                                                                              ACCEPTED
                                                                           01-15-00366-cr
                                                               FIRST COURT OF APPEALS
                                                                       HOUSTON, TEXAS
                                                                    8/12/2015 11:59:40 PM
                                                                    CHRISTOPHER PRINE
                                                                                   CLERK


                     No. 01-15-00366-CR
                                                         FILED IN
                                                  1st COURT OF APPEALS
                                                      HOUSTON, TEXAS

                  In the Court of Appeals         8/12/2015 11:59:40 PM
                                                  CHRISTOPHER A. PRINE
                For the First Judicial District            Clerk

                       Houston, Texas


                 Trace Rogers Smith v. State


        On Appeal from Cause No. CR2014-093
          in the 207th Judicial District Court
                of Comal County, Texas


                       Brief of Appellant
                      Trace Rogers Smith

Atanacio Campos
Bar No. 03720700
Attorney for Trace Rogers Smith
496 S. Castell Ave.
New Braunfels, Texas 78130
Tel: (830) 620-1515
Fax: (830) 620-5334
atanacio@aol.com


               Oral Argument Not Requested
                          Parties and Counsel

For the State of Texas:

Ms. Chari Kelly
Assistant Criminal District Attorney
150 N. Seguin Ave.
New Braunels, Texas 78130
Tel: (830) 221-1300
Fax: (830) 608-2008
ckelly@ co.comal.tx.us


For the Appellant:

Atanacio Campos
Attorney for Trace Rogers Smith
496 S. Castell Ave.
New Braunfels, Texas 78130
Tel: (830) 620-1515
Fax: (830) 620-5334
atanacio@aol.com




	                                     2	  
                                                   Table of Contents

Index	  of	  Authorities	  ................................................................................................................	  4	  
Statement	  of	  the	  Case	  .............................................................................................................	  5	  
Oral	  Argument	  ..........................................................................................................................	  6	  
Issue	  Presented	  ........................................................................................................................	  7	  
Statement	  of	  Facts	  ...................................................................................................................	  8	  
Argument	  .................................................................................................................................	  10	  
Prayer	  ........................................................................................................................................	  17	  
	  
	  




	                                                                          3	  
                                     Index of Authorities
	  


CASES
Bagley, 473 U.S. at 682, 105 S.Ct. 3375 ........................................................................... 10
Brown v. State, 672 S.W.2d 487, 488 (Tex.Crim.App.1984); ........................................... 15
Hall v. State, 283 S.W.3d 137, 171 (Tex. App. – Austin 2009). ....................................... 10
Hampton, 86 S.W.3d at 612 .............................................................................................. 11
Kyles, 514 U.S. at 434, 115 S.Ct. 1555. ............................................................................ 11
Meyers v. State, 626 S.W.2d 778 (Tex.Crim.App.1982). .................................................. 15
United States v. Agurs, 427 U.S. 97, 109, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)); ......... 12




	                                                          4	  
                                                                 Statement of the Case

                   This case is an appeal from a conviction for attempted capital murder,

aggravated kidnapping, aggravated robbery, and tampering with evidence in

the 207th District Court of Comal County, Texas.1 A jury trial was held

February 23 to March 2, 2015. Trace Rogers Smith was found guilty of

these four counts and the jury sentenced him to 42 years for attempted

murder and aggravated kidnapping, ten years for aggravated robbery, and

five years for tampering with physical evidence.

                   After the trial had concluded and this appeal had begun, the State

provided trial counsel with a letter informing him that Clint Barkley, the

State’s witness, had a prior murder conviction. Trial counsel forwarded that

letter to appellate counsel, and it was filed into the record of this case.




	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
1	  Smith	  was	  also	  charged	  with	  Aggravated	  Sexual	  Assault,	  of	  which	  the	  jury	  found	  



	                                                                                                                5	  
                          Oral Argument

       Oral Argument is not requested.




	                                   6	  
                          Issue Presented
	  




       The State failed to disclose the prior murder conviction of Clint

Barkley, one of only two non-accomplice witnesses to testify as to the events

that occurred on December 8, 2013. Mr. Barkley’s testimony indicated that

Smith was aware of and was aiding the codefendants in their assault on the

victim.   Was Barkley’s testimony material to Smith’s conviction for

attempted capital murder as a party?




	                                     7	  
                                                                          Statement of Facts
	  
	  
                   Dana Huth was found naked, shackled, bloody, and severely injured

on the morning of December 9, 2015 in a stranger’s vehicle at Canyon Lake,

Texas. She recounted the events of the previous night, which began at the

home of Mike Chapin.2 At “Big Mike’s” house, co-defendants Heather

Richards and Kayla Lardieri, tased her, kicked her, stabbed her, and

handcuffed her hands and feet, while Sheena Hopkins recorded the events on

a cell phone. Trace Rogers Smith admitted to carrying her, naked, hog- tied,

and wrapped in a sheet, to a shed outside, then locking the shed. Dana

managed to get the handcuffs off her hands, but not her feet. She broke

through a window in the shed, climbed out and crawled to a neighbor’s

house. She was unable to summons help from the neighbor during the night,

but she found shelter in one of the vehicles that was unlocked.

                   At some point later Smith burned Dana’s belongings, along with

clothing that Kayla had been wearing that night.




	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
2	  Mike	  Chapin	  was	  also	  indicted	  as	  a	  codefendant	  in	  this	  criminal	  episode,	  but	  he	  

died	  in	  the	  Comal	  County	  Jail	  awaiting	  trial.	  

	                                                                                                                 8	  
       All of the codefendants and victim were friends or acquaintances, and

all were using and/or dealing drugs through Big Mike. Heather was upset

that Dana was involved with Heather’s boyfriend, Travis, or T-bone. Kayla

believed that Dana had been recording drug transactions and intercepting

information from their cell phones about drug deals.       Both wanted to

confront Dana and send a message to stay out of their business. They denied

having any plan to kill her.




	                                   9	  
                                                                                                           Argument


                      The State failed to disclose the prior murder conviction of Clint

Barkley, one of only two non-accomplice witnesses to testify as to the events

that occurred on December 8, 2013. Mr. Barkley’s testimony indicated that

Smith was aware of and was aiding the codefendants in their assault on the

victim.                            Was Barkley’s testimony