Shawn Smith v. State

• Court: Court of Appeals of Texas
• Decided: January 8, 2015
• Docket: 06-14-00156-CR
• Status: Published

Opinion

ACCEPTED 06-14-00156-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 1/7/2015 9:17:06 AM DEBBIE AUTREY CLERK

No. 06-14-0156-CR FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS IN THE SIXTH COURT OF APPEALS 1/8/2015 4:34:00 PM DEBBIE AUTREY at TEXARKANA Clerk

________________________________________________

SHAWN SMITH, Appellant

vs.

STATE OF TEXAS, Appellee ________________________________________________

Appeal from the District Court of Bowie County, Texas 102nd Judicial District

APPELLANT’S BRIEF _________________________________________________

Troy Hornsby

Miller, James, Miller & Hornsby, L.L.P. 1725 Galleria Oaks Drive Texarkana, Texas 75503 troy.hornsby@gmail.com 903.794.2711, f. 903.792.1276

Attorney for Appellant Shawn Smith

Oral Argument Requested IDENTITY OF PARTIES AND COUNSEL

Pursuant to Texas Rule of Appellate Procedure 38.1(a), the following is a

complete list of all parties to the trial court’s judgment and the names and

addresses of all trial and appellate counsel:

Appellant Smith’s appellate counsel

Shawn Smith Troy Hornsby Miller, James, Miller, & Hornsby, LLP 1725 Galleria Oaks Drive Texarkana, Texas 75503

Smith’s trial counsel

Will Williams Bowie Co. Public Defender's Office 424 W. Broad Street Texarkana, Texas 75501

Appellee State's counsel

State of Texas Kelley Gossett Crisp Bowie County Dist. Attorney's Office 601 Main Street Texarkana, Texas 75501

2 TABLE OF CONTENTS

Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Statement of Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Issue 1: Count 4 of the indictment, alleging injury to a child, was fundamentally defective due to the omission of the required causation element. . . . . . . . . . . . . . . . . . . . . . . . . 17

Preservation of Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Law and Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Harmful Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Issue 2: Count 1 of the indictment, alleging aggravated sexual assault (of a child), was defective because of the State's failure to delineate a specific aggravating factor. . . . . . . 23

Preservation of Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Law and Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Harmful Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

3 Issue 3: Smith did not voluntarily absent himself from the punishment phase of the trial because guards, rather than medical necessity, prevented Smith from attending . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Preservation of Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Law and Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Harmful Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Issue 4: The court admitted a DNA testing report without allowing Smith the opportunity to cross examine the serologist who actually conducted the testing. Accordingly, Smith was denied his right to confrontation guaranteed by the Sixth Amendment . . . . . . . . . . . . . . . . 40

Preservation of Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Law and Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Harmful Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

4 INDEX OF AUTHORITIES

CASES: PAGE

Amaya v. State, 551 S.W.2d 385 (Tex. Crim. App. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . 28

American Plant Corporation v. State, 508 S.W.2d 598 (Tex. Crim. App. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . 28

Ashley v. State, 404 S.W.3d 672 (Tex. App.—El Paso 2013, no pet.) . . . . . . . . . . . . . . . 35

Bath v. State, 951 S.W.2d 11 (Tex. App.—Corpus Christi 1997, pet. ref'd) . . . . . . . 38

Bird v. State, 527 S.W.2d 891 (Tex. Crim. App. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . 22

Bledsoe v. State, 936 S.W.2d 350 (Tex. App.—El Paso 1996, no writ) . . . . . . . . . . . . . . 39

Bottom v. State, 860 S.W.2d 266 (Tex. App.—Fort Worth 1993, no pet.) . . . . . . 35,36-7

Brem v. State, 571 S.W.2d 314 (Tex. Crim. App. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . 29

Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . 31

Coleman v. State, 643 S.W.2d 124 (Tex. Crim. App. 1982) . . . . . . . . . . . . . . . . . . . . . . 28,29

Cook v. State, 902 S.W.2d 471 (Tex. Crim. App. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . 18

Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) . . . . . . . . . . . . . . . 42

Drumm v. State, 560 S.W.2d 944 (Tex. Crim. App. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . 28

5 Duron v. State, 956 S.W.2d 547 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . 18

Ex Parte Mathis, 571 S.W.2d 186 (Tex. Crim. App. 1978) . . . . . . . . . . . . . . . . . . . . . . 19,21

Ferguson v. State, 622 S.W.2d 846 (Tex. Crim. App. 1980)(en banc) . . . . . . . . . . . . . . 28,29

Gorman v. State, 634 S.W.2d 681 (Tex. Crim. App. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . 28

Grizzard v. State, No. 01-06-00930-CR (Tex. App.—Houston [1st Dist.] July 3, 2008, no pet.)(mem. op) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35,37

Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . . . . 19,24

Hamilton v. State, 300 S.W.3d 14 (Tex. App.—San Antonio 2009, pet. ref'd) . . . . . . 42,43

Heard v. State, 887 S.W.2d 94 (Tex. App.—Texarkana 1994, pet. ref'd) . . . . . . . . 35,37

Hodges v. State, 116 S.W.3d 289 (Tex. App.—Corpus Christi 2003, pet. ref'd) . . . . . . 38

Hudson v. State, 128 S.W.3d 367 (Tex. App.—Texarkana 2004, no pet.) . . . . . . . . . . . . 33

In re Commitment of Young, 410 S.W.3d 542 (Tex. App.—Beaumont 2013, no pet.) . . . . . . . . . . . . 38

Jasper v. State, 61 S.W.3d 413 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Johnson v. State, 623 S.W.2d 654 (Tex. Crim. App. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . 29

Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998) . . . . . . . . . . . . . . . . . 21,30,38,43

6 Johnson v. State, 43 S.W.3d 1 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . 21,22,30,31,38,43

King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . 21,30,38,43

Maines v. State, 170 S.W.3d 149 (Tex. App.—Eastland 2005, no pet.) . . . . . . . . . . 35,37

May v. State, 618 S.W.2d 333 (Tex. Crim. App. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . 28

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) . . . . . . . . . . . . . . 42

Miller v. State, 692 S.W.2d 88 (Tex. Crim. App. 1985) (en banc) . . . . . . . . . . . . . . 34,35

Moore v. State, 670 S.W.2d 259 (Tex. Crim. App. 1984) (en banc) . . . . . . . . . . . . . . . . 33

Nam Hoai Le v. State, 963 S.W.2d 838 (Tex. App.—Corpus Christi 1998, pet. ref'd) . . . . . . 18

