash v. State, 3 S.W.3d 522 (Tex.Crim.App.1999), the appellant argues that the same jury should have considered the guilt-innocence phase and deliberateness special issue. The appellant also argues that treating the deliberateness issue as a special aggravating circumstance, affecting only a defendant's sentence, would exceed the constitutional limits on a state's power “to determine whether a jury's finding of fact about a crime is an element of the offense.” FN9
FN8. The State argues that the appellant has procedurally defaulted points of error two, three and five. See Tex.R.App. P. 33.1(a)(1); cf. Clark v. State, 994 S.W.2d 166, 169 (Tex.Crim.App.1999) (Johnson, J., concurring) (arguing that issues regarding this Court's ability to remand a case for a new punishment phase alone raised for the first time after order for remand on punishment and conclusion of new punishment phase are procedurally defaulted).
FN9. The appellant also argues that the issue of deliberateness has three other qualities to distinguish it from an “ordinary statutory aggravating factor”: (1) it defines a culpable mental state, (2) that had to exist to make homicide a capital offense under Texas law regardless of any of the other circumstances of the crime, and (3) the double jeopardy clause bars the State from seeking the death penalty at a retrial if the evidence was legally insufficient to prove it. The appellant fails to support or clearly argue this position. Tex.R.App. P. 38.1(h).
The appellant mistakenly relies on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), for the proposition that a sentencing factor like deliberateness constitutes a fact finding that must be made by the same jury who determined guilt-innocence. In Apprendi, the United States Supreme Court found that a New Jersey hate crime statute violated the Fourteenth Amendment's guarantee of due process because it allowed sentence enhancement (the effect of which was to turn a second-degree felony into a first-degree felony) based upon the judge's fact finding of racial motivation by a preponderance of the evidence. Apprendi, 530 U.S. at 491-92, 120 S.Ct. 2348. The Supreme Court's decision to strike down the New Jersey statute turned on its constitutional rule that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348.
First, despite the language quoted by the appellant in Powell, we did not treat “deliberateness” as an element of capital murder. We remanded the case to the trial court under article 44.29(c) for a new punishment hearing, but affirmed the determination of guilt for capital murder. Powell, 897 S.W.2d at 318. There was no suggestion that the omission of the deliberateness special issue somehow negated the determination of guilt of capital murder. Id.; Smith v. State, 907 S.W.2d at 534. If anything, the quoted language in Powell should be read to mean that the “deliberateness” special issue is an element of the death penalty, not of capital murder.
Second, even if we consider “deliberateness” to be an element of capital murder, the Texas scheme complies with Apprendi's constitutional rule-the deliberateness special issue is answered by the jury and proved by the State beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348; Art. 37.0711 § 3(c).
Finally, we see nothing in Apprendi that suggests that the same jury must consider the guilt-innocence and punishment phases where the trial court submits an issue of deliberateness, as the appellant argues. Apprendi requires only that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added). As we pointed out above, the Texas scheme follows Apprendi's constitutional rule. We may reverse and remand any capital case for a punishment hearing alone before a new jury. See Ransom v. State, 920 S.W.2d 288, 297-98 (Tex.Crim.App.1994); Smith, 907 S.W.2d at 534; Powell, 897 S.W.2d at 318. The appellant fails to convince us that he suffered a Sixth Amendment or due process violation. We overrule point of error two.
In his third point of error, the appellant argues that the State waived its right to submit the issue of deliberateness in the third punishment phase hearing because it failed to have the trial court present the issue at the retrial.
For offenses committed before September 1, 1991, the trial court is required to include the deliberateness special issue in the jury charge at the punishment phase. Art. 37.0711 § 3(c); Powell, 897 S.W.2d at 316-18. The inclusion of the deliberateness special issue is a directive of the trial court and not a right of the parties; it may not be waived by the litigants. Busby v. State, 990 S.W.2d 263, 268 (Tex.Crim.App.1999) (citing Powell for the proposition that the deliberateness special issue cannot be waived); Powell, 897 S.W.2d at 316-318; cf. Ex parte McJunkins, 954 S.W.2d 39, 40 (Tex.Crim.App.1997) (noting that Penal Code section 3.03 is a right of the litigants that may be waived, as opposed to article 42.12, section 3(g)(a), which is an absolute directive or prohibition on the trial court). A defendant, however, is estopped from complaining on appeal of the omission of the deliberateness special issue if the defendant invites the error of omission. Prystash, 3 S.W.3d at 532. Here, neither the defendant nor the State invited the error of omission; the State did not procedurally default. FN10 Id.; Busby, 990 S.W.2d at 268; Powell, 897 S.W.2d at 316-318. We overrule point of error three.FN11
FN10. The appellant's argument is counterintuitive. The deliberateness special issue helps the defendant and is an extra burden for the State. Because of the benefit received by the appellant from its inclusion in the charge, his argument seems backwards; there is a more logical argument that the defendant waived the deliberateness special issue himself. Because it is the trial court's duty to include the deliberateness special issue, however, and the defendant did not invite the error, the defendant did not procedurally default on the inclusion of the special issue.
