Larry Joe Smith v. State

                                   NO. 12-13-00033-CR

                           IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

LARRY JOE SMITH,                                  §      APPEAL FROM THE 114TH
APPELLANT

V.                                                §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                          §      SMITH COUNTY, TEXAS

                                   MEMORANDUM OPINION
       Larry Joe Smith appeals his conviction for murder. In two issues, Appellant challenges
the sufficiency of the evidence and the imposition of court costs. We affirm.


                                           BACKGROUND
       Appellant is the ex-husband of Ms. Sandra Greenhaw, who he shot and killed on the
evening of March 16, 2012. A Smith County grand jury indicted Appellant for the offense of
murder. Appellant pleaded ―not guilty‖ to the charge and claimed self-defense.
       A jury found Appellant guilty of murder and assessed his punishment at imprisonment for
forty-two years. This appeal followed.


                                 SUFFICIENCY OF THE EVIDENCE
       In his first issue, Appellant contends that the evidence ―is legally insufficient to support
the jury’s rejection of self-defense.‖ Specifically, he argues that the record establishes that he was
acting to defend himself, his home, and his property when he shot Greenhaw.
Standard of Review
       The issue of self-defense is a fact issue to be determined by the jury, and a jury’s verdict of
guilt is an implicit finding that it rejected a defendant’s self-defense theory. Saxton v. State, 

, 913–14 (Tex. Crim. App. 1991) (en banc). In reviewing the sufficiency of the
evidence to support the jury’s rejection of self-defense, we examine all of the evidence in the light
most favorable to the verdict to determine whether any rational trier of fact would have found the
essential elements of the offense and also would have found against the defendant on the self-
defense issue beyond a reasonable doubt. 

 (stating ―we look not to whether the [s]tate
presented evidence which refuted appellant’s self-defense‖); Sutton v. State, No. 12-04-00150-
CR, 

, at *3 (Tex. App.—Tyler 2006, pet. ref’d) (mem. op., not designated for
publication).
Applicable Law
       The use of deadly force is justified as self-defense under certain circumstances. Morales
v. State, 

 (Tex. Crim. App. 2011). An actor is justified in using deadly force
against another if (1) the actor would be justified in using force under Section 9.31 of the penal
code, and (2) when and to the degree the actor reasonably believes that deadly force is
immediately necessary to protect the actor against the other’s use or attempted use of unlawful
deadly force, or to prevent the other’s imminent commission of aggravated kidnapping, murder,
sexual assault, aggravated sexual assault, robbery, or aggravated robbery. See TEX. PENAL CODE
ANN. § 9.32(a) (West 2011).
       When a defendant raises self-defense, he bears the burden of producing some evidence to
support his defense. See Zuliani v. State, 

 (Tex. Crim. App. 2005) (citing
Saxton, 804 S.W.2d at 913–14); see also McCurdy v. State, No. 06-12-00206-CR, 

, at *3 (Tex. App.—Texarkana Sept. 26, 2013, pet. ref’d) (mem. op., not designated for
publication). Once the defendant produces some evidence supporting his defense, the state then
bears the burden of persuasion to ―disprove the raised defense.‖ Zuliani, 

; see
also Tidmore v. State, 

 (Tex. App.—Tyler 1998, pet. ref’d) (state does not
have burden of producing evidence to affirmatively refute self-defense).             The burden of
persuasion does not require the production of evidence; it requires only that the state prove its
case beyond a reasonable doubt. Zuliani, 

. Moreover, ―[d]efensive evidence
which is merely consistent with the physical evidence at the scene of the alleged offense will not
render the [s]tate’s evidence insufficient since the credibility determination of such evidence is
solely within the jury’s province[,] and the jury is free to accept or reject the defensive evidence.‖
Saxton, 

.



