
 

 


 

NUMBER 13-05-714-CR


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG 

 

SHERRY LYNN SMITH,					                   Appellant,

v.


THE STATE OF TEXAS,						           Appellee.
 

On appeal from the 278th District Court 
of Grimes County, Texas
 

DISSENTING OPINION

Before Justices Yañez, Benavides, and Vela

Dissenting Opinion by Justice Vela



	I respectfully dissent.  Appellant, Sherry Lynn Smith, argues the non-accomplice
evidence did not constitute evidence tending to connect her with the commission of the
offense.  The majority agrees, holding "the non-accomplice testimony in this case does not
adequately connect Sherry to the crime."  Slip op. at 2.  Because I believe the record
contains more than some non-accomplice evidence that tends to connect Sherry to the
commission of the offense alleged in the indictment, I would overrule this issue, and I
would not render a judgment of acquittal.
I. Standard of Review

	Accomplice-witness testimony cannot support a conviction unless corroborated by
other evidence tending to connect the defendant with the offense committed; and the
corroboration is not sufficient if it merely shows the commission of the offense.  Castillo v.
State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007).  When applying this rule, a reviewing
court excludes all of the accomplice-witness testimony from consideration and then
examines the remaining portions of the record to see if there is any evidence that tends to
connect the accused with the commission of the crime.  Id. (citing Solomon v. State, 49
S.W.3d 356, 361 (Tex. Crim. App. 2001)).  We have said that "[t]he tends-to-connect
standard presents a low hurdle for the State."  Patterson v. State, 204 S.W.2d 852, 858
(Tex. App.-Corpus Christi 2006, pet. ref'd); see Dowthitt v. State, 931 S.W.2d 244, 249
(Tex. Crim. App. 1996); Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993).  The
court of criminal appeals has said that "[t]he non-accomplice evidence does not have to
directly link [the defendant] to the crime, nor does it alone have to establish his guilt beyond
a reasonable doubt."  Id. (quoting McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App.
1997)).  There simply needs to be other evidence tending to connect the defendant to the
offense.  Id.  Further, the court of criminal appeals has noted that "unlike extrajudicial
confessions, testimony of an accomplice need be corroborated only as to facts 'tending to
connect the defendant with the offense committed' and not as to the corpus delicti[ (1)] itself." 
Id. (quoting Gribble v. State, 808 S.W.2d 65, 71 n.13 (Tex. Crim. App. 1990).
	Evidence corroborating the accomplice-witness testimony is sufficient if the
combined cumulative weight of the incriminating evidence furnished by the non-accomplice
witnesses tends to connect the accused with the commission of the offense.  Romero v.
State, 716 S.W.2d 519, 523 (Tex. Crim. App. 1986).  All facts and circumstances in
evidence may be looked to as furnishing the necessary corroboration.  Mitchell v. State,
650 S.W.2d 801, 807 (Tex. Crim. App. 1983).  Sometimes, insignificant circumstances
afford the most satisfactory evidence of guilt and corroboration of the accomplice-witness's
testimony.  Id.  In applying the test of the sufficiency of the corroboration, each case must
be considered on its own facts and circumstances.  Reed v. State, 744 S.W.2d 112, 126
(Tex. Crim. App. 1988). 
	Independent evidence that generally tends to prove that an accomplice witness's
version of events is true, rather than the defendant's version, is considered corroborative,
even if it concerns a mere "detail," as opposed to a substantive link between the defendant
and commission of the offense.  Beathard v. State, 767 S.W.2d 423, 430 (Tex. Crim. App.
1989).  The corroborating evidence may be either circumstantial or direct.  Reed, 744
S.W.2d at 126; Granger v. State, 683 S.W.2d 387, 392 (Tex. Crim. App. 1984).
II. The Non-Accomplice Evidence