Papakostas v. State, 145 S.W.3d 723 (Tex. App.—Corpus Christi 2004, no pet.) . . . . . . . . 33

Sanchez v. State, 182 S.W.3d 34 (Tex. App.—San Antonio 2005), aff'd, 209 S.W.3d 117 (Tex. Crim. App. 2006) . . . . . . . . . . . . . . . . . . . . 31

Schutz v. State, 63 S.W.3d 442 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . . . 21,30,38,43

Smith v. State, 309 S.W.3d 10 (Tex. Crim. App. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . 31

State v. Mays, 967 S.W.2d 404 (Tex. Crim. App. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . 27

State v. Moff, 154 S.W.3d 599 (Tex. Crim. App. 2004) . . . . . . . . . . . . . . . . . . . . . . 18,24

7 Sumrell v. State, 326 S.W.3d 621 (Tex. App.—Dallas 2009), pet. dism'd improvidently granted, 320 S.W.3d 338 (Tex. Crim. App. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . 39

Taylor v. United States, 414 U.S. 17 (1973) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Tollett v. State, 219 S.W.3d 593 (Tex. App.—Texarkana 2007, pet. ref’d) . . . . . . . . . 31

Tullous v. State, 23 S.W.3d 195 (Tex. App.—Waco 2000, pet. ref’d) . . . . . . . . . . . . . . . 29

United States v. Bearden, 423 F.2d 805 (5th Cir. 1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

United States v. Ramirez, 233 F.3d 318 (5th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Wall v. State, 184 S.W.3d 730 (Tex. Crim. App. 2006) . . . . . . . . . . . . . . . . . . . . . . . 40-1

Walters v. State, 777 S.W.2d 734 (Tex. App.—Beaumont 1989, pet. ref’d) . . . . . . . 29,30

Watson v. State, 548 S.W.2d 676 (Tex. Crim. App. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . 29

Weber v. State, 829 S.W.2d 394 (Tex. App.—Beaumont 1992, no pet.) . . . . . . . . . . . . 39

CONSTITUTIONS:

Tex. Const. art. I, § 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19,25

Tex. Const. art. V, § 12(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

STATUTES AND RULES:

Tex. Code Crim. Proc. Ann. art. 1.14(b) (West 2005) . . . . . . . . . . . . . . . . 17,23

8 Tex. Code Crim. Proc. Ann. art. 21.02(7) (West 2009) . . . . . . . . . . . . . . . 19,25

Tex. Code Crim. Proc. Ann. art. 21.03 (West 2009) . . . . . . . . . . . . . . . . . 19,25

Tex. Code Crim. Proc. Ann. art. 21.12 (West 2009) . . . . . . . . . . . . . . . . . . . . 28

Tex. Code Crim. Proc. Ann. art. 21.19 (West 2009) . . . . . . . . . . . . . . . . . . . . 31

Tex. Code Crim. Proc. Ann. art. 21.21(7) (West 2009) . . . . . . . . . . . . . . . 19,25

Tex. Code Crim. Proc. Ann. art. 33.03 (West 2006) . . . . . . . . . . . . . . . . . 34,35

Tex. Pen. Code Ann. §1.07 (a)(1) (West supp. 2014) . . . . . . . . . . . . . . . . . . . 26

Tex. Pen. Code Ann. §22.021 (West supp. 2014) . . . . . . . . . . . . . . . . . 25,26,27

Tex. Pen. Code Ann. §22.04 (West 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . 19,20

Tex. R. App. P. 33.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17,23,32,40

Tex. R. App. P. 44.2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21,30,31,38,43

9 STATEMENT OF THE CASE

Nature of case: This is an appeal from a conviction for the following:

(Count 1) aggravated sexual assault (of a child) Tex. Pen. Code §22.021 (C.R. pg. 366)

(Count 2) indecency with a child (by sexual contact) Tex. Pen. Code §21.11 (C.R. pg. 368)

(Count 3) assault (family violence) [lesser included] Tex. Pen. Code §22.01 (C.R. pg. 370)

(Count 4) injury to a child Tex. Pen. Code §22.04. (C.R. pg. 372)

(Count 5) acquitted (C.R. pg. 326)

(Count 6) acquitted (C.R. pg. 327)

(Count 7) indecency with a child (by sexual contact) Tex. Pen. Code §21.11 (C.R. pg. 376)

Judge/Court: Judge Bobby Lockhart, 102nd District Court of Bowie County, Texas. (C.R. pg. 366,368,376,370,372).

Pleas: Shawn Smith (Smith) entered pleas of “not guilty” to all of the allegations against him.(C.R. pg. 366,368,376,370, 372)(R.R. vol. 15 pg. 7-12).

Trial disposition: The case was tried to a jury which found Smith guilty of only these five offenses and recommended the following sentences:

(Count 1) aggravated sexual assault (of a child) 99 years (C.R. pg. 366)

(Count 2) indecency with a child (by sexual contact) 99 years (C.R. pg. 368)

(Count 3) assault (family violence) one year (C.R. pg. 370)

(Count 4) injury to a child

10 25 years (C.R. pg. 372)

(Count 7) indecency with a child (by sexual contact) 99 years (C.R. pg. 376)

The court imposed those sentences with counts 1, 3 and 4 to run consecutively and counts 2 and 7 running consecutively. (C.R. pg. 366,368,376,370,372).

11 ISSUES PRESENTED

Issue 1: Count 4 of the indictment, alleging injury to a child, was fundamentally defective due to the omission of the required causation element.

Issue 2: Count 1 of the indictment, alleging aggravated sexual assault (of a child), was defective because of the State’s failure to delineate a specific aggravating factor.

Issue 3: Smith did not voluntarily absent himself from the punishment phase of the trial because guards, rather than medical necessity, prevented Smith from attending.

Issue 4: The court admitted a DNA testing report without allowing Smith the opportunity to cross examine the serologist who actually conducted the testing. Accordingly, Smith was denied his right to confrontation guaranteed by the Sixth Amendment.

12 STATEMENT OF ORAL ARGUMENT

Oral argument might assist the court in considering the multiple

aggravating factors in count 1 and the underlying facts of Smith’s alleged

voluntary absenting himself from the trial.

13 STATEMENT OF FACTS

It is undisputed that Shawn Smith (Smith) and Shelby Jones (victim’s

pseudonym used in the indictments) both believed that Smith was Shelby

Jones’s natural father. (R.R. vol. 16 pg. 124). Shelby Jones was 14 years old

(R.R. vol. 16 pg. 124) and lived with Smith at Smith’s mother’s home. (R.R.

vol. 16 pg. 125).