                                                  2
The Evidence
       The evidence is undisputed that Appellant shot and killed Sandra Greenhaw.                         At
approximately 11:23 p.m. on March 16, 2012, Appellant called 911 to report that he had shot an
individual who had attempted to break into his house. Appellant told the dispatcher he did not
know the individual and that ―he‖ was lying on the front porch. He explained that he was
watching television ―and somebody broke through the window.‖ The dispatcher asked Appellant,
―Did they break your window?‖ Appellant responded, ―Yes[,]‖ and further stated, ―I shot through
the window.‖
       The first three law enforcement officers who arrived at Appellant’s residence were Smith
County patrol deputies Bryce Hatton and Matthew Christian and patrol sergeant Jim Johnson.
Each testified that when they arrived, they saw Greenhaw lying on her back outside Appellant’s
residence. Deputy Hatton testified that it sounded as if Greenhaw was trying to breathe and that
she was lying ―closer towards the house‖ along the concrete slab near the house, with her head
positioned toward the door of the residence and her feet positioned ―away from the door.‖
       The record showed that Greenhaw was wearing a blue shirt and blue jeans, but no shoes.
Despite the fact that she was not wearing any shoes, several law enforcement officers testified that
the bottom of Greenhaw’s feet were clean.
       The record showed that when Sergeant Johnson checked Greenhaw’s pulse, it was ―very
faint.‖ By the time paramedics arrived, Greenhaw had agonal respirations, her heart was not
beating, and she no longer had a pulse. Greenhaw officially was pronounced dead at 12:34 a.m.
on March 17, 2012.
       Appellant’s Explanations
       Deputy Hatton testified that when he was dispatched to Appellant’s residence, ―the subject
had called in, and [reported] somebody had broke out his window and he had shot him.‖ As he
escorted Appellant to a patrol car, Appellant said, ―I shot them. They’re dead.‖ Deputy Christian
testified that Appellant explained that he was sitting in his recliner when he observed a male
subject break his window. Christian elaborated as follows:


       [W]henever [Appellant] said that he had seen somebody breaking into his residence, he shot them
       inside the residence. And then he said that—when I asked him how the body was still outside, and
       then [Appellant] said he doesn’t know.




                                                      3
When asked whether Appellant seemed confused about whom he had shot, Christian testified that
Appellant ―kept wanting to see—or he kept asking me if he could see the body. He wanted to
know who it was.‖
        Smith County Sheriff’s Office detective Kevin Fite testified that Appellant never changed
his position that he shot someone who was coming through the window. However, Detective Fite
further testified that his observations of the scene were not consistent with Appellant’s account.
And despite Appellant’s assertions to Deputy Christian that he wanted to know who he had shot,
Detective Fite testified that the patrol car’s camera recorded Appellant’s saying ―didn’t kill
Sandra.‖1 According to Detective Fite, Appellant made this statement before Greenhaw had been
identified.
        Detective Fite and Detective Dana interviewed Appellant on the night of the shooting. A
recording of the interview was played at trial. In the beginning of the interview, Appellant told
the detectives that he had not fired a weapon within the past twenty-four hours. Appellant also
told the detectives that he did not know why there were so many law enforcement officers at his
house that night. During the last fifteen minutes of the interview, Appellant asked, ―What do y’all
think I have done?‖ He later stated, ―If I hadn’t done nothing, let me out of here,‖ and ―I don’t
know what I did[.] I don’t know what y’all are talking about.‖
        On March 20, 2012, Detective Fite and Detective James Riggle interviewed Appellant.
The audio recording of this interview also was played at trial. In the interview, Appellant told the
detectives that he called 911 on the night of the shooting because he did not know where
Greenhaw was. He explained that he remembered Greenhaw’s coming to his house and their
―[getting] drunk,‖ but he did not remember shooting her. Appellant remembered law enforcement
officers telling him to put down his gun, but could not remember ever picking up the gun. He
stated, ―I remember shooting through the window[;] I thought someone [was] trying to come in
through the window.‖ Appellant told the detectives, ―I feel bad about this,‖ and called himself a
―stupid [] drunk.‖
        Appellant’s Residence
        The record reflects that there was no broken glass at Appellant’s residence. The window
through which Appellant claimed the alleged burglar attempted to enter was raised, and its screen


        1
          The record indicates that when Appellant made this statement, he was talking to himself and was not being
questioned.