	Sherry Lynn Smith ("Sherry") was the former wife of Daniel "Boone" Gardner.  From
this relationship, Sherry and Boone had a daughter, Tori, who at the time of the murders
had the name Tori Sword.  After Sherry and Boone divorced, Sherry married Carey Smith. 
Sherry and Carey lived with Carey's father, Charles Smith, who was in poor health.
	At approximately 4:30 p.m. on December 7, 2002, Sherry told a 911 dispatcher that
Carey and Charles were dead.  Authorities went to the Smith home and found Carey and
Charles in bed in their respective bedrooms.  Both were shot and killed with a high-powered rifle.  There was no evidence of a murder suicide.
A. Sherry's Deteriorating Relationship with Carey and Charles
	Tori Sword testified that Sherry was "frustrated" and "wasn't very happy" with Carey
and Charles.  Sherry did not like the fact that Carey and Charles were keeping tabs on her. 
Tori stated that when Carey called Tori's house looking for Sherry, Sherry "talked kind of
ugly" to him.  On one occasion, Sherry talked about leaving Carey.
	Jerry Simcik, a home health care nurse, testified about the relationship between
Sherry and Charles.  Simcik stated that "there was a lot of tension," "a lot of stress in the
household," and that Sherry "would get irritated with Charles."
	Teresa Knott, who attended the same church as Charles, testified that caring for
Charles became stressful for Sherry as Charles's needs grew.
B. Sherry's Rights to Carey and Charles's Property
	Attorney Fred Neal testified that in 2001 (the year before the murders), he prepared
Carey's will, which left all of Carey's property to Sherry and made her his executor.  Years
earlier, he prepared Charles's will, which left everything to Charles's wife.  Because
Charles's wife had predeceased him, the will provided that Carey would receive the Smith
residence.  Neal testified that because Charles and Carey died about the same time, Carey
would not inherit anything from Charles.  However, a very important fact is that Neal opined
that to a lay person, the wills indicate that if Charles died, his property would pass to Carey,
and if Carey died, the property would pass to Sherry.
	Thus, to a lay person like Sherry, the wills indicated both Carey and Charles would
have to die for Sherry to inherit the Smith residence.

C. Sherry's Statements about the Future Deaths of Carey and Charles and Her Perception
about Her Right to the Smith Residence

	Debra Cargill, a home respiratory therapist, visited the Smith home prior to the
murders.  Cargill testified that during this visit, she commented to Sherry how nice the
place looked.  In reply, Sherry stated that, "[O]ne day this would be hers [Sherry's]."
	Tori testified that before the murders, Sherry told her that Charles, who was in poor
health and occasionally went to the hospital, "wasn't going to live much longer."  Sherry
also told her that when Charles died, Carey would not live much longer and that "everything
would be hers."
D. Sherry's Relationship with Boone
	At some point prior to the murders, Sherry and Boone rekindled their relationship. 
Tori testified that when Boone first started staying with Tori, Sherry stayed away from Tori's
house.  After some time, Sherry started to come to Tori's house more frequently.  Tori
testified that later on, Sherry always wanted to be where Boone was and that Sherry
wanted to talk to him and follow him around.  Sherry craved Boone's attention.  Tori
testified that on one occasion, Sherry told her that she had kissed Boone and that she still
loved him.
E. Sherry's Financial Condition
	The State introduced into evidence tape-recorded statements in which Sherry
admitted to having several credit cards that Carey did not know about.  The credit-card
debt totaled over $42,000, and Sherry was behind on the payments.  In an interview with
Officer Martinez and Ranger Wells, conducted four days after the murders, Sherry
admitted that the debt was hers and that Carey did not know about it.  Prior to this
interview, the officers had learned that Sherry had credit-card debt in Carey's name.
F. Sherry's Opportunity to Murder Carey and Charles and Her Prior Knowledge of Their
Deaths

