Daniel Ray Smith v. State

Affirmed and Memorandum Opinion filed August 21, 2008

Affirmed

and Memorandum Opinion filed August 21, 2008.

In The

Fourteenth Court of

Appeals

____________

NO. 14-07-00671-CR

____________

DANIEL RAY SMITH , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 176th

District Court

Harris County, Texas

Trial Court Cause No. 1064737

M E M O R A N D U M O P I N I O N

Appellant Daniel Ray Smith appeals his conviction for

capital murder. In five issues, appellant challenges the sufficiency of the

evidence, the exclusion of a lesser-included offense in the jury charge, and

submission of a special issue regarding the use or exhibition of a deadly

weapon. We affirm.

I. Background

Complainant Norman Oshman was due to return to Houston late

Thursday evening, December 8, 2005, after a short business trip to Las Vegas.

The complainant = s mother, Esther Oshman, knew that her son

was traveling and expected to hear from him when he returned. By the next

evening, December 9, when Esther was unable to reach her son by telephone, she

became concerned and drove to the apartment with her other son, Gene Oshman.

They entered the apartment using Esther = s spare key and

saw the complainant = s suitcase just inside the doorway. They

found the complainant dead in his bedroom. He had been tied up and severely

beaten. He had multiple skull fractures, many of which were deep enough to

break through the skull and expose brain matter. Blood was pooled on the bed

and splattered all over the room. Gene called the police, and the

investigation began.

A removed window screen in the complainant = s bedroom, a muddy

footprint on the carpet under the window, and a newly positioned table under

the window led police to believe the intruder gained access to the apartment

through the window. The complainant = s wallet was found

with a parking receipt, indicating that he had exited the airport parking lot

on December 8, 2005. Police also discovered a piece of paper with internet

log-in names and passwords in the complainant = s apartment.

Using this information, the police were able to access recent activity on the

complainant = s credit cards. The records indicated that the

complainant = s American Express card had been used at a Diamond

Shamrock store at 4:45 a.m. on December 8, 2005, while the complainant was

still in Las Vegas. This transaction was captured by video surveillance. The

card was used again later that morning at a convenience store. The records

also showed several transactions on other credit or bank cards occurring on

December 9 and 10 at a Sterling Bank ATM, a Royal Oaks Bank ATM, and a Chase

Bank ATM. Video surveillance cameras recorded some of these transactions as

well. The surveillance video from Chase Bank showed five attempted

transactions on December 10 using the complainant = s credit card. An

Hispanic male made the first two withdrawal attempts, and a second male wearing

a ski mask, a dark leather coat, gloves, and dark colored shoes attempted the

rest of the transactions. The video also showed the man wearing the ski mask and

dark coat urinating on the ATM.

The suspect in the Diamond Shamrock surveillance video

drove a gray or silver late model foreign car with a spoiler on the back.

After seeing the video played on the news, the complainant = s friend, Jay

Frank, observed a similar car parked near the complainant = s apartment

complex. Frank reported the car and its license plate number to the police.

The car was registered to appellant, and after executing a search and arrest

warrant, police arrested appellant and seized from appellant = s bedroom a black

leather jacket, shoes, and slacks similar to the ones seen in the surveillance

video. In addition, a can of Copenhagen snuff was found in appellant = s apartment. A

police officer testified that a can of Copenhagen snuff had been purchased at

the Diamond Shamrock store with the complainant = s credit card.

Appellant was charged with intentionally causing the death

of the complainant while in the course of committing or attempting to commit a

burglary by striking him with a baseball bat or an unknown object. At trial,

the State submitted the surveillance videos into evidence. Two witnesses

acquainted with appellant testified that the mannerisms of the person in the

Diamond Shamrock video and the mannerisms and clothing of the person wearing

the ski mask and dark jacket in the Chase Bank video were consistent with

appellant = s mannerisms and clothing.

The State also presented evidence from two inmates in whom

appellant had confided while in jail. Randy Middlebrook testified that he

bunked next to appellant. One evening after the lights were out, appellant

told Randy that he stopped praying a long time ago because he A knew exactly what

he was doing when he killed that man. @ Appellant told

Randy he was in the complainant = s apartment looking for money and other

items to sell when the complainant came home. Appellant claimed he had

murdered the A heir to the Oshman sporting goods family. @ Randy testified

appellant said that from the blood splatter, the police thought it was a

shotgun, but that he had used a baseball bat. Randy also testified that

appellant claimed he could tell Randy where the clothes and weapon used in the

murder and the stolen credit cards were hidden. Jesse Capes, another inmate,

testified that appellant asked him whether it was possible to get AIDS from

blood that had spattered in appellant = s eye. Appellant

also asked Jesse whether police could obtain a DNA sample from urine if

appellant had urinated on something outside. According to Jesse, appellant

said the murder was a A burglary gone bad. @ Jesse testified

to hearing appellant tell Randy that appellant had tied up a man and killed him

with a baseball bat, and that appellant could tell Randy where the clothes,

weapon, and credit cards were hidden.