                                                        4
was lying outside in a grassy area several feet away. Greenhaw’s gold Saturn was parked near
Appellant’s residence and was cold to the touch.2
        The evidence further showed that law enforcement officers found Greenhaw lying in a
pool of blood along a wet concrete pathway leading to the door of the residence. Detective Justin
Hall testified that there was ―a lot of water‖ near Greenhaw, and that the wetness on the concrete
had not been caused by rain.
        Detective Noel Martin, a criminalist for the Smith County Sheriff’s Office, could not
determine with certainty that the wetness on the concrete was caused by water, but he ruled out
the possibility of its being a blood stain, and testified that a water hose was found nearby.
Detective Martin looked for blood ―all over‖ the exterior of Appellant’s residence from the door
to the corner of the home, and testified that he looked also for scuff marks and other marks that
would have indicated an attempted entry through the window.                            He found no such marks.
Detective Martin further testified that he sprayed ―BlueStar‖ on the outside of the house and
window to detect any blood that could not be seen with the naked eye, but no blood was detected
on the exterior of Appellant’s residence.3
        The State introduced several photographs of Appellant’s residence at trial. Among these
exhibits was a photograph of a spent shotgun shell that was found between the seat cushion and
arm of a recliner inside Appellant’s living room. Another photographic exhibit was introduced
that showed a portion of Appellant’s living room where a pair of women’s sandals were on the
floor and a recliner and rocking chair were positioned next to a table that contained several items.4
The items on the table included a bottle of vodka, a two liter bottle of Coke, a beer can, cigarettes,
an ashtray, and Greenhaw’s car keys. Ultimately, the evidence showed that the sandals belonged
to Greenhaw, the Coke bottle had Greenhaw’s fingerprints, and the beer can and some of the
cigarettes contained Greenhaw’s DNA.
        The record reflects that no large amounts of blood were found inside Appellant’s
residence. Detective Martin testified that any blood located was confined to the area to the left of
the front window, to the wall, to a towel hanging on a rack located to the left of the window, and


        2
          Appellant’s neighbor, Holly Shaw, testified that she saw Greenhaw drive to Appellant’s residence in the
gold Saturn several hours before the shooting.
        3
            Bluestar is a chemical that fluoresces when it comes into contact with blood.
        4
            This photograph was admitted into evidence as State’s Exhibit 101.


                                                            5
to the inside of the window frame. He explained that not all of the blood was visible to the naked
eye. And the record reflects that blood and subcuatneous tissue was found in the left bottom
corner of the window sill, and a blue fiber from Greenhaw’s shirt was found inside the window
frame.
         The State admitted photographs showing the Bluestar reaction to blood found near the
windowsill and window frame. Detective Martin testified that the Bluestar showed a ―fine-
misting pattern‖ of blood. He explained that this was consistent with a gunshot wound because
the bullet produces a mist when it hits the blood source. Detective Martin testified that this
pattern is known as ―back spatter[,]‖ which is the projected blood produced when a gunshot hits a
blood source. He explained that blood is expelled from the wound back to the source or the
energy of the gun, is ―misty‖ in nature, and forms a conical shape.
         Detective Martin testified that the pattern of the blood spatter indicated that the blood
source was ―somewhere level with [the] windowsill or slightly below it‖ and the shooter was
standing above the blood source. Although Detective Martin could not determine exactly how
Greenhaw was positioned when she was shot, he explained that she was inside Appellant’s
residence, located to the left of the window, and positioned ―low.‖
         Detective Martin stated that the trajectory of the blood spatter and Greenhaw’s wound
negated the possibility that Appellant was sitting in the recliner or the rocking chair when he shot
Greenhaw. He further stated that the pattern of the blood spatter and the absence of blood drops
and blood stains on the window sill also negated the possibility that Greenhaw was leaning over
the window sill from the outside when she was shot. The pattern of the blood spatter, according
to Detective Martin, was inconsistent with the theory that Greenhaw was outside the residence
when Appellant shot her because, in that case, blood spatter would have been on the outside of the
building.
         The record reflects that there were no transfer stains or blood trails inside or outside of
Appellant’s residence. There was also no evidence that indicated Greenhaw was dragged from
inside the residence to where she was found by the officers. Detective Martin stated that it was
possible that Greenhaw was wrapped in something to prevent any blood from dripping and moved
outside of the residence.
         The record also reflects that the officers never found any bloody sleeping bags or other
materials that they suspected were used to move Greenhaw. Nevertheless, Detective Martin