The State alleges that on January 19, Smith digitally penetrated

Shelby Jones. (R.R. vol. 16 pg. 128-9). Additionally, on January 24, Smith

struck Shelby Jones and threatened her life, then had vaginal intercourse

with Shelby Jones. (R.R. vol. 16 pg. 131-6).

Smith denies the sexual assault allegations. (R.R. vol. 17 pg. 239-240).

Smith admits to spanking Shelby Jones (R.R. vol. 17 pg. 188) and argues

that Shelby Jones fabricated the allegations in an attempt to get away from

Smith. (R.R. vol. 17 pg. 18). Smith contends that he is not Shelby Jones’

father. (R.R. vol. 16 pg. 33).

14 SUMMARY OF THE ARGUMENT

Issue 1: Count 4 of the indictment, alleging injury to a child, was fundamentally defective due to the omission of the required causation element.

In count 4 of the indictment against Smith, alleging injury to a child,

the State omitted the required causation element. This omission from the

charging instrument is fundamental error because it does not charge Smith

with the commission of injury to a child on the face of the charging

instrument.

Issue 2: Count 1 of the indictment, alleging aggravated sexual assault (of a child), was defective because of the State's failure to delineate a specific aggravating factor.

Count 1 of the indictment against Smith failed to delineate a specific

aggravating factor escalating sexual assault to aggravated sexual assault,

out of the nine potential aggravating factors addressed in the indictment.

Although it is generally not necessary for the State to specifically allege any

particular aggravating factor, here the offense could have been aggravated

in nine different ways. Therefore, a failure to delineate the particular

aggravating factor deprived Smith of fair notice of the alleged offense.

Accordingly, count 1 of the indictment was insufficient.

15 Issue 3: Smith did not voluntarily absent himself from the punishment phase of the trial because guards, rather than medical necessity, prevented Smith from attending.

Smith was not present at trial to receive the guilt-innocence verdict,

nor was he present to attend or testify during the punishment phase. The

appellate record may establish that Smith initially voluntarily absented

himself from the guilt-innocence phase of the trial due to a suicide attempt.

However, the appellate record does not establish that Smith continued to

voluntarily absent during the punishment phase of the trial. Rather, the

appellate record establishes that the guards, rather than the medical

necessity of treatment, prevented Smith from attending the punishment

phase of the trial.

Issue 4: The court admitted a DNA testing report without allowing Smith the opportunity to cross examine the serologist who actually conducted the testing. Accordingly, Smith was denied his right to confrontation guaranteed by the Sixth Amendment.

The court admitted a DNA testing report which was testimonial in

nature implicating Smith’s Sixth Amendment right to confrontation.

However, that right was violated when Smith was denied the opportunity

to cross examine the serologist who actually conducted the testing.

16 ARGUMENT

Issue 1: Count 4 of indictment, alleging injury to a child, was fundamentally defective due to the omission of the required causation element.

In count 4 of the indictment against Smith, alleging injury to a child,

the State omitted the required causation element. This omission from the

charging instrument is fundamental error because it does not charge Smith

with the commission of injury to a child on the face of the charging

Preservation of Error

To preserve a complaint for appellate review, a party must generally

have presented to the trial court a timely request, objection, or motion that

states the specific grounds for the desired ruling, if they are not apparent

from the context of the request, objection, or motion. See Tex. R. App. P.

33.1(a). More specifically, article 1.14(b) of the Texas Code of Criminal

Procedure provides:

If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal.

Tex. Code Crim. Proc. Ann. art. 1.14(b) (West 2005).

Although Smith objected to the indictment, Smith did not object to

the indictment on this basis. Therefore, Smith is forced to argue

17 fundamental error.

To show fundamental error, a party must show that the charging

instrument is so deficient that it fails to confer jurisdiction upon the court

to render a conviction. Nam Hoai Le v. State, 963 S.W.2d 838, 843 (Tex.

App.—Corpus Christi 1998, pet. ref'd). A charging instrument is sufficient

to convey jurisdiction if it charges a specific person with the commission of

an offense which is apparent from the face of the charging instrument. Id.;

see also Duron v. State, 956 S.W.2d 547, 549-50 (Tex. Crim. App. 1997).

Further, an indictment is constitutionally defective only if it is so defective

that it no longer serves as an indictment. See Tex. Const. art. V, § 12(b); Cook

v. State, 902 S.W.2d 471, 476 (Tex. Crim. App. 1995). The crime must be

alleged in the indictment with enough specificity and clarity that the

defendant can identify the penal statute under which the state intends to

prosecute. Duron v. State, 956 S.W.2d 547, 550 (Tex. Crim. App. 1997).

Finally and most specifically, in Ex Parte Marthis, the Texas Court of

Criminal Appeals concluded that a complaint as to the omission of a

necessary element to an indictment may be urged for the first time after

trial. 571 S.W.2d 186 (Tex. Crim. App.1978).

Standard of Review

The sufficiency of an indictment is a question of law. State v. Moff,

154 S.W.3d 599, 601 (Tex. Crim. App. 2004). When the resolution of a

18 question of law does not turn on an evaluation of the credibility and

demeanor of a witness, then the trial court is not in a better position to

make the determination, and appellate courts should conduct a de novo

review of the issue. Id.; see Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.

App. 1997).

Law and Application

In count 4 of the indictment against Smith, alleging injury to a child,

the State omitted the required causation element. This omission from the

charging instrument is fundamental error because it does not charge Smith

with the commission of injury to a child on the face of the charging

Texas Code of Criminal Procedure Article 21.03 provides “everything

should be stated in an indictment which is necessary to be proved.” Tex.

Code Crim. Proc. Ann. art. 21.03; see also art. 21.02(7), art. 21.21(7) (West

2009). This stems from the constitutional right of an accused “to demand

the nature and cause of the accusation.” Tex. Const. art. I, § 10. If an

element of an offense is omitted, then the indictment fails to allege an

offense. Ex parte Mathis, 571 S.W.2d 186 (Tex. Crim. App.1978).

Texas Penal Code section 22.04 provides in relevant part as follows:

Injury to a Child, Elderly Individual, or Disabled Individual

(a) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act

19 or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual: (1) serious bodily injury; (2) serious mental deficiency, impairment, or injury; or (3) bodily injury. . . .