A jury convicted appellant of capital murder and sentenced

him to life in prison. On appeal, appellant argues that the trial court erred

in failing to instruct the jury on the lesser-included offense of burglary,

that the evidence is legally and factually insufficient to prove he used either

a baseball bat or an unknown object, and that the trial court erred in

submitting a special issue regarding the use of a deadly weapon because (1)

appellant did not receive proper notice and (2) the special issue constituted

an impermissible comment on the weight of the evidence.

II. Lesser-Included Offense

In his first issue, appellant claims the trial court erred

by refusing his request that the jury be instructed on the lesser-included

offense of burglary of a habitation. The following two-prong test is used to

determine if a charge on a lesser-included offense should be given: (1) the

lesser-included offense is included within the proof necessary to establish the

offense charged and (2) there is some evidence that would permit a rational

jury to find that the defendant is guilty of the lesser offense but not guilty

of the greater. See Tex. Crim.

Proc. Code Ann . art. 37.09(1) (Vernon 2006); Salinas v. State ,

163 S.W.3d 734, 741 (Tex. Crim. App. 2005).

The indictment in this case required the State to prove

burglary or attempted burglary on December 9, 2005 as the underlying offense to

capital murder. [1]

The jury charge stated, A A person commits the offense of burglary

of a habitation if, without the effective consent of the owner, he: (1) enters

a habitation with intent to commit a felony, theft, or an assault; or (2)

enters a habitation and commits or attempts to commit a felony, theft, or an

assault. @ Because proof of

the elements of burglary necessarily involved proof of the same or fewer facts

required to prove capital murder, the first prong is satisfied. See Salinas ,

163 S.W.3d at 741 .

In meeting the second prong of the test, there must be some

evidence from which a rational jury could acquit the defendant of the greater

offense while convicting him of the lesser-included offense. Id. Evidence

may indicate that a defendant is guilty only of the lesser offense if it

refutes or negates other evidence establishing the greater offense or if the

evidence is subject to different interpretations. Saunders v. State ,

840 S.W.2d 390 , 391 B 92 (Tex. Crim. App. 1992) (en banc) (per

curiam). That the jury may disbelieve crucial evidence pertaining to the

greater offense is not sufficient to warrant the submission of the

lesser-included offense to the jury; there must be some evidence directly

germane to the lesser-included offense to warrant such submission. See

Skinner v. State , 956 S.W.2d 532, 543 (Tex. Crim. App. 1997). The evidence

must be evaluated in the context of the entire record. Moore v. State ,

969 S.W.2d 4, 8 (Tex. Crim. App. 1998) (en banc). The credibility of the

evidence and whether it conflicts with other evidence should not be considered

when deciding whether the charge on the lesser offense should be given. Saunders ,

840 S.W.2d at 391 . If the defendant simply denies commission of the offense or

there is no evidence specifically raising an issue regarding an element of the offense,

then the charge on the lesser offense is not required. Id. at 392 .

Appellant claims the trial court erred in refusing to give

a lesser-included offense instruction on burglary of a habitation because the

jury could have found appellant only burglarized the apartment on December 8,

2005 and that someone else committed the burglary and murder on December 9,

2005. The proper inquiry is whether, when viewed in the light most favorable

to the defendant = s requested submission, the evidence is

sufficient for a rational jury to conclude that the State and the defendant are

proposing alternate versions of the same instance of conduct and not separate

instances of conduct. Bufkin v. State , 207 S.W.3d 779, 783 (Tex. Crim.

App. 2006). In other words, to be entitled to a lesser-included offense

instruction, a rational factfinder must have reason to believe that the

defendant = s scenario competes, rather than coexists, with the

State = s scenario. Id.

The complainant returned home from Las Vegas sometime on

Thursday evening, December 9. Although appellant used the complainant = s American Express

card before the complainant = s return, different cards belonging to the

complainant were used after the complainant returned home on December 9 and

10. Accordingly, it would appear that the complainant = s apartment was

burglarized twice: once on December 8 when the American Express card was

stolen, and once on December 9 when the complainant came home and surprised the

intruder. In support of his argument that there is evidence to support

submission of the lesser-included offense, appellant points to (1) an

unidentified palm print discovered near the window, which appellant claims

could have been left by a second burglar who committed the murder, and (2) the

unknown Hispanic male seen using the credit card in the Chase Bank surveillance

video.

