Smallwood, Thomas Jefferson Jr., PD-1288-15

Background

Appellant Thomas J. Smallwood Jr. was charged in an 18‑count indictment (later narrowed) with nine offenses against his then‑stepdaughter: six counts of aggravated sexual assault of a child and three counts of sexual assault of a child, allegedly occurring from August–November 2012.
The aggravated counts alleged identical aggravating language: that the defendant "by acts or words" placed the victim in fear that "death or serious bodily injury would be imminently inflicted" on her or her mother.
The complainant testified to multiple sexual encounters (approximately 8–11) across the period and to statements by Smallwood about knowing Mexican mafia/assassins and telling a story about a man who raped and then killed a babysitter; she said threats were made “during” the period and that she was afraid.
Defense sought to admit (1) testimony from a neighbor (May) that he had heard the complainant made a prior false rape accusation, and (2) opinion testimony from two women (Redmon, Brown) that the complainant was untruthful; the trial court excluded these proffers under the Rules of Evidence.
Jury convicted on all nine counts; trial court sentenced concurrent 50‑year terms on the aggravated counts and 20‑year terms on the sexual‑assault counts. On appeal the Fort Worth Court of Appeals affirmed; appellant sought discretionary review arguing primarily legal insufficiency as to the aggravating element and erroneous exclusion/misstatements.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Smallwood)	Held
1) Sufficiency of evidence of the "imminent death/serious bodily injury" aggravator for six aggravated counts	State: Complainant's testimony about threats and Smallwood's references to Mexican mafia and the killing story, viewed over the continuing course of conduct, permitted a jury to find the threats were continuing and imminent as to the aggravated counts	Smallwood: Threats were conditional, vague, and not tied to specific discrete counts; the court of appeals should treat each indicted count as a separate event requiring proof of the aggravator beyond a reasonable doubt	Held: Affirmed — court viewed threats as part of a continuing course of conduct over an extended period; a rational juror could infer continuing imminent threats supporting the aggravated‑assault elements.
2) Alleged misstatement of law by State during voir dire	State: no response necessary on appeal; trial record lacks contemporaneous objection	Smallwood: Misstatements of law during voir dire violated constitutional rights and require reversal	Held: Not preserved — defendant failed to object at trial, so the claim was forfeited.
3) Exclusion of May's testimony about a rumored prior false rape accusation	State: Rumor evidence was hearsay, not reputation evidence or a 404(b) permissible prior‑act showing; no foundation for admissibility	Smallwood: The prior false‑accusation evidence was relevant to complainant's motive/credibility and admissible under Rule 404(b) or doctrine of chances	Held: Trial court did not abuse discretion — May's testimony was unsubstantiated rumor/hearsay and not admissible to show propensity; exclusion affirmed.
4) Exclusion of opinion evidence (Redmon, Brown) on complainant's truthfulness	State: Witnesses lacked personal knowledge for specific‑instance impeachment; 608(b)/412 and other rules barred the particularized attacks offered	Smallwood: Their opinion evidence on truthfulness was admissible impeachment relevant to credibility	Held: Not preserved/insufficiently specific and properly excluded — proffer failed to identify the evidentiary basis (rule or constitutional) with sufficient specificity; trial court did not abuse discretion.

Key Cases Cited

Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (legal‑sufficiency standard: evidence viewed in light most favorable to the verdict)
Blount v. State, 542 S.W.2d 164 (Tex. Crim. App. 1976) (threat to kill “if she told” held not an "imminent" threat for aggravated‑rape aggravator)
Hammer v. State, 296 S.W.3d 555 (Tex. Crim. App. 2009) (limits on impeachment with prior false‑accusation evidence in sexual‑assault prosecutions)
Davis v. Alaska, 415 U.S. 308 (U.S. 1974) (Confrontation Clause allows cross‑examination probing bias/motive; distinction from general‑credibility impeachment)
Reyna v. State, 168 S.W.3d 173 (Tex. Crim. App. 2005) (party‑responsibility rule for preservation of evidentiary/comstitutional challenges)
Dobbs v. State, 434 S.W.3d 166 (Tex. Crim. App. 2014) (application of Jackson standard in Texas sufficiency review)
Francis v. State, 36 S.W.3d 121 (Tex. Crim. App. 2000) (unanimity requirement and jury agreement on discrete incidents)