                                                  6
testified that he was not surprised to see a lack of blood stains inside the residence because
staining depends on how the body falls. He explained that it is ―not uncommon to not find blood
trails associated with [the] victim’s moving due to the fact that [the victim] bleed[s] internally.‖
Detective Martin characterized the amount of blood at Appellant’s residence as ―very small‖
because Greenhaw bled internally.
       Greenhaw’s Cause of Death
       Dr. Tracy Dyer, a medical examiner and forensic pathologist for the Southwestern Institute
of Forensic Pathology, testified that Greenhaw’s death was caused by a gunshot wound. She
further testified that the plastic wadding from the shotgun shell was found inside Greenhaw’s liver
and metal pellets referred to throughout trial as ―birdshot‖ also were found inside her body. Dr.
Dyer stated that Greenhaw’s wound showed that the trajectory of the gunshot was ―downward[,]
front-to-back[,] and right-to-left.‖ She further stated that because the plastic wadding from the
shotgun shell was inside Greenhaw’s liver, Greenhaw was shot from a range of three to five feet.
       Dr. Dyer testified that, with gunshot wounds, ―you can never tell exactly where the blood
loss is going to occur.‖ She explained that while there would be blood loss around the edges of
the wound, if there is no exit wound, much of the bleeding can be retained internally. When asked
specifically about whether Greenhaw’s wound would have caused a lot of blood loss, Dr. Dyer
testified that she could not tell, noting that ―if she was l[y]ing flat on her back, there may not have
been a lot.‖ She explained further that the amount of blood loss might not be ―as much as you
might think if the person kind of ends up on [her] back and that wound is never sort of turned so
that gravity pours the blood out.‖
       Appellant’s Theory
       Louis L. Akin, crime scene expert for the defense, disagreed with Detective Martin’s
theory that Greenhaw had been in a low position inside Appellant’s residence when she was shot.
He proposed that the absence of blood evidence inside the residence and the large pool of blood
outside showed that Greenhaw was not moved. Akin explained that his theory was supported by
the fact that the blood stains on Greenhaw’s clothing were concentrated in one area and her torso
and other clothing were clean. He noted that had she been moved, the blood flow pattern on
Greenhaw’s body would have been different. He also stated that, had Greenhaw ―stood [up]‖
after being shot, the blood staining would have been more profuse, her ―blouse would have been
soaked, and it would have been soaked all the way down her pants.‖