Appellant = s argument fails because although evidence

regarding the December 8 burglary was introduced at trial, it was a completely

separate offense. The indictment charged appellant with committing murder in

the course of committing a burglary on December 9. Therefore, appellant was

entitled to a lesser-included offense instruction on burglary of a habitation

if some evidence showed he committed only a burglary on December 9, but not the

accompanying murder. The evidence to which appellant points merely supports

the inference that someone else committed both the burglary and murder on

December 9. It does not tend to show that appellant may have committed only

the December 9 burglary but not the accompanying murder. Because the evidence

at trial merely tended to show appellant may have committed a separate offense

from the one for which he was charged, we conclude he was not entitled to an

instruction on burglary of a habitation. See id. ; see also Hayward

v. State , 158 S.W.3d 476 , 479 B 80 (Tex. Crim.

App. 2005) (concluding appellant who claimed she merely struck complainant with

fists and someone else stabbed complainant was not entitled to lesser-included

offense instruction on assault because hitting with fists was a separate crime

not alleged in indictment); Campbell v. State , 149 S.W.3d 149 , 155 B 56 (Tex. Crim.

App. 2004) (holding evidence did not support lesser-included offense

instruction because evidence that appellant claimed could prove lesser offense

actually proved a separate crime from offense for which appellant was charged). [2]

We overrule appellant = s first issue.

III. Sufficiency of the Evidence

In his second and third issues, appellant contends the

evidence is legally and factually insufficient to show that he caused the death

of the complainant by striking him with a baseball bat or an unknown object.

In reviewing a legal sufficiency challenge, we view the evidence in the light

most favorable to the verdict and determine whether a rational trier of fact

could have found the essential elements of the crime beyond a reasonable

doubt. Salinas , 163 S.W.3d at 737 . We accord great deference A to the

responsibility of the trier of fact [to fairly] resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic

facts to ultimate facts. @ Jackson v. Virginia , 443 U.S.

307, 319 (1979). We presume that any conflicting inferences from the evidence

were resolved by the jury in favor of the prosecution, and we defer to that

resolution. See id. at 326 .

In evaluating the factual sufficiency of the evidence, we

view all the evidence in a neutral light and will set aside the verdict only to

prevent manifest injustice. Watson v. State , 204 S.W.3d 404, 414 (Tex.

Crim. App. 2006). We apply a two-prong test to determine whether there is some

objective basis for finding that (1) the evidence in support of the jury = s verdict,

although legally sufficient, is nevertheless so weak that the verdict seems

clearly wrong and unjust, or (2) in considering conflicting evidence, the

verdict, albeit legally sufficient, is nevertheless against the great weight

and preponderance of the evidence. Id. at 414 B 15. Although a

factual sufficiency review authorizes an appellate court to act in the capacity

of a so‑called A thirteenth juror, @ due deference

must be accorded the fact finder = s determinations,

particularly those determinations concerning the weight and credibility of the

evidence. See id. at 416 B 17; Johnson v.

State , 23 S.W.3d 1, 9 (Tex. Crim. App. 2000).

Appellant argues the evidence is insufficient because at

trial the State presented evidence that appellant used a lamp as the murder

weapon, but the indictment and jury charge alleged that he used either a

baseball bat or an unknown object to murder the complainant. When multiple

theories are submitted to the jury, the evidence is sufficient to support a

conviction so long as the evidence is sufficient to support a conviction for

one of the theories submitted. Guevara v. State , 152 S.W.3d 45, 52

(Tex. Crim. App. 2004).

Robert Gutierrez, a crime scene investigator for the

Houston Police Department, testified that during the course of his

investigation, the officers determined that the complainant was bludgeoned to

death with a lamp. Crime scene pictures showed that a lamp covered with blood

was found next to the complainant = s body. Gutierrez

testified that he was able to compare the shape of the lamp base with the

complainant = s injuries. However, both Randy and Jesse, the

inmates in whom appellant confided, testified that appellant claimed he used a

baseball bat to kill the complainant and that he could tell the inmates where

the bat was hidden. Dr. Albert Chu, the medical examiner who performed the

autopsy on the complainant, testified that the cause of death was blunt force

head trauma caused by a blunt object. Dr. Chu also testified that either a

baseball bat or a lamp could have caused the injuries, but that he could not

tell from the injuries exactly what type of object was used.

