Smith v. State

968 S.W.2d 452, 1998 Tex. App. LEXIS 1900, 1998 WL 159798
Court of Appeals of Texas·Decided March 26, 1998·No. No. 07-97-0032-CR·Published·Cited by 8 cases

Opinion

REAVIS, Judge.

Upon a plea of not guilty, a Garza County jury found appellant Jerry T. Smith guilty of murder, although the victim’s body was never recovered and no physical evidence of the crime was ever found. After pleading true to an enhancement allegation, appellant’s punishment was assessed by the court at life in prison. By four points of error, appellant contends (1) & (2) the trial court erred in allowing the. State to introduce extraneous offense evidence during the guilt-innocence phase of trial, and (3) & (4) the evidence is legally and factually insufficient to sustain his conviction. We will affirm.

Before trial, the State gave notice of its intent to introduce extraneous offense evidence during the guilt-innocence phase of trial. After jury voir dire was complete, but before the jury was empaneled, a hearing was held regarding the admissibility of such evidence. No testimony was presented and the State did not identify who would testify to, which extraneous offenses. The State argued that an absence of physical evidence linking appellant to the murder created an essential need for it to introduce evidence that on numerous occasions, and while intoxicated, appellant had physically assaulted his father, his ex-wife, and the victim. Appellant objected to this evidence, asserting Texas Rules of Criminal Evidence 404(b) and 403. His objections were overruled, but the court granted his request for an instruction in the jury charge on the limited use of extraneous offense evidence.1

THE FACTS

At trial, the State’s evidence consisted of 25 exhibits and the testimony of 24 witnesses, including several friends and neighbors of the victim, her sister, her daughter, her postman, a former Mental Health and Mental Retardation (MHMR) worker assigned to monitor elderly members of the community, five present or former Garza County Sheriffs officials, appellant’s ex-wife, appellant’s former cellmate, to whom appellant made an extra-judicial confession, and an Assistant Tarrant County District Attorney. Appellant called four witnesses and proffered three exhibits.

The evidence adduced during the guilt-innocence phase of trial established that, before her disappearance on June 3, 1993, the victim, Edna Blodgett, a widow in her mid [455]*45570⅛, lived in a trailer house and was a longtime resident of the small community of Post. She owned a car, but had recently given up driving and often carried her small dog under her arm as she walked around town. She frequented many local establishments almost daily, including the sheriffs office, and was well known among local residents. According to witnesses, she enjoyed living in Post and took great pride in maintaining the garden around her home. She lived on approximately $600.00 in Social Security benefits and was described as being both “fiercely independent” and oriented to her surroundings. Several witnesses testified that the victim would have informed them if she had planned on leaving town, and that it was unlikely that the victim just wandered off. It was also opined however, by a non-expert witness, that the victim suffered from Primary Degenerative Dementia, “probably Alzheimer’s,” and sometimes appeared confused.2

Sometime in 1987, appellant, who was in his mid 40⅛, befriended the victim and eventually became her “part-time live-in boyfriend.” The record provides scarce insight into their relationship aside from exposing an abundance of physical abuse inflicted upon the victim by appellant while he was intoxicated.

References to appellant’s physical abuse of the victim began with the State’s first witness and continued throughout the guilt-innocence phase of trial. Witness after witness testified about how scared the victim was of appellant, and how she did not like to be around him when he was drinking, because he physically assaulted her by hitting and kicking her. Many witnesses recalled specific occasions when they observed bruises, scratches and abrasions on the face, arms, and legs of the victim, and one witness recalled observing more than one black eye. Another witness recalled picking the victim up at a convenience store in the middle of the night after she had been severely “beat up.” Still another recalled a night when the victim was so seared of appellant that she and her dog spent the night in the cab of a pickup truck.

Neighbors and fiiends alike testified that on numerous nights the victim showed up at their homes, battered and bruised, crying and scared, seeking refuge for the night because appellant was drunk and assaultive. Furthermore, the victim’s auto mechanic recalled her asking to store her car in his garage because appellant was drunk and she was fearful he would vandalize it.

Several of the same witnesses testified that they had been worried for the victim’s safety and believed she might “wind up” dead as a result of appellant's physical abuse. Many of these same witnesses opined that appellant’s violence was linked to his excessive consumption of alcohol, and that the level of his violence was escalating and likely to lead to a tragic ending.

Billy Timms, a former Garza County Sheriffs Deputy, described numerous domestic dispute calls from the victim. He recalled a specific occasion when he responded to an emergency call in which the victim claimed appellant had killed her dog. When he arrived he found the dead dog inside the victim’s house. From its appearance, and from the amount and pattern of blood on the wall and curtain, he opined that the dog had been kicked and stomped to death. Later the same day he responded to a second call in which the victim claimed appellant had smashed all the mirrors and windows out of her car with a two-by-four. Timms arrested appellant for criminal mischief after he found him on the victim’s couch with several glass cuts. Timms opined that women in these types of abusive relationships often “wind up” dead, and he recalled expressing his concern to the victim that she was going to get killed if she did not get away from appellant.

Finally, Timms testified to his familiarity with a September 1985 incident in which appellant severely beat his 75 year old fa[456]*456ther. The incident led to appellant’s conviction for injury to an elderly person. Through Timms’s testimony the State offered ten exhibits into evidence: eight photographs depicting various injuries to appellant’s father, a statement by appellant’s father in which he gave a detailed description of the beating, and a portion of a statement of facts in which appellant stipulated to the truth of his father’s assault allegations.3 When these ten exhibits were offered into evidence by the State, appellant’s counsel affirmatively stated that he had “no objection.” Minutes later however, appellant’s counsel made the only renewal of his pre-trial 404(b) and 403 objections.

Immediately after appellant’s counsel renewed his pre-trial objections, Joy Browning, who was married to appellant from February 1980 until March 1983, testified extensively to the physical abuse she suffered at the hands of appellant. She recalled the frequency with which appellant got drunk and then struck her, kicked her, and pulled her hair. She recalled a specific beating when her nose was broken and a tooth was knocked out, and a second incident when she was hurt so badly she was unable to work or climb stairs.

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Smith v. State, 968 S.W.2d 452, 1998 Tex. App. LEXIS 1900, 1998 WL 159798 (Tex. Ct. App. 1998).

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