Tex. Pen. Code Ann. §22.04 (West 2011). Thus, injury to a child requires the

State to allege the actor (1) intentionally, knowingly, recklessly, or with

criminal negligence (2a) by act, or (2b) or intentionally, knowingly, or

recklessly by omission, (3) causes, (4) to a child, elderly individual, or

disabled individual, (5a) serious bodily injury, (5b) serious mental

deficiency, impairment, or injury, or (5c) bodily injury. Id.

Here, the State alleged elements 1, 2a, 4 and 5c, but omitted element

3, the causation element. (C.R. pg. 36). The indictment against Smith reads

in relevant part as follows:

Count Four - Injury to a Child

And it is further presented in and to said Court that heretofore on or about January 19, 2013, the said Shawn Lewis Smith, did then and there intentionally or knowingly bodily injury to Shelby Jones (a pseudonym), a child who was then and there 14 years of age or younger, by beating Shelby Jones (a pseudonym) with a belt.

(C.R. pg. 36). This indictment against Smith alleges all the necessary

elements of injury to a child with the exception of causation. See Tex. Pen.

Code Ann. §22.04 (West 2011). It specifies that (1) "Shawn Lewis smith",

(2) “intentionally or knowingly”, (3) "by beating", (4) "Shelby Jones (a

20 pseudonym), a child . . . 14 years of age or younger", and (4) bodily injury.

(C.R. pg. 36). Accordingly, the indictment against Smith alleges everything

"which is necessary to be proved" to allege injury to a child with the

exception of causation.

If an element of an offense is omitted, then the indictment fails to

allege an offense. Ex parte Mathis, 571 S.W.2d 186 (Tex. Crim. App. 1978).

Here, the omission of the causation element causes the indictment to fail to

allege the offense of injury to a child and renders the indictment

fundamentally defective.

Harmful Error

An error must affect the substantial rights of the accused to be

harmful. See Tex. R. App. P. 44.2(b). A "substantial right" is affected when

the error had a substantial and injurious effect or influence in determining

the jury's verdict. King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997)

(citing Tex. R. App. P. 44.2(b)). Alternatively, error is harmless if the error

"did not influence the jury, or had but a slight effect." Johnson v. State, 967

S.W.2d 410, 417 (Tex. Crim. App. 1998). The appellant does not bear the

burden to establish such harmful error. Schutz v. State, 63 S.W.3d 442, 444

(Tex. Crim. App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App.

2001). Rather, it is the responsibility of the appellate court to assess harm

after reviewing the record. Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim.

21 App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).

However, a harmless error analysis is not necessary if the error was

fundamental. See, e.g., Bird v. State, 527 S.W.2d 891, 894 (Tex. Crim. App.

1975). As argued above under Law and Application, the omission of the

causation element is fundamental error.

22 Issue 2: Count 1 of the indictment, alleging aggravated sexual assault (of a child), was defective because of the State’s failure to delineate a specific aggravating factor.

Count 1 of the indictment against Smith failed to delineate a specific

aggravating factor escalating sexual assault to aggravated sexual assault,

out of the nine potential aggravating factors addressed in the indictment.

Although it is generally not necessary for the State to specifically allege any

particular aggravating factor, here the offense could have been aggravated

in nine different ways. Therefore, a failure to delineate the particular

aggravating factor deprived Smith of fair notice of the alleged offense.

To preserve a complaint for appellate review, a party must generally

have presented to the trial court a timely request, objection, or motion that

states the specific grounds for the desired ruling, if they are not apparent

from the context of the request, objection, or motion. See Tex. R. App. P.

33.1(a). More specifically, article 1.14(b) of the Texas Code of Criminal

If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal.

Tex. Code Crim. Proc. Ann. art. 1.14(b) (West 205).

23 Here, Smith filed a motion to quash the indictment arguing that the

indictment against Smith included eight possible aggravating factors and

sought specificity in this regard. (C.R. pg. 281). That motion was overruled

by the trial court. (R.R. vol. 14 pg. 13). Accordingly, this issue was

preserved for appellate review.

The sufficiency of an indictment is a question of law. State v. Moff,

154 S.W.3d 599, 601 (Tex. Crim. App. 2004). When the resolution of a

question of law does not turn on an evaluation of the credibility and

demeanor of a witness, then the trial court is not in a better position to

make the determination, and appellate courts should conduct a de novo

review of the issue. Id.; see Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.

Count 1 of the indictment against Smith failed to delineate a specific

aggravating factor escalating sexual assault to aggravated sexual assault,

out of the nine potential aggravating factors addressed in the indictment.

Although it is generally not necessary for the State to specifically allege any

particular aggravating factor, here the offense could have been aggravated

in nine different ways. Therefore, a failure to delineate the particular

24 aggravating factor deprived Smith of fair notice of the alleged offense.

Texas Code of Criminal Procedure Article 21.03 provides “everything

should be stated in an indictment which is necessary to be proved.” Tex.

Code Crim. Proc. Ann. art. 21.03 (West 2009); see also Tex. Code Crim. Proc.

Ann. art. 21.02(7) and 21.21(7) (West 2009). This stems from the

constitutional right of an accused “to demand the nature and cause of the

accusation.” Tex. Const. art. I, § 10. In order to meet constitutional muster

under the Fifth and Sixth Amendments, "it is well settled that an

indictment must set forth the offense with sufficient clarity and certainty to

apprise the accused of the crime with which he is charged." United States v.

Bearden, 423 F.2d 805, 810 (5th Cir. 1970) (citations omitted). The test for

sufficiency is "not whether the indictment could have been framed in a

more satisfactory manner, but whether it conforms to minimum

constitutional standards" but that it "contains the elements of the offense

charged and fairly informs a defendant of the charge against which he

must defend, and, second, enables him to plead an acquittal or conviction

in bar of future prosecutions for the same offense." United States v. Ramirez,

233 F.3d 318, 323 (5th Cir. 2000).

Texas Penal Code section 22.021 establishes aggravated sexual

assault and provides in relevant part as follows:

25 Aggravated Sexual Assault

(a) A person commits an offense: (1) if the person: . . . (B) intentionally or knowingly: (i) causes the penetration of the anus or sexual organ of a child by any means; . . . and (2) if: (A) the person: . . . (ii) by acts or words places the victim in fear that death, serious bodily injury, or kidnapping will be imminently inflicted on any person; (iii) by acts or words occurring in the presence of the victim threatens to cause the death, serious bodily injury, or kidnapping of any person; (B) the victim is younger than 14 years of age; or . . .