The jury is the exclusive judge of the credibility of

witnesses and of the weight to be given testimony, and it is within the

exclusive province of the jury to reconcile conflicts in the evidence. Wesbrook

v. State , 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The jury may have

chosen to reconcile the conflict between Gutierrez = s testimony and

the inmates = testimony by concluding that the murder weapon was a

baseball bat. In addition, Dr. Chu testified that a baseball bat could have

caused the injuries. Because there is evidence from which a rational jury

could have determined that a baseball bat was used to murder the complainant,

and because this determination is not manifestly unjust, we conclude that the

evidence is legally and factually sufficient to support appellant = s conviction. See

Guevara , 152 S.W.3d at 52 ; Ledee v. State , No. 14‑04‑01018‑CR,

2005 WL 3359714 , at *2 (Tex. App. C Houston [14th

Dist.] Dec. 6, 2005, no pet.) (not designated for publication) (sustaining

conviction where indictment alleged defendant used either his A hands @ or an A unknown object @ because evidence

was sufficient to support one theory charged). We overrule appellant = s second and third

issues.

IV. Special Issue Regarding Use of a Deadly Weapon

In his fifth issue, appellant claims the trial court erred

in submitting a special issue regarding the use or exhibition of a deadly

weapon because appellant did not receive notice that the State intended to seek

a finding on the use of a deadly weapon. In his fourth issue, appellant claims

submission of the special issue amounted to an impermissible comment on the

weight of the evidence by the trial court.

A defendant is entitled to notice that the State will seek

an affirmative finding that a deadly weapon was used during the commission of

the charged crime. Brooks v. State , 847 S.W.2d 247, 248 (Tex. Crim.

App. 1993) (en banc) (per curiam). Such notice need not be contained in the

indictment under which the defendant is ultimately tried. Id. The

defendant is simply entitled to notice in writing that the use of a deadly

weapon will be a fact issue at the time of prosecution. Id. Here, the

indictment alleged that while in the course of committing or attempting to

commit a burglary of a habitation, appellant intentionally caused the death of

the complainant by striking the complainant with a baseball bat or an unknown

object. Any allegation that a death was caused by a named weapon or instrument

necessarily includes an allegation that the named weapon or instrument was

capable of causing death in the manner it was used. Ex parte Beck , 769

S.W.2d 525, 526 (Tex. Crim. App. 1989). Accordingly, the indictment gave

appellant sufficient notice that the State would attempt to prove that a

baseball bat or an unknown object was used as a deadly weapon. See id.

at 526 B 27 (holding

indictment charging appellant with causing death by shooting individual with a

gun provided sufficient notice that weapon alleged was a deadly weapon and that

appellant = s use of deadly weapon would be an issue in State = s murder

prosecution). We overrule appellant = s fifth issue.

Having determined that appellant received proper notice

that the State intended to seek a deadly weapon finding, we turn now to

appellant = s fourth issue. Appellant argues that the trial court

improperly commented on specific evidence by submitting a special issue

regarding the use or exhibition of a deadly weapon. The special issue

submitted to the jury read in part, A Do you the Jury

find beyond a reasonable doubt that the defendant used or exhibited a deadly

weapon, namely, a baseball bat or an unknown object, during the commission of

the offense for which he has been convicted . . . ? @ Appellant

contends that by ignoring the evidence that a lamp was possibly used as a

murder weapon, the trial court enhanced the credibility of the inmates who

testified that appellant admitted to using a baseball bat by telegraphing to

the jury that the trial court believed the inmates = testimony.

The jury charge should state the law applicable to the

case, without expressing or intimating any opinion as to the weight of the evidence

or the credibility of the statements made by the witnesses or the party

accused. See Tex. Code Crim.

Proc. Ann . art. 36.14 (Vernon 2007); Russell v. State , 749 S.W.2d

77, 78 (Tex. Crim. App. 1988). A charge improperly comments on the evidence if

it A assumes the truth

of a controverted issue. @ See Whaley v. State , 717 S.W.2d

26, 32 (Tex. Crim. App. 1986); Jackson v. State , 105 S.W.3d 321, 326

(Tex. App. C Houston [14th Dist.] 2003, pet. ref = d). Because

appellant did not timely object to the special issue at trial, the error, if

any, does not require reversal unless it was so egregious and created such harm

that appellant was denied a fair trial. Almanza v. State , 686 S.W.2d

157, 171 (Tex. Crim. App. 1984). When a complaint is made that the charge

comments on the weight of the evidence, we review the charge as a whole rather

than parts of the charge standing alone. See Whaley , 717 S.W.2d at 32 .