                                                  7
        Akin testified that he believed Greenhaw was climbing through the window and was
partially inside the residence when she was shot. He explained that ―[s]hotguns make a mess,‖
which results in ―actual tissue that’s blown all over the place.‖ Thus, according to Akin, if
Greenhaw was crouched down inside the residence, it would be highly unlikely that tissue would
be found on the towel hanging next to the window. Instead, Akin submitted that it made more
sense for the subcutaneous tissue to be found on the towel if Greenhaw were leaning in the
window as she was attempting to enter the residence.
        Evidence Rebutting Appellant’s Theory
        Detective Martin testified that Akin’s theory was not supported by the evidence found at
Appellant’s residence. Specifically, he referred to a blood stain shown in a previously admitted
photograph.     Detective Martin explained that the upward trajectory of the blood stain
demonstrated that the blood source was ―below the window, right even with the windowsill.‖
Detective Martin testified that, under Akin’s theory, no such blood stain would have been
possible.
        Detective Martin also testified that, if Akin’s theory were correct, he would expect to see
(1) blood on the windowsill in the form of a large transfer stain from the wound as it dragged
across the windowsill, (2) transfer stains on the outside of the windowsill, (3) blood on the floor
inside the residence, (4) blood dripping down the wall, and (5) transfer stains where Greenhaw
fell.
        Detective Martin conceded that the lack of blood inside the residence was concerning. He
testified that he had no explanation for its absence, stating ―[t]here could have been something
covering the floor there that was removed‖ and ―there’s all kinds of variables and possible
scenarios, but we can speculate all day long.‖
        In addition to the crime scene evidence, the State elicited testimony from other witnesses
that tended to negate Appellant’s claim of self-defense. Appellant’s neighbor, Holly Shaw,
testified that Appellant had a history of getting very intoxicated. And the record reflects that
several hours after the shooting, Appellant had a blood alcohol concentration of 0.165, which is
greater than twice the legal definition for intoxication.
        Appellant’s son testified that he and Appellant had a disagreement in 2006, during which
Appellant, who was intoxicated, pointed a gun in his direction. Gerald Whittington, an
acquaintance of Appellant’s, testified that during a period of approximately two years, Appellant



                                                   8
would come to his house intoxicated. Whittington stated that he repeatedly asked Appellant not to
come to his house, but ―it didn’t do much good.‖ He further stated that Appellant came to his
house several times in one day during 2007 despite Whittington’s warning him not to come back
again. But when Appellant did come back to Whittington’s house, Whittington punched him, and
Appellant ―pulled a gun‖ and ―shot into the ground‖ in front of Whittington, telling him that ―he
would kill [him].‖
       Sammy Jaynes, one of Greenhaw’s ex-husbands and Appellant’s longtime friend, testified
that he had known Appellant for forty years.5 He further testified that he talked to Appellant about
having seen Greenhaw with ―a swelled up nose[.]‖ According to Jaynes, Appellant responded, ―I
wish I had killed the b----.‖ Jaynes stated that Appellant made this statement within the last ten
years. He stated that Appellant would talk ―like that‖ every time he ―got drunk[,]‖ and explained
that Appellant angers easily when he drinks.
       Brittany Jaynes, Appellant’s and Greenhaw’s granddaughter, lived with Appellant and
Greenhaw from 2000 through 2005. Brittany testified that during that time, she saw Appellant
punch, grab, throw, slap, and do ―stuff like that‖ to Greenhaw. She also testified that Appellant
described Sammy Jaynes as a ―s----- person,‖ and stated, ―If I could get away with shooting him
and your—Sandra Kay both, if I could get away with shooting both of them, I would do it.‖
       The record reflects that approximately two weeks before the shooting, Brittany’s then
boyfriend, Michael, was visiting Brittany at Sammy Jaynes’s house when he saw Appellant.
Michael testified that at the time, Appellant made the statement that ―if there was any way that he
could possibly get away with murdering [Greenhaw] or Sammy Jaynes that he would do it.‖
Michael explained that he did not take Appellant’s threat seriously because he thought Appellant
was ―just drunk,‖ but told Greenhaw about it the next evening nonetheless.
       Norma Smith, Appellant’s most recent ex-wife, testified that Appellant ―pulled a gun‖ on
her ―years ago, in 1969,‖ or later than that. She related that Appellant slapped her ―a few times‖
during their marriage, and that he gave her two black eyes after she obtained a restraining order
against him after their divorce.         Her testimony also revealed that Appellant was known to
verbalize threats to do certain things and was usually drinking when he would ―scatter the crowd
with his gun, I think.‖ However, Smith testified that prior to this occasion, Appellant had never



