Nicholas Leroy Smith v. State

Citation: Not availableDocket: 02-03-00319-CR

Court: Court of Appeals of Texas; November 23, 2004; Texas; State Appellate Court

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Nicholas Leroy Smith was convicted of aggravated robbery with a deadly weapon and sentenced to sixty years in prison and a fine of $10,000. He appealed on twelve grounds, including the trial court's denial of his motion for continuance and motion for new trial, objections to prosecutor comments, and a motion for mistrial based on those comments. The case involved an incident where Smith shot a sixty-year-old woman after demanding her purse, leading to her injuries and coma. After her recovery, she provided a sketch of the assailant, which led to Smith’s arrest following his bragging about the crime at a party. 

Smith argued that the prosecution's late disclosure of extraneous offenses violated his rights and warranted a continuance, as they provided notice only on the day of trial, twenty-three months after his initial request. He contended that the trial court erred by allowing extraneous offenses to be introduced in rebuttal, despite initially ruling them inadmissible in the State's case-in-chief. At the motion for continuance hearing, defense attorneys discussed the need for time to investigate the late-disclosed matters or a ruling to exclude them to proceed with the trial. The appellate court found that the trial court did not reversibly err and affirmed the judgment.

The trial court excluded Appellant's second statement and the firearms analysis certificates, as well as extraneous offenses from the State's case in chief. Appellant contended that the trial court erred by allowing extraneous offenses as rebuttal evidence, but his rule 404(b) request pertained only to the State's case in chief, not rebuttal. As he received the relief he sought, he was estopped from raising this issue on appeal, leading to the overruling of his first point. The second and third points were also overruled since they involved similar questions as the first.

In points four through twelve, Appellant challenged various remarks made by the prosecutor. In point four, Appellant objected to the prosecutor's statement implying that Appellant was aware he was caught, arguing it was outside the record and a comment on his right not to testify; the trial court overruled the objection. Point five addressed another prosecutor comment about Appellant's awareness of the jury, which Appellant claimed was a comment on his failure to testify; the trial court did not rule on this objection. In point six, Appellant objected to the prosecutor’s response to his previous objections, which was ultimately sustained by the trial court, instructing the jury to disregard but denying a mistrial.

In point seven, Appellant objected to the prosecutor's appeal to the emotional state of witnesses, which the trial court overruled. Point eight involved another statement by the prosecutor about Appellant being caught, which the trial court also overruled despite Appellant's objections. In point nine, a remark about Appellant's perceived motivations was objected to as a comment on his failure to testify; the court sustained the objection but denied a mistrial. Point ten raised concerns over the prosecutor calling Appellant the "Granny Killer," which the court sustained but again denied a mistrial. Lastly, in point eleven, Appellant objected to the prosecutor's claim about his remorse, which the court did not sustain and did not grant a mistrial.

Counsel objected to the prosecutor's comments regarding the Appellant's lack of remorse, arguing it was a direct reference to the Appellant's failure to testify. The prosecutor requested to strike the last sentence of her argument, but the trial court only instructed the jury to disregard the comment and denied the motion for mistrial. The Appellant also objected to a subsequent argument suggesting that the victims should have peace of mind, claiming it was unsupported by evidence of their fear. The trial court sustained this objection but again denied the motion for mistrial. The court determined that arguments summarizing evidence and making reasonable deductions from it are permissible, ruling that objections to arguments in points four, seven, and eight were properly overruled. However, the court found the arguments related to points five, six, nine, ten, eleven, and twelve improper and sustained the Appellant's objections. It concluded that the trial court's instruction to disregard was sufficient to remedy the harm from these improper arguments. The court affirmed the trial court's judgment after overruling all twelve of the Appellant's points.