Tex. Pen. Code Ann. §22.021 (West supp. 2014). Additionally, "act" is

defined as "bodily movement, whether voluntary or involuntary, and

includes speech." Tex. Pen. Code Ann. §1.07 (a)(1) (West supp. 2014).

Here, count 1 of the indictment against Smith reads in relevant part

as follows:

. . . SHAWN SMITH . . . intentionally or knowingly cause the penetration of the sexual organ of Shelby Jones (a pseudonym), a child who was then and there younger than 11 years of age, by defendant's sexual organ, and the defendant did then and there by acts or words threaten to cause, or place, Shelby Jones (a pseudonym) in fear that death would be imminently inflicted on Shelby Jones (a pseudonym) and said acts or words occurred in the presence of Shelby Jones (a pseudonym).

(C.R. pg. 35)(bold and underlines removed). This indictment against Smith

26 alleges all the necessary elements of aggravated sexual assault of a child.

See Tex. Pen. Code Ann. § 22.021 (West supp. 2014).

However, as alleged in the indictment, the offense of sexual assault

could have been potentially aggravated in nine different ways:

(1) by "voluntary bodily movement" places the victim in fear that death would be imminently inflicted on her,

(2) by "involuntary bodily movement" places the victim in fear that death would be imminently inflicted on her,

(3) by "speech" places the victim in fear that death would be imminently inflicted on her,

(4) by "word" places the victim in fear that death would be imminently inflicted on her,

(5) by "voluntary bodily movement" occurring in the presence of the victim threatens to cause the victim’s death,

(6) by "involuntary bodily movement" occurring in the presence of the victim threatens to cause the victim’s death,

(7) by "speech" occurring in the presence of the victim threatens to cause the victim’s death,

(8) by "word" occurring in the presence of the victim threatens to cause the victim’s death, or

(9) the victim is younger than 14 years of age.

Generally, an information which tracks the statutory language will

provide adequate notice. State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim.

App. 1998). More specifically, an information need not set forth facts

which are "merely evidentiary in nature." State v. Mays, 967 S.W.2d 404,

406 (Tex. Crim. App. 1998). However, when a defendant properly raises

27 the issue and the "statute denouncing the offense permits conviction on

more than one set of circumstances, the accused is not required to

anticipate any and all variant facts the State might hypothetically seek to

establish . . . " Ferguson v. State, 622 S.W.2d 846 (Tex. Crim. App. 1980)(en

banc)(citing Drumm v. State, 560 S.W.2d 944, 947 (Tex. Crim. App. 1977)).

In such a situation, a defendant may insist on "a specific allegation of what

the State will rely upon." Ferguson v. State, 622 S.W.2d 846 (Tex. Crim. App.

1980)(en banc)(citing Amaya v. State, 551 S.W.2d 385, 387 (Tex. Crim. App.

1977)).

For example, in Coleman v. State, the Texas Court of Criminal Appeals

addressed a similar situation. 643 S.W.2d 124, 125 (Tex. Crim. App. 1982).

There, the State alleged theft "by appropriation" which was challenged by a

motion to quash seeking clarification. Id. at 125. The court concluded that

generally, if the word or term is defined by statute, it need not be further

clarified in the charging instrument. Id. at 125 (citing Tex. Code Crim. Proc.

Ann. art. 21.12 (West 2009), American Plant Corporation v. State, 508 S.W.2d

598 (Tex. Crim. App. 1974), and May v. State, 618 S.W.2d 333 (Tex. Crim.

App. 1981)). However, if a word or term in a charging instrument goes to

an act or omission of the defendant, the word or term must be further

clarified by the State. Id. (citing Gorman v. State, 634 S.W.2d 681, (Tex. Crim.

App. 1982)).

Here, the indictment included nine potential aggravating factors.

28 Thus, pursuant to Ferguson v. State, Smith requested a specific allegation.

622 S.W.2d 846 (Tex. Crim. App. 1980)(en banc). More specifically, the

term "act" is defined by statute, but goes to an act or omission of the

defendant, and therefore, should have been clarified by the State. Coleman

v. State, 643 S.W.2d 124, 125 (Tex. Crim. App. 1982).

At trial, the State directed the court to several cases where courts did

not require more specific allegations. In Tullous v. State, the Waco Court of

appeals did not require more specificity where there were three potential

uses of "force" under the statute. 23 S.W.3d 195 (Tex. App.—Waco 2000,

pet. ref’d). In Brem v. State, the Texas Court fo Criminal Appeals concluded

that the State need not specify the means of "force and threats" aggravating

the offense. Brem v. State, 571 S.W.2d 314 (Tex. Crim. App. 1978); see also

Johnson v. State, 623 S.W.2d 654, 655 (Tex. Crim. App. 1981) and Watson v.

State, 548 S.W.2d 676, 678-79 (Tex. Crim. App. 1977). Finally, in Walters v.

State, the court concluded that the failure to specify the aggravating factor

was not fundamental error. 777 S.W.2d 734 (Tex. App.—Beaumont 1989,

pet. ref’d).

However, in these cases advanced by the State there were at most

three potential factors. Tullous v. State, 23 S.W.3d 195 (Tex. App.—Waco

2000, pet. ref’d) (three potential uses of force); Brem v. State, 571 S.W.2d 314

(Tex. Crim. App. 1978)(two: force or threats); see also Johnson v. State, 623

S.W.2d 654, 655 (Tex. Crim. App. 1981)(two: force or threats) and Watson v.

29 State, 548 S.W.2d 676, 678-79 (Tex. Crim. App. 1977)(two: force or threats).

Here, we are addressing nine potential factors which is substantially more

complicated than the three in the cases addressed by the State. Finally,

Walters v. State addressed fundamental error, which is inapplicable to this

case, where Smith preserved the issue by a motion to quash. 777 S.W.2d

734 (Tex. App.—Beaumont 1989, pet. ref’d).

The State’s inclusion of nine potential aggravating factors failed to

put Smith on sufficient notice to prepare his defense. Accordingly, this

court should conclude the indictment should have been quashed.

An error must affect the substantial rights of the accused to be

harmful. See Tex. R. App. P. 44.2(b). A "substantial right" is affected when

the error had a substantial and injurious effect or influence in determining

the jury's verdict. King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997) citing

Tex. R. App. P. 44.2(b). Alternatively, error is harmless if the error "did not

influence the jury, or had but a slight effect." Johnson v. State, 967 S.W.2d

410, 417 (Tex. Crim. App. 1998). The appellant does not bear the burden to

establish such harmful error. Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim.