       5
           Sammy Jaynes was married to Greenhaw before she married Appellant.


                                                       9
shot anyone. She explained, ―I don’t think [Appellant’s] intent was ever to shoot anybody. I
remember thinking he might [do so] accidentally.‖
Discussion
       To accept Appellant’s claim of self-defense, the jury would have had to have found that
(1) he was justified under Section 9.31 of the penal code in using deadly force against Greenhaw
and (2) reasonably believed the deadly force was immediately necessary to protect himself against
Greenhaw’s use or attempted use of unlawful deadly force or Greenhaw’s imminent commission
of a crime. See TEX. PENAL CODE ANN. § 9.32(a). Appellant’s belief that deadly force was
immediately necessary is presumed to be reasonable if Appellant knew or had reason to believe
that Greenhaw unlawfully and with force entered, or was attempting to enter, Appellant’s
occupied habitation. See id. § 9.32(b)(1)(A).
       Appellant’s 911 phone call is evidence that he believed someone was attempting to
unlawfully enter his residence. See id. § 9.32(b)(1)(A). Appellant’s expert witness’s testimony
provided further support for Appellant’s belief that Greenhaw was attempting to enter his
residence. His expert testimony concerning (1) the absence of blood evidence inside Appellant’s
residence, (2) the concentration of blood stains being in one area of Greenhaw’s clothing, and (3)
the existence of subcutaneous tissue on the towel made it more likely that Greenhaw was shot as
she was coming through the window and was not later moved outside. But the weight given to
contradictory testimonial evidence is within the sole province of the jury because it turns on an
evaluation of credibility and demeanor. See Cain v. State, 

, 408–09 (Tex. Crim.
App. 1997) (en banc).
       To the contrary, the State’s expert witness testified that the pattern of blood spatter
indicated that Greenhaw was inside the residence when she was shot. This evidence, when
viewed in light of Appellant’s intoxication, his history of violence, his animosity toward
Greenhaw, his inconsistent accounts of what transpired that evening, and the fact that Greenhaw
had been drinking with Appellant that night permitted the jury to rationally conclude that it was
not reasonable for Appellant to believe that deadly force was immediately necessary because
Greenhaw did not unlawfully enter or attempt to unlawfully enter Appellant’s habitation with
force. See TEX. PENAL CODE ANN. § 9.32(a)(2), (b)(1)(A); Saxton, 

.
       After viewing the evidence in the light most favorable to the verdict, we conclude that a
rational jury could have found the essential elements of the offense and also could have found



                                                10
against Appellant on the self-defense issue beyond a reasonable doubt. See 

 Therefore, we
hold that the evidence is sufficient to support the jury’s implicit rejection of Appellant’s self-
defense claim. See 

 We overrule Appellant’s first issue.


                                         IMPOSITION OF COURT COSTS
         In his second issue, Appellant contends that the trial court erred by imposing court costs
and ordering that they be withdrawn from his inmate trust account without a bill of costs.
Standard of Review and Applicable Law
         The imposition of court costs upon a criminal defendant is a ―nonpunitive recoupment of
the costs of judicial resources expended in connection with the trial of the case.‖ Johnson v.
State, 

 (Tex. Crim. App. 2014). When the imposition of court costs is
challenged on appeal, we review the assessment of costs to determine if there is a basis for the
costs, not to determine if there is sufficient evidence offered at trial to prove each cost. 

         A bill of costs is not required to sustain statutorily authorized and assessed court costs, but
it is the most expedient and, therefore, preferable method. See 

. If a bill of costs is
omitted, one can be prepared and presented to the appellate court in a supplemental clerk’s record.
See 

.
Discussion
         After Appellant filed his brief, the record was supplemented with a bill of costs. See 

The amount reflected in the bill of costs corresponds with the costs reflected in the judgment.
Appellant does not challenge a specific cost or basis for the assessment of a particular cost.
Absent such a challenge, the bill of costs of record is sufficient to support the assessed costs in
this case. See 

. We overrule Appellant’s second issue.


                                                    DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the judgment of the trial
court.
                                                                  JAMES T. WORTHEN
                                                                     Chief Justice
Opinion delivered December 17, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.



                                               (DO NOT PUBLISH)


                                                           11
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                         DECEMBER 17, 2014


                                          NO. 12-13-00033-CR


                                       LARRY JOE SMITH,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                 Appeal from the 114th District Court
                         of Smith County, Texas (Tr.Ct.No. 114-0770-12)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.