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Smith v. State

Court of Criminal Appeals of Texas

July 3, 2019

JOSEPH ANTHONY SMITH, Appellant
v.
THE STATE OF TEXAS

          ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS HARRIS COUNTY

          Keasler, J., delivered the opinion of the Court, in which Keller, P.J., and Hervey, Richardson, Yeary, Newell, and Slaughter, JJ., joined. Walker, J., concurred. Keel, J., dissented.

          OPINION

          Keasler, J.

         In the punishment phase of his aggravated-robbery trial, Joseph Smith presented evidence that he suffers from a severe drug addiction. The State asked for, and received, an instruction stating that "[v]oluntary intoxication does not constitute a defense to the commission of a crime."[1] Smith argues that such an instruction is never appropriate in the punishment phase of trial. We hold that although it is within a trial judge's discretion to give a voluntary-intoxication instruction in the punishment phase, its application must be expressly limited to extraneous offenses. We reverse the court of appeals' judgment.

         I. BACKGROUND

         A jury found Smith guilty of aggravated robbery, a first-degree felony carrying a punishment range of 5 to 99 years or life in prison. In the punishment phase, the State presented evidence that, among other things, Smith had committed an extraneous capital murder. Smith's only punishment-phase witness was Dr. Terry Rustin, a medical doctor board certified in "internal medicine and . . . addiction medicine." Rustin testified that he had met with and interviewed Smith in the county jail during the pendency of Smith's case. During this interview, Smith told Rustin that he had abused Xanax by taking several tablets a day, without any prescription, since he was fourteen years old.

         Rustin explained that one of the primary effects of Xanax is to reduce stressfulness and "worry[, ] so that people will do things that they wouldn't ordinarily do . . . . This is called reduction of inhibitions. Inhibitions are the hesitancy that we feel about doing something we know is not right." Rustin testified that, because of this, the drug can "promote risky behavior," "increase impulsive behavior," and "result in aggressive or criminal behavior." However, Rustin clarified that using Xanax "does not excuse [or condone] behavior, and it's not an excuse under the law."

         Once both sides rested and closed, the trial judge prepared his punishment-phase jury instructions. Off the record, the State requested, and the trial judge agreed to give, an instruction stating that "[v]oluntary intoxication does not constitute a defense to the commission of a crime." On the record, Smith's trial counsel objected, arguing that while such an instruction might have been "appropriate in guilt/innocence," in the punishment phase, it essentially told the jury to "just ignore" Dr. Rustin's testimony. The trial judge overruled the objection, but told counsel he would nevertheless be allowed to "argue the mitigation aspect" of Smith's substance abuse. The jury ultimately sentenced Smith to life in prison.

         On appeal, Smith raised several claims, including a challenge to the inclusion of a punishment-phase voluntary-intoxication instruction under Penal Code Section 8.04(a).

         The court of appeals rejected this claim by plurality decision and went on to affirm Smith's conviction. Chief Justice Frost, writing the lead opinion for the plurality, concluded that including the voluntary-intoxication instruction was not erroneous. [2] Justice Jewell, concurring, wrote that including the instruction was erroneous, but harmless.[3] And Justice Christopher, dissenting, thought that the charge was both erroneous and harmful.[4]

         In the first two grounds of his petition for discretionary review, Smith argues that including the instruction violated Article 36.14 of the Code of Criminal Procedure[5] and the Due Process Clause of the United States Constitution.[6] Because we conclude that the charge given in this case did not comply with Article 36.14, and because finding a constitutional violation would not subject the error to a heightened standard of review in any event, [7] we need not address the constitutional complaint.

         II. ANALYSIS

         A. The State is permitted to put on evidence of extraneous "crimes."

         Article 37.07, Section 3(a)(1) of the Code of Criminal Procedure says that, in the punishment phase of trial, the State may offer "evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt . . . to have been committed by the defendant or for which he could be held criminally responsible[.]"[8] This language contemplates as many as four different possibilities: (1) the State may present evidence that the defendant personally committed an extraneous crime; (2) the State may present evidence that the defendant is "criminally responsible" for an extraneous crime committed by someone else;[9] (3) the State may present evidence that the defendant personally committed an extraneous bad act; and perhaps (4) the State may present evidence that the defendant is "criminally responsible" for an extraneous bad act committed by someone else.