App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001). Rather,

it is the responsibility of the appellate court to assess harm after reviewing

the record. Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001);

30 Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).

More specifically Texas Code of Criminal Procedure 21.19 provides

as follows for errors in form:

An indictment shall not be held insufficient, nor shall the trial, judgment, or other proceedings thereon be affected, by reason of any defect of form which does not prejudice the substantial rights of the defendant.

Tex. Code Crim. Proc. Ann. art. 21.19 (West 2009). However, Texas Code

of Criminal Procedure 21.19 is inapplicable to errors of substance. Sanchez

v. State, 182 S.W.3d 34 (Tex. App.—San Antonio 2005), aff'd, 209 S.W.3d 117

(Tex. Crim. App. 2006). This court has concluded that errors of substance

are subject to harmless error analysis under Texas Rule of Appellate

Procedure 44.2. Tollett v. State, 219 S.W.3d 593 (Tex. App.—Texarkana

2007, pet. ref’d) (citing Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App.

1997)). However, the Texas Court of Criminal Appeals has not yet

addressed this issue. See Smith v. State, 309 S.W.3d 10 (Tex. Crim. App.

2010).

Here, the State alleged nine possible aggravating factors. The failure

to delineate which of the nine potential aggravating factors on which the

State intended to rely failed to put Smith on sufficient notice to prepare his

defense. For this reason, Smith suffered harmful error from the State’s

failure to specify the aggravating factor on which it intended to rely.

31 Issue 3: Smith did not voluntarily absent himself from the punishment phase of the trial because guards, rather than medical necessity, prevented Smith from attending.

Smith was not present at trial to receive the guilt-innocence verdict,

nor was he present to attend or testify during the punishment phase. The

appellate record may establish that Smith initially voluntarily absented

himself from the guilt-innocence phase of the trial due to a suicide attempt.

However, the appellate record does not establish that Smith continued to

voluntarily absent during the punishment phase of the trial. Rather, the

appellate record establishes that the guards, rather than the medical

necessity of treatment, prevented Smith from attending the punishment

To preserve a complaint for appellate review, a party must generally

have presented to the trial court a timely request, objection, or motion that

states the specific grounds for the desired ruling, if they are not apparent

from the context of the request, objection, or motion. See Tex. R. App. P.

33.1(a). Here, Smith’s trial attorney objected to the guilt innocence phase

of the trial continuing and the punishment phase beginning without being

physically present, arguing that Smith had not voluntarily absented

himself from the trial. (R.R. vol. 19 pg. 4-7). Regardless, the trial court

continued with the trial. (R.R. vol. 19 pg. 8). Therefore, this issue was

32 preserved for appellate review.

An appellate court should review the trial court's determination that

a defendant is voluntarily absent for abuse of discretion. Papakostas v. State,

145 S.W.3d 723, 725 n.2 (Tex. App.—Corpus Christi 2004, no pet.) (citing

Moore v. State, 670 S.W.2d 259, 261 (Tex. Crim. App. 1984) (en banc)). In

most cases, appellate courts must determine from hindsight the validity of

the trial court's voluntariness determination. Hudson v. State, 128 S.W.3d

367, 375 (Tex. App.—Texarkana 2004, no pet.). In this review, courts are

not limited only to the record before the trial court at the time of its ruling.

Moore v. State, 670 S.W.2d 259, 261 (Tex. Crim. App. 1984). As long as there

is "some evidence" supporting the trial court's determination, we will not

disturb the ruling absent evidence from the defendant showing that his

absence was involuntary. Moore v. State, 670 S.W.2d 259, 261 (Tex. Crim.

App. 1984).

Smith was not present at trial to receive the guilt-innocence verdict,

nor was he present to attend or testify during the punishment phase. The

appellate record may establish that Smith initially voluntarily absented

himself from the guilt-innocence phase of the trial due to a suicide attempt.

33 However, the appellate record does not establish that Smith continued to

voluntarily absent during the punishment phase of the trial. Rather, the

appellate record establishes that the guards, rather than the medical

necessity of treatment, prevented Smith from attending the punishment

The State contends that after closing arguments in the guilt-

innocence phase of the trial ended on August 18, but before the jury

reached a verdict on August 19, Smith crawled into a "pipe chase" area in

the jail to attempt to hang himself. (R.R. vol. 19 pg. 4-6). During the

attempt, Smith broke a bone in his knee. (R.R. vol. 19 pg. 4-6). Smith was

admitted to a hospital on the morning of August 19. (R.R. vol. 19 pg. 4-6).

The trial court concluded that Smith had voluntarily absented

himself from the trial and proceeded to receive the verdict on August 19.

(R.R. vol. 19 pg. 7). The court then immediately proceeded to the

punishment phase of the trial with Smith still not present. (R.R. vol. 20 pg.

5).

A criminal defendant has a right under the state and federal

constitutions to be present during all phases of the trial. Miller v. State,

692 S.W.2d 88, 90 (Tex. Crim. App. 1985) (en banc) (citing Taylor v. United

States, 414 U.S. 17, 20 (1973) (per curiam)). Article 33.03 of the Texas Code

of Criminal Procedure provides that when a case is to be tried to a jury, the

defendant must be present, at least until the jury has been empaneled and

34 sworn. Tex. Code Crim. Proc. Ann. art. 33.03 (West 2006). However, the

defendant can forfeit his right to be present by voluntarily absenting

himself after the jury is sworn. Miller v. State, 692 S.W.2d 88, 90 (Tex. Crim.

App. 1985) (en banc); see Ashley v. State, 404 S.W.3d 672, 681 (Tex. App.—El

Paso 2013, no pet.) (observing that "the right to be present until the

selection of the jury cannot be waived," but that it does not violate the

defendant's rights to proceed with the trial if the defendant voluntarily

absents himself after the jury is selected).

For example, a defendant has been found to have voluntarily

absented himself because of a medical emergency resulting when the

defendant ingested large quantities of aspirin and arthritis medication.

Bottom v. State, 860 S.W.2d 266, 267 (Tex. App.—Fort Worth 1993, no pet.).

Additionally, a defendant has been found to have voluntarily absented

himself when he attempted suicide by ingestion of prescription drugs.