	Tori testified that on December 6, 2002, she was working at a Diamond Shamrock
from 4:00 p.m. until the early morning of December 7 (the day Sherry called 911 to report
the deaths of Carey and Charles.).  While Tori was at work, Sherry was at the Smith home,
babysitting Tori's son, Logan.  Tori left work at 12:45 a.m., December 7.  At some point,
Sherry called Tori to ask where she was and was mad because she (Sherry) had to leave
early in the morning to go to Huntsville.  Tori testified it was unusual for Sherry to be angry
about Tori being late.  When Tori arrived at the Smith home about 1:00 a.m., Sherry
brought Logan to Tori's vehicle.  Tori testified that when Sherry brought Logan to the
vehicle, Sherry was wearing a house coat.  Tori stated the house coat "was something
[Sherry] normally wore."  However, after the murders, Tori never saw the house coat again. 
When Tori and Logan returned home, Boone was there.
G. Sherry and Boone's Behavior After the Murders
	Tori testified that Sherry's reaction to the murders was not typical of someone who
was grieving.  Rather than asking Tori to cooperate with the police, Tori testified that Sherry
and Boone "actually told me that I didn't have to" talk to the police and that "[a]nything that
I say can incriminate my mom [Sherry]."  Tori stated that Boone was concerned that Tori
would say something to incriminate Sherry.  In March 2003, Sherry and Boone were both
arrested for the murders.  While Sherry was in jail, Sherry told Tori she still loved Boone. 
H. Sherry's Interview at the Murder Scene
	On December 7, Deputy Schroeder interviewed Sherry at the murder scene.  Sherry
mentioned guns in the house but discussed them in the past tense.  Deputy Schroeder
testified she never told Sherry any guns were missing from the house.
I. Sherry's Interview with Officer Martinez and Ranger Wells

	About five hours after Sherry called 911 to report the deaths of Carey and Charles,
she told Officer Martinez and Ranger Wells that on December 6 (the night before she
reported the deaths), she had been at the Smith home, babysitting Logan.  Tori picked up
Logan at roughly 12:30 a.m. on December 7, and Sherry went to bed at 1:00 a.m.  Three
hours later, she left home to go to a Wal-Mart store in Huntsville.  She said that Carey and
Charles were asleep when she left.  Sherry showed up at the Wal-Mart parking lot at 5:15
a.m. and stayed at the Wal-Mart until 6:42 a.m.  At approximately 7:30 a.m., she arrived
at a friend's house in Houston.  She and the friend went to Humble to visit Sherry's cousin,
who was in the hospital.  Sherry left the hospital at 1:00 p.m., and after buying a cell phone
in Huntsville, she went to the Diamond Shamrock where Tori worked.  Sherry and Boone
were at this Diamond Shamrock at approximately 4:00 p.m.  Sherry said she went there
to pick up Logan so she could babysit him while Tori worked.  After leaving the Diamond
Shamrock with Logan, she went to Tori's home to pick up Logan's medicine.  Boone was
at Tori's house.  Sherry then went to the Smith home.
	Sherry's reaction, or lack thereof, to finding her husband and Charles is suspicious
and incriminating.  She told Officer Martinez and Ranger Wells that when she entered her
husband's bedroom, she saw him in bed with blood coming out of his nose.   She did not
tell Officer Martinez or Ranger Wells that she saw blood any where else in this bedroom. 
Instead of shaking her husband to see if he was still sleeping or asking him if he knew he
had a nose bleed, she flippantly left his bedroom and closed the door.  She did not even
bother to call paramedics so they could check on her husband's condition.  Instead, for
reasons unknown, she went to Charles's bedroom.  She told Officer Martinez and Ranger
Wells that as she approached Charles, she believed he was dead.  She offered no
explanation to them about how, as she approached Charles, she believed he was dead
and not asleep as she had left him earlier that morning.  She did not tell Officer Martinez
or Ranger Wells whether she tried to see if Charles was still asleep, call out to him, check
if he was breathing, or check for a pulse.  Moreover, she did not tell them she saw blood
in Charles's bedroom.
	Yet, at 4:30 p.m. on December 7, Sherry told the 911 dispatcher that Carey and
Charles were dead.  She did not tell the dispatcher how or by what means she knew they
had died.  And, based upon what she told Officer Martinez and Ranger Wells, Sherry could
not have concluded that Carey and Charles were dead unless she had knowledge of their
deaths before she returned to the Smith home that afternoon.
	The evidence is undisputed that after Tori picked up Logan from the Smith home
about 1:00 a.m. on December 7, Sherry was alone with Carey and Charles from that time
until the time she left the Smith home early that morning to go to Wal-Mart--a time span
of at least three hours.  During this three-hour period, Sherry had ample time to murder
them while they slept and remove the guns, including the murder weapon, from the house. 
The logical conclusion is that Sherry's departure from the Smith home at 4:00 a.m. to go
to Wal-Mart, visit a friend, visit a hospitalized cousin, buy a cell phone, go to the Diamond
Shamrock, go to Tori's home to pick up Logan's medicine, and then return home at 4:30
p.m. was an attempt to establish an alibi.  She did not tell Officer Martinez or Ranger Wells
that she had left a note for Carey and Charles, telling them she would be gone most of the
day, or that she had made any effort to contact them to tell them where she was.      
J. Sherry's Knowledge of the Guns
	During Sherry's initial interview with Officer Martinez and Ranger Wells, the officers
asked her what guns might have been present at the Smith home.  Sherry described
several guns, including one that was in a black gun case in the utility room.  When Officer
Martinez told her there was no black gun case found at the Smith home, Sherry stated,
"The guns are gone, aren't they?"
K. The Probable Murder Weapon
	Ray Cooper, a firearms examiner, tested the bullets recovered from the murder
victims and compared those bullets to guns recovered from Boone.  Even though damage
to the recovered bullets prevented Cooper from positively saying which gun had fired the
recovered bullets, he opined that the recovered bullets had the same general
characteristics as the 25.06 rifle recovered from Boone and that the recovered bullets
could have come from the 25.06 rifle.
L. Sherry's Demeanor During Her Initial Interview with Officer Martinez and Ranger Wells
and the Stain on Her Clothes