         In Haley v. State, we observed that Article 37.07 does not place crimes and bad acts on "separate path[s] towards admissibility."[10] In that spirit, we declared that the distinction between crimes and bad acts is, under Article 37.07, "irrelevant."[11] Furthermore,

[u]nlike the guilt-innocence phase, the question at punishment is not whether the defendant has committed a crime, but instead what sentence should be assessed. Whereas the guilt-innocence stage requires the jury to find the defendant guilty beyond a reasonable doubt of each element of the offense, the punishment phase requires the jury only [to] find that these prior acts are attributable to the defendant beyond a reasonable doubt.[12]

         This passage could plausibly be understood to mean that whether the defendant's extraneous conduct meets the legal definition of a criminal offense is never a relevant consideration in the punishment phase of trial. Indeed, that understanding appears to be the one adopted by the dissenting opinion in the court below.[13]

         But when Haley said that "it is irrelevant [under Article 37.07, Section 3(a)(1)] whether the conduct the offering party is attempting to prove is . . . an offense under the Texas Penal Code, "[14] it was not using the word "irrelevant" in an evidentiary or Rule-401 sense.[15] If it had been, then the lawfulness or unlawfulness of the defendant's extraneous conduct would be flatly inadmissible in the punishment phase, because it would not even meet the threshold standard of relevance. This would conflict with the Legislature's seemingly deliberate decision to make evidence of extraneous "crime[s]," and not just extraneous "bad act[s]," admissible in the punishment phase.[16] If the badness of the act were the only relevant consideration, why would the Legislature have seen fit to refer to extraneous "crime[s]" at all?

         Instead, Haley used the word "irrelevant" in a more general, rhetorical sense-to make the point that, even if a particular act is not unlawful, and therefore not a "crime," it may still be admissible in the punishment phase as a bad act.[17] Haley does not say the State is somehow forbidden from pointing out to the jury that the defendant's extraneous conduct was, not just "bad" in a normative sense, but actually unlawful to boot.[18] After all, Haley clarified that the offering party need not "necessarily" prove that the extraneous act was criminal.[19] It did not say that the offering party is flatly prohibited from doing so.

         Certainly, the court's charge should not suggest to the jury that, if the defendant's extraneous conduct was unlawful, it ought to be given more weight in punishment than if it were a "mere" bad act. But by the same token, so long as the trial judge deems the unlawfulness of the defendant's extraneous conduct "relevant to sentencing, "[20] the State should not be prohibited from arguing that point to the jury. That being the case, and given that Article 36.14 instructs the judge to "deliver to the jury . . . a written charge distinctly setting forth the law applicable to the case, "[21] we do not think a trial judge would err by informing the jury of the circumstances under which it could permissibly find that the defendant had previously "committed . . . [a] crime."[22]

         This holding should not be misunderstood. This does not mean, for example, that Article 37.07 requires the trial judge to provide the jury with Penal Code definitions of the offenses the State seeks to prove in punishment. We deal with a situation in which the trial judge granted a request for a clarifying instruction, not a situation in which the trial judge denied a request.[23] So the only issue we speak to today is whether the trial judge erred by agreeing to give a Section 8.04(a) instruction on voluntary intoxication in the punishment phase. We do not decide whether he would have erred to refuse that particular request (or, for that matter, any other request).

         B. Voluntary intoxication is no defense to "the commission of crime."

         We turn now to Section 8.04(a) of the Penal Code, which says that "[v]oluntary intoxication does not constitute a defense to the commission of crime."[24] We have previously described involuntary intoxication as an "anti-defensive issue," that is, "an issue that benefits the State's position in the case but is not something the indictment require[s] the State to prove from the outset."[25] There are many other examples.[26]

         Penal Code Section 8.04(a) is uniquely worded. Almost every defensive and anti-defensive issue in the Penal Code begins with the phrase, "it is a defense to prosecution" or "it is no defense to prosecution," respectively.[27] Unlike these, Section 8.04(a) says that voluntary intoxication is not a defense "to the commission of crime."[28] We have never examined what, if anything, this difference in wording signifies, and we need not do so in any great depth today. Suffice it to say that, given that both Section 8.04(a) and Article 37.07 refer, somewhat conspicuously, to the "commission of crime, "[29] we think that so long as the facts support it, it is ...


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