Grizzard v. State, No. 01-06-00930-CR (Tex. App.—Houston [1st Dist.] July

3, 2008, no pet)(mem. op). Finally, self-induced intoxication has been

found to be voluntarily absenting. Maines v. State, 170 S.W.3d 149, 150

(Tex. App.—Eastland 2005, no pet.); Heard v. State, 887 S.W.2d 94, 98-99

(Tex. App.—Texarkana 1994, pet. ref'd)(self-induced intoxication).

Here, The appellate record establishes that, at least initially, Smith

voluntarily absented himself from the trial on the morning of August 19.

At approximately 9:45 a.m. on the morning of August 19, the court bailiff

35 testified that he had spoken to jail officials who notified him that on

August 18 or 19, Smith crawled into a "pipe chase" area in the jail to

attempt to hang himself. (R.R. vol. 19 pg. 4-6). During the attempt, Smith

broke a bone in his knee. (R.R. vol. 19 pg. 4-6). Smith was admitted to a

hospital on August 19. (R.R. vol. 19 pg. 4-6, vol. 20 pg. 99). The court

proceeded in the case and received the jury’s verdict immediately

thereafter with Smith not present. (R.R. vol. 19 pg. 7-12). This testimony is

some evidence that Smith voluntarily absented himself from the trial

because Smith had to be taken to the hospital for treatment.

However, the trial court also proceeded on to the punishment phase

of the trial, also without Smith being present. (R.R. vol. 20 pg. 5, 97-101).

The defense contended that Smith had not voluntarily absented himself

from the punishment phase of the trial. (R.R. vol. 20 pg. 98). Specifically

Smith’s trial attorney represented to the court the he spoke to Smith and

contended that Smith was not free to leave the hospital because Smith was

under guard. (R.R. vol. 20 pg. 98). Thus, at that point, the evidence was

that the reason that Smith was absent form the trial was not because he had

to receive medical treatment, but because the guards would not allow him

to leave the hospital and go to the trial. Stated another way, the evidence

was that the State would not allow Smith to refuse medical treatment.

The State will presumably direct the court’s attention to the other

absenting cases with similar grounds. See e.g. Bottom v. State, 860 S.W.2d

36 266, 267 (Tex. App.—Fort Worth 1993, no pet.); Grizzard v. State,

01-06-00930-CR (Tex. App.—Houston [1st Dist.] July 3, 2008, no pet.)(mem.

op); Maines v. State, 170 S.W.3d 149, 150 (Tex. App.—Eastland 2005, no

pet.); Heard v. State, 887 S.W.2d 94, 98-99 (Tex. App.—Texarkana 1994, pet.

ref'd). The State will argue that like those cases, Smith’s voluntary actions

resulted in him not being present.

However, in this case we have a strong differentiating factor. In the

other cases, the evidence and resulting implication was that the defendants

could not be present because they had to receive medical treatment. Here,

the evidence was the opposite: that although Smith was injured, he was

willing and able to forego further treatment and attend trial but was

prevented from attending trial not by the injury or treatment, but by the

guards who kept him at the hospital.

Accordingly, there is evidence in the appellate record that Smith’s

attempted suicide resulted in his broken knee and being taken to the

hospital. However, there is also evidence in the appellate record that

Smith remained at the hospital against his will and wanted to forego

further treatment in order to attend the trial. Regardless, Smith was not

able to do so, not because of the broken knee, but because he was at the

hospital against his will.

37 Harmful Error

An error must affect the substantial rights of the accused to be

harmful. See Tex. R. App. P. 44.2(b). A "substantial right" is affected when

the error had a substantial and injurious effect or influence in determining

the jury's verdict. King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997)

(citing Tex. R. App. P. 44.2(b)). Alternatively, error is harmless if the error

"did not influence the jury, or had but a slight effect." Johnson v. State, 967

S.W.2d 410, 417 (Tex. Crim. App. 1998). The appellant does not bear the

burden to establish such harmful error. Schutz v. State, 63 S.W.3d 442, 444

(Tex. Crim. App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App.

2001). Rather, it is the responsibility of the appellate court to assess harm

after reviewing the record. Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim.

App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).

Some courts have interpreted this to mean that a defendant must

establish that presence at the missed portion of the trial bears a reasonably

substantial relationship to the opportunity to defend the case. See e.g. In re

Commitment of Young, 410 S.W.3d 542, 553 (Tex. App.—Beaumont 2013, no

pet.)(citing Jasper v. State, 61 S.W.3d 413, 422-24 (Tex. Crim. App.2001)

(defendant's absence when jurors' excuses heard was harmless); Hodges v.

State, 116 S.W.3d 289, 296-97 (Tex. App.—Corpus Christi 2003, pet. ref'd)

(defendant's absence during peremptory strikes harmless where defendant

later waived jury); Bath v. State, 951 S.W.2d 11, 22-23 (Tex. App.—Corpus

38 Christi 1997, pet. ref'd) (defendant's absence when venire member

qualified and juror exemptions heard was harmless); Weber v. State, 829

S.W.2d 394, 395-97 (Tex. App.—Beaumont 1992, no pet.) (defendant's

absence when juror excuses heard was harmless); Sumrell v. State, 326

S.W.3d 621, 624-27 (Tex. App.—Dallas 2009), pet. dism'd improvidently

granted, 320 S.W.3d 338 (Tex. Crim. App. 2010) (defendant's absence during

individual questioning of jurors who expressed bias was harmful); Bledsoe

v. State, 936 S.W.2d 350, 351 (Tex. App.—El Paso 1996, no writ)

(defendant's absence during individual voir dire was harmful).

Here, the defense desired to call Smith to testify during the

punishment phase of the trial. (R.R. vol. 20 pg. 126). However, because

Smith was not present, he could not testify. (R.R. vol. 20 pg. 126).

Accordingly, Smith’s absence during the punishment phase of the trial

certainly bore a substantial relationship to the opportunity to defend the

case.

39 Issue 4: The court admitted a DNA testing report without allowing Smith the opportunity to cross examine the serologist who actually conducted the testing. Accordingly, Smith was denied his right to confrontation guaranteed by the Sixth Amendment.

The court admitted a DNA testing report which was testimonial in

nature implicating Smith’s Sixth Amendment right to confrontation.

However, that right was violated when Smith was denied the opportunity

to cross examine the serologist who actually conducted the testing.

To preserve a complaint for appellate review, a party must generally

have presented to the trial court a timely request, objection, or motion that

states the specific grounds for the desired ruling, if they are not apparent

from the context of the request, objection, or motion. See Tex. R. App. P.