The actual degree of harm must be assayed in light of the entire jury charge,

the state of the evidence, including the contested issues and the weight of

probative evidence, the argument of counsel, and any other relevant information

revealed by the record of the trial as a whole. Almanza , 686 S.W.2d at

171 . Errors resulting in egregious harm are those that affect the very

basis of the case, deprive the defendant of a valuable right, or vitally affect

a defense theory. Hutch v. State , 922 S.W.2d 166, 171 (Tex. Crim. App.

1996).

The evidence shows that either a baseball bat or a lamp was

used to murder the complainant. Neither the prosecution nor the defense

mentioned the special issue during closing argument. The special issue defined

A deadly weapon @ for the jury and

asked the jury to determine whether appellant used or exhibited a baseball bat

or an unknown object in the murder of the complainant, tracking the language of

the indictment. The trial court made no other comments regarding the inmates = testimony or

emphasizing evidence that a baseball bat was used. Accordingly, we find that

the special issue merely directed the jury = s attention to the

fact that a baseball bat or an unknown object were the weapons for which the

State sought an affirmative finding, and the trial court did not impermissibly

comment on the weight of the evidence by not including a lamp as a possible

deadly weapon in the special issue. See Jackson v. State , No. 05‑06‑01127‑CR,

2008 WL 2548812 , at *2 (Tex. App. C Dallas June 26,

2008, no pet. h.) (mem. op., not designated for publication) (holding that

telling jury special issue instruction was on last page of jury charge was not

an impermissible comment on weight of evidence because trial court made no

statement showing bias in presentation of deadly weapon issue to jury); Hancock

v. State , No. 11‑95‑001‑CR, 1996 WL 33650186 , at *1 B 2 (Tex. App. C Eastland Jan. 17,

1996, no writ) (not designated for publication) (holding special issue that

tracked language of indictment and alleged appellant used A a bridge, a rock,

his fist, his foot or another object unknown @ to assault the

complainant did not inform jury that any particular weapon had been used and

therefore was not impermissible comment on weight of evidence).

Moreover, because a lamp was not mentioned in the

indictment, inclusion of a lamp as a possible murder weapon in the special

issue would actually have drawn attention to the evidence that a lamp was

used. Such an instruction would not have been neutral, and the trial court would

have improperly commented on the weight of the evidence by including the

instruction. See Matamoros v. State , 901 S.W.2d 470, 477 (Tex. Crim.

App. 1995) (stating in regard to denial of request for charge instruction on

DNA evidence reliability, A Even a seemingly neutral instruction about

a particular type of evidence constitutes an impermissible comment on the

weight of the evidence in violation of Art. 36.14 because such an instruction

singles out a particular piece of evidence for special attention. @ ); see also

Wilson v. State , No. 13‑04‑00298‑CR, 2007 WL 1559104 ,

at *2 (Tex. App. C Corpus Christi May 31, 2007, pet dism = d) (mem. op., not

designated for publication) (holding refusal of defendant = s request for jury

instruction that trial court was not vouching for accuracy of videotape played

into evidence was not error because such instruction was not neutral and

singled out videotape for special attention). We overrule appellant = s fourth issue.

We affirm the trial court = s judgment.

/s/ Leslie B. Yates

Justice

Judgment rendered

and Memorandum Opinion filed August 21, 2008.

Panel consists of

Justices Yates, Anderson, and Brown.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] A person commits capital murder if he intentionally

and knowingly causes the death of an individual while in the course of

committing or attempting to commit burglary. Tex.

Penal Code Ann . __ 19.02(b)(1), 19.03(a)(2) (Vernon 2003 & Supp.

2007).

[2] Appellant relies on Curtis v. State , 89

S.W.3d 163, 179 (Tex. App. C Fort Worth

2002, pet. ref = d) for his argument that he was entitled to a

lesser-included offense instruction on burglary of a habitation. The defendant

in Curtis was convicted of capital murder. Id. at 166 . On

appeal, the court found that because evidence showed the defendant could have

sexually assaulted the complainant days or hours before her murder and that

more than one person had entered the complainant = s apartment the night of the murder, the trial court should have

instructed the jury on the lesser-included offenses of sexual assault and

aggravated sexual assault. Id. at 179 . Curtis is distinguishable

because unlike the instant case, the defendant in Curtis claimed he had

committed a lesser version of the crime for which he was charged. Id. at

178 . In contrast, appellant claims he is completely innocent of the crime for

which he was charged, capital murder on December 9, 2005, and argues instead

that he is guilty of a separate offense for which he was not charged, burglary

on December 8, 2005. We therefore find appellant = s reliance on Curtis misplaced.