494 S.W.3d 243
Tex. App.2015Background
- Shawn Smith was convicted by a jury of two counts of indecency with a child (sexual contact), one count of aggravated sexual assault of a child, one count of injury to a child, and one count of assault causing bodily injury; sentences ranged from 1 year to 99 years.
- Count 4 (injury to a child) omitted the word "caused" after the mens rea in alleging Smith "intentionally or knowingly [sic] bodily injury to" the child by beating her with a belt.
- Count 1 (aggravated sexual assault) tracked §22.021 and alleged Smith "intentionally or knowingly cause the penetration" and by "acts or words" threatened to cause the victim’s death. Smith moved to quash arguing lack of specificity.
- After the guilt phase Smith attempted suicide, was hospitalized, and did not appear in court for the punishment-phase testimony; the trial court concluded he voluntarily absented himself and proceeded.
- A Crime Lab DNA report prepared by serologist Gloria Ruiz was admitted after Ruiz testified; Smith had earlier objected that the serologist who did the testing was not confronted but did not maintain a Confrontation Clause objection at the time the report was offered (he objected only on hearsay grounds).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether indictment for injury to a child was fundamentally defective for omitting the word "caused" | Smith: omission of "caused" omits causation element and deprives court of jurisdiction | State: indictment names the offense, tracks statute, and gives notice; omission is non-fundamental/forfeitable | Overruled — not fundamentally defective; defendant waived form/substance challenge by not timely objecting |
| 2. Whether the aggravated-sexual-assault count should be quashed for lack of notice of what "acts or words" were alleged | Smith: indictment alleged multiple possible aggravating theories; insufficient specificity to prepare defense | State: indictment tracked statutory language (§22.021(a)(2)(A)(ii)) and provided adequate notice; statutes/precedent allow statutory wording without evidentiary detail | Overruled — indictment was adequate and defendant had notice of State’s theory from interrogation statements |
| 3. Whether proceeding with punishment phase in Smith’s absence violated right to be present | Smith: hospitalization/guarding made absence involuntary and court abused discretion in proceeding | State: trial court found absence voluntary (suicide attempt, hospital admission); defendant forfeited right by voluntary absence | Overruled — trial court did not abuse discretion in finding voluntary absence given record; no contrary evidence preserved |
| 4. Whether admission of DNA lab report violated Confrontation Clause | Smith: lab report should be excluded because he was denied right to confront serologist who did testing | State: serologist who prepared report (Ruiz) testified and was cross-examined; defendant only objected on hearsay when report offered | Overruled — Confrontation Clause claim not preserved: objection at offer was hearsay-only, earlier Confrontation claim was not renewed when report offered |
Key Cases Cited
- Mantooth v. State, 269 S.W.3d 68 (Tex. App.—Texarkana 2008) (indictment sufficient to identify penal statute even if defective)
- Teal v. State, 230 S.W.3d 172 (Tex. Crim. App. 2007) (indictment defects are waivable; charging instrument invokes jurisdiction)
- Smith v. State, 297 S.W.3d 260 (Tex. Crim. App. 2009) (constitutional notice requirement for indictments)
- Mays v. State, 967 S.W.2d 404 (Tex. Crim. App. 1998) (tracking statutory language ordinarily satisfies pleading requirements)
- Watson v. State, 548 S.W.2d 676 (Tex. Crim. App. 1977) (general statutory terms like "force"/"threats" in indictments can provide adequate notice)
- Illinois v. Allen, 397 U.S. 337 (1970) (defendant’s right to be present at every trial stage)
- Taylor v. United States, 414 U.S. 17 (1973) (defendant who voluntarily absents himself forfeits the right to be present)
- Reyna v. State, 168 S.W.3d 173 (Tex. Crim. App. 2005) (hearsay objection does not preserve Confrontation Clause complaint)