33.1(a). Smith objected, and later renewed the same objection, to the DNA

testing results being admitted on the testimony of a forensic scientist

supervisor, as opposed to the serologist who conducted the actual DNA

testing. (R.R. vol. 15 pg. 183, vol. 16 pg. 5). That objection was overruled

both times. (R.R. vol. 15 pg. 184, vol. 16 pg. 6).

An appellate court should review de novo the trial court's ruling

admitting evidence over a confrontation objection. See Wall v. State, 184

40 S.W.3d 730, 742 (Tex. Crim. App. 2006).

The court admitted a DNA testing report which was testimonial in

nature implicating Smith’s Sixth Amendment right to confrontation.

However, that right was violated when Smith was denied the opportunity

to cross examine the serologist who actually conducted the testing.

The State admitted a DNA testing report linking Smith to sexual

contact with Shelby Jones. (R.R. vol. 22 Ex. 15). In support of the DNA

testing report, the State presented the testimony of Kristy Link, a DPS

crime lab DNA section supervisor. (R.R. vol. 15 pg. 177-179). Link testified

that the lab received known DNA samples from Shelby Jones and Smith

and compared them against DNA samples obtained from Shelby Jones in

her sexual assault examination. (R.R. vol. 15 pg. 181-187). Link testified

that she was the supervisor, but was assisted by at least two other people.

(R.R. vol. 15 pg. 182-4). More specifically, Link testified that she did not do

the serology testing personally, she merely supervised an employee who

did so. (R.R. vol. 15 pg. 187). Link then developed the DNA profiles which

were passed on to an analyst. (R.R. vol. 15 pg. 186).

Smith complained that he was unable to cross examine the serologist

who actually performed the test. (R.R. vol. 15 pg. 183, vol. 16 pg. 5).

Therefore, the issue presented is whether Smith should be allowed to cross

41 examine the serologist who actually performed the serology testing, or was

Smith’s cross examination of the supervisor of the person who actually

conducted the testing sufficient confrontation.

A defendant has a Sixth Amendment constitutional right to confront

the witnesses against him for evidence which is testimonial in nature.

Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177

(2004). In Hamilton v. State, the San Antonio court of appeals concluded

that DNA test reports were testimonial in nature and therefore implicated

the defendant’s Sixth Amendment confrontation right. Hamilton v. State,

300 S.W.3d 14, 21 (Tex. App.—San Antonio 2009, pet. ref'd)(citing

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314

(2009)). Likewise, the DNA testing results in this case are testimonial in

nature and implicated Smith’s Sixth Amendment confrontation rights.

The next issue to address is whether Smith’s confrontation right was

satisfied by the supervisor of the serology testing as opposed to the actual

person who performed the serology testing. In Hamilton v. State, the San

Antonio court of appeals concluded that a supervisor’s testimony as to the

findings of a non-testifying serologist and DNA analyst was error. 300

S.W.3d 14, 22 (Tex. App.—San Antonio 2009, pet. ref'd). Here then, as in

Hamilton, the court erred in allowing Link to testify in lieu of the actual

person who performed the serology testing.

42 Harmful Error

An error must affect the substantial rights of the accused to be

harmful. See Tex. R. App. P. 44.2(b). A "substantial right" is affected when

the error had a substantial and injurious effect or influence in determining

the jury's verdict. King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997)

(citing Tex. R. App. P. 44.2(b)). Alternatively, error is harmless if the error

"did not influence the jury, or had but a slight effect." Johnson v. State, 967

S.W.2d 410, 417 (Tex. Crim. App. 1998). The appellant does not bear the

burden to establish such harmful error. Schutz v. State, 63 S.W.3d 442, 444

(Tex. Crim. App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App.

2001). Rather, it is the responsibility of the appellate court to assess harm

after reviewing the record. Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim.

App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).

In such an analysis, the court should consider (1) the importance of

the evidence to the State's case; (2) whether the evidence was cumulative of

other evidence; (3) the presence or absence of other evidence corroborating

or contradicting the evidence on material points; and (4) the overall

strength of the State's case. Hamilton v. State, 300 S.W.3d 14, 22 (Tex.

App.—San Antonio 2009, pet. ref'd). Additionally, the court should

consider any other factor in the record that may shed light on the probable

impact of the trial court's error on the minds of average jurors. Hamilton v.

State, 300 S.W.3d 14, 22 (Tex. App.—San Antonio 2009, pet. ref'd).

43 The DNA test report was the most important evidence in the case

against Smith. Shelby Jones testified as to the sexual assault. (R.R. vol. 16

pg. 123-157). This allegation was denied by Smith. (R.R. vol. 17 pg. 239-

240). Thus, the only objective direct evidence to support Shelby Jones’

claims was the DNA test results. (R.R. vol. 22 ex. 10). As such, the

erroneous inclusion of such evidence was extremely prejudicial to Smith.

44 PRAYER

WHEREFORE, premises considered, Shawn Smith respectfully

requests that this conviction be reversed and judgment rendered in his

favor, that the conviction be reversed and a new trial granted, or for such

other and further relief to which Appellant may be entitled.

Respectfully Submitted,

Miller, James, Miller & Hornsby, L.L.P.

By:______________________________ Troy Hornsby Texas Bar Number 00790919

1725 Galleria Oaks Drive Texarkana, Texas 75503 troy.hornsby@gmail.com 903.794.2711, f. 903.792.1276

45 CERTIFICATE OF SERVICE

This is to certify that on January 7, 2015, a true and correct copy of the above and foregoing Appellant’s Brief has been forwarded by U.S. mail on all counsel of record and interested party listed below:

Appellant State's Attorney Shawn Smith Kelley Gossett Crisp TDC #01950344 Bowie County Dist. Atty's Office Byrd Unit 601 Main Street 21 FM 247 Texarkana, Texas 75501 Huntsville, Texas 77320 Defendant's Trial Attorney Trial Court Judge Will Williams Honorable Bobby Lockhart Bowie County 102nd District Judge Public Defender's Office Bi-State Justice Building 424 W. Broad Street 100 North State Line Avenue Texarkana, Texas 75501 Texarkana, Texas 75501

___________________________________ Troy Hornsby

46 CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4, the undersigned counsel certifies that, exclusive of the exempted portions in Texas Rule of Appellate Procedure 9.4(i)(1), this brief contains 6,873 words (less than 15,000), based upon the word count of the WordPerfect program used to prepare the document.

_______________________________ Troy Hornsby