Furthermore, we do not treat omissions of the deliberateness special issue as a “waiver.” Smith, 907 S.W.2d at 534 (remanding for a new punishment phase hearing because of the omission of the deliberateness special issue); Powell, 897 S.W.2d at 318 (same); cf. Prystash, 3 S.W.3d at 532 (“But we do not treat omissions of the elements of the offense as waivers.”).
In his fifth point of error, the appellant alleges that the doctrine of collateral estoppel precluded the State from presenting the deliberateness issue at the punishment rehearing. Collateral estoppel, one of the protections provided by the Fifth Amendment guarantee against double jeopardy, simply means that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).
The deliberateness issue was not submitted to the jury in the 1992 punishment hearing. Accordingly, the issue was not determined in the 1992 punishment hearing. Because the issue was not determined in the 1992 punishment hearing, the doctrine of collateral estoppel is inapplicable. FN12 Ashe, 397 U.S. at 443, 90 S.Ct. 1189. We overrule point of error five.
FN12. Ex parte Tarver, 725 S.W.2d 195 (Tex.Crim.App.1986) is not applicable in this case. In Tarver, the trial court in the prior proceeding had expressly found an allegation to be untrue. Id. at 198. No such determination was made in this case.
In his fourth point of error, the appellant argues that his death sentence should be reformed to life in prison because executing him after he has served at least twelve years in prison waiting for the State to give him a fair trial would violate the Eighth Amendment. The appellant's claim is without merit.
Not only has the delay effectuated an ultimately sound conviction and punishment proceeding, the appellant fails to produce any evidence that the State abused the system, despite the retrials. We therefore look to the Supreme Court to determine whether the length of the delay per se has violated his Eighth Amendment rights. The Supreme Court has interpreted the cruel and unusual clause to prohibit punishment that offends the “evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion). In determining what standards have “evolved,” the Supreme Court has looked to the standards of “modern American society as a whole.” Stanford v. Kentucky, 492 U.S. 361, 369, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989).
The present standards of decency do not deem cruel and unusual the delay occasioned while a condemned prisoner pursues direct appeals and collateral relief. The United States Courts of Appeals have determined that a delay in excess of thirteen years between sentencing and execution does not constitute cruel and unusual punishment. E.g. White v. Johnson, 79 F.3d 432, 439-40 (5th Cir.1996) (rejecting claim that to execute death-sentenced inmate after pursuing appeals and collateral relief for seventeen years is cruel and unusual); McKenzie v. Day, 57 F.3d 1493, 1494 (9th Cir.1995) (rejecting claim that to execute death-sentenced inmate after pursuing appeals and collateral relief for approximately two decades is cruel and unusual). State courts have also rejected this issue. E.g. Bell v. State, 938 S.W.2d 35, 53 (Tex.Crim.App.1996) (rejecting claim that to execute death-sentenced inmate after nearly twenty-years after pursuing appeals is cruel and unusual); Hitchcock v. State, 578 So.2d 685, 693 (Fla.1990) (rejecting claim that to execute death-sentenced petitioner after pursuing appeals and collateral relief for twelve years is cruel and unusual), rev'd on other grounds, 505 U.S. 1215, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992); People v. Chessman, 52 Cal.2d 467, 341 P.2d 679, 699-700 (1959) (rejecting claim that to execute death-sentenced petitioner after pursuing appeals and collateral relief for more than eleven years is cruel and unusual), overruled on other grounds, People v. Morse, 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33 (1964). The approximate thirteen years the appellant has spent challenging his conviction and sentence is not a fortiori unconstitutionally cruel and unusual. We overrule point of error four.
Finding no reversible error, we affirm the judgment of the trial court.