	Sherry's demeanor during her interview with Officer Martinez and Ranger Wells is
not consistent with someone who had only five hours earlier reported the deaths of their
husband and father-in-law.  Ranger Wells testified that during the interview, Sherry did not
cry, but occasionally laughed.  At the end of the interview, she agreed to turn over the
clothes she was wearing that day to Officer Martinez for testing.
	Staci Dennison, a forensic biologist, tested the clothes that Sherry was wearing on
the day of the murders.  The presumptive test, which she performed on the outside of
Sherry's pant leg, tested positive for traces of blood.  A presumptive positive for blood
means that the substance could be blood but it is not conclusive.  Another forensic
biologist, Kenneth Balagot, performed a DNA test on the substance found on the outside
of Sherry's pant leg.  He testified that the DNA from that sample was a mixture of two
contributors that could be divided into a major and minor contributor.  He stated that the
set of genetic markers from the major contributor matched Sherry's DNA profile and that
the minor contributor's profile "corresponded" to genetic markers observed in Carey's DNA
profile.  He testified that there was a 1 in 195 chance that Carey was a contributor to the
DNA.
III. Analysis

	The evidence independent of that of the accomplice witness revealed the murders
of Carey and Charles by someone.  Evidence showing the commission of the offense
charged is a factor to be considered along with other possible factors in determining
whether there is sufficient independent evidence to corroborate the accomplice-witness
testimony.  Paulus v. State, 633 S.W.2d 827, 844 (Tex. Crim. App. 1982).  Sherry was in
Boone's presence on numerous occasions before the murders, on the day of the murders,
and after the murders.  The presence of the accused with the accomplice witness, when
coupled with other circumstances, may be sufficient corroboration.  Dillard v. State, 550
S.W.2d 45, 51 (Tex. Crim. App. 1977); Nelson v. State, 542 S.W.2d 175, 177 (Tex. Crim.
App. 1976).  The evidence showed Sherry had incurred $42,000 in credit-card debt without
Carey's knowledge; that she harbored ill will towards Carey and Charles; that she talked
about leaving Carey; that she was in love with Boone; and that to a lay person, she stood
to inherit the Smith residence if Carey and Charles died.  Even though evidence which
merely goes to show motive or opportunity of the accused to commit the crime is
insufficient alone to corroborate the accomplice-witness testimony, it may, however, be
considered in connection with other evidence tending to connect the accused with the
crime.  Reed, 744 S.W.2d at 127.  Accordingly, this evidence may be considered in
connection with all other evidence tending to connect Sherry to the murder of her husband
and father-in-law.  See id. (evidence of an affair may be considered in connection with
other evidence tending to connect defendant to his wife's murder); see also Richardson
v. State, 879 S.W.2d 874, 880 (Tex. Crim. App. 1993) (ill will toward victim is suspicious
circumstance that tends to connect accused to the crime in order to furnish sufficient
corroboration to support conviction); Paulus, 633 S.W.2d at 844 (motive is a factor to be
considered along with other possible factors in determining whether there is sufficient
independent evidence to corroborate the accomplice witness).
	In Brown v. State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984), the court stated,
"Proof that the accused was at or near the scene of the crime at or about the time of its
commission, when coupled with other suspicious circumstances, may tend to connect the
accused to the crime so as to furnish sufficient corroboration to support a conviction." 
Sherry's interview with Officer Martinez and Ranger Wells showed that after Tori picked
up Logan, Sherry was alone with Carey and Charles for at least three hours before she left
home to go to Wal-Mart.  Sherry said that when she left to go to Wal-Mart, Carey and
Charles were asleep.  Both victims were found shot to death in their beds; the logical
conclusion is they were killed while they slept.  Thus, Sherry placed herself at the crime
scene relative to the time of the murders.
	With respect to the stain on the clothes Sherry was wearing about five hours after
she reported the murders, the set of genetic markers from the major contributor matched
Sherry's DNA profile, and the minor contributor's profile "corresponded" to genetic markers
observed in Carey's DNA profile.  This is a circumstance that tends to connect Sherry to
the offense.  See Gosch v. State, 829 S.W.2d 775, 781 (Tex. Crim. App. 1991) (blood of
victim's blood type found on defendant's blue jeans was some evidence tending to connect
defendant to the offense); Romero, 716 S.W.2d at 523 (underwear recovered from
defendant's residence determined to have blood stains consistent with defendant and
deceased's blood type is a circumstance which may be considered when determining
corroboration of accomplice-witness testimony). 
	Sherry's behavior upon seeing Carey and Charles in their beds when she returned
home on December 7 indicates she had prior knowledge of their deaths.  This is a
suspicious circumstance that tends to connect the accused to the crime in order to furnish
sufficient corroboration to support a conviction.  See Reed, 744 S.W.2d at 127; (2) see also
Thompson v. State, 54 S.W.3d 88, 94 (Tex. App.-Tyler 2001, pet. ref'd) (defendant's extra-judicial confession can corroborate accomplice's testimony that defendant committed the
offense).  The logical conclusion from Sherry's conduct on the day of the murder--leaving
the Smith home at 4:00 a.m. and not returning until about 4:30 p.m.--is that she was trying
to establish an alibi.  This is a suspicious circumstance because it suggests the existence
and implementation of a plan and, therefor, tends to corroborate Boone's testimony that
Sherry had planned to murder Carey and Charles.  See Beathard, 767 S.W.2d at 430
(suspicious alibi is a factor tending to connect defendant to the offense).
	On the day of the murders, when Tori picked up Logan, Sherry was wearing a house
coat that she normally wore.  Tori described the house coat as a pale, cotton or terry cloth
robe.  After the murders, Tori never saw that house coat again.  This is a suspicious
circumstance tending to connect Sherry to the murders because it corroborates Boone's
testimony that:  (1) two days before the murders, Sherry told Boone that she had some
guns and that Boone told her to put them on his utility trailer; (2) at roughly 4:30 a.m. the
morning of the murders, Boone heard a vehicle drive up to Tori's house; (3) later that
morning, Boone discovered guns on his trailer; and (4) one of the guns was wrapped in a
pale blue colored, terry-cloth bath robe.  Tori's testimony represents corroboration of a
detail that tends to connect Sherry to the offense.  See Beathard, 767 S.W.2d at 431. (3)
	In addition, Sherry knew about and had access to the guns in the Smith home.  A
comparison of the bullets recovered from the murder victims to those bullets from the guns
recovered from Boone showed that the recovered bullets had the same general
characteristics as the 25.06 rifle recovered from the accomplice, Boone, and that the
recovered bullets could have come from the 25.06 rifle.  Non-accomplice evidence that a
particular gun "may have been used in the commission of the crime" is a suspicious
circumstance that tends to connect the accused to the crime in order to furnish sufficient
corroboration to support a conviction.  Richardson, 879 S.W.2d at 880.
	With respect to the murder weapon, Boone testified that the gun wrapped in the
bath robe was a "25.06" with two spent hulls inside it.  Thus, the ballistics evidence
represents corroboration of a detail that tends to connect Sherry to the commission of the
offense.  See Beathard, 767 S.W.2d at 430 (independent evidence that generally tends to
prove that an accomplice witness's version of events is true, rather than defendant's
version is considered corroborative).  
	Given Sherry's admitted presence at the crime scene and the number of factors
discussed above, I conclude the combined cumulative weight of the incriminating evidence
furnished by the non-accomplice testimony tends to connect Sherry to the offense either
as a principal or as a party.  Therefore, I would hold the evidence is sufficient to
corroborate Boone's testimony that Sherry murdered Carey and Charles.  See Beathard,
767 S.W.2d at 431.  For these reasons, I respectfully dissent.

 

 
							ROSE VELA	
							Justice

Publish.
Tex. R. App. P. 47.2(b).

Dissenting Opinion delivered and
filed this 13th day of November, 2008.
1. The corpus delicti of murder is established if the evidence shows the death of a human being caused
by the criminal act of another.  McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).  
2. In Reed, the accomplice witness testified the defendant had pushed the deceased's body out of the
car "face first" onto the side of the highway.  Reed v. State, 744 S.W.2d 112, 127 (Tex. Crim. App. 1988). 
When police took the defendant to the scene along the highway, the defendant got within six or seven feet
of the body on the side of the highway, glanced down, and immediately identified the body as that of his wife. 
Id.  The deceased's face was turned away from the defendant's position and was not otherwise visible
because of hair and the clothing being pushed up.  Id. at 127-28.  A police officer, who was at the scene,
opined that the defendant could not have seen the deceased's face.  Id. at 128.  Another police officer who
saw the defendant identify the deceased, stated that from the defendant's position, a person could not tell if
the body was male or female, see the face, or tell who it was.  Id.  The court of criminal appeals viewed this
evidence as a circumstance furnishing the necessary corroboration.  Id.
	In the case before this Court, the accomplice, Boone, testified that Sherry told him she had killed
Carey and Charles.  In her statement to Officer Martinez and Ranger Wells, Sherry did not indicate how, after
seeing Carey and Charles in bed, she knew they were dead, unless she had prior knowledge of their deaths. 
Thus, like the situation in Reed, we can consider this evidence as a circumstance furnishing the necessary
corroboration of Boone's testimony that Sherry had killed Carey and Charles.
3. In Beathard, the defendant argued on appeal there was insufficient evidence to corroborate the
testimony of the accomplice, Gene Hathorn.  Beathard v. State, 767 S.W.2d 423, 427 (Tex. Crim. App. 1989). 
Hathorn testified the defendant was wearing overalls, a t-shirt, and a pair of tennis shoes.  Id. at 431.  He
stated the defendant said that he intended to dispose of his shoes so that, in the event footprints were
discovered at the crime scene, they could not be matched to his shoes.  Id.  Cathy Ross, a non-accomplice
witness, confirmed Hathorn's description of the defendant's dress and said that since the day of the murder,
she had never again seen these articles of clothing.  Id.  The court of criminal appeals considered this
corroborative of Hathorn's testimony.  Id. at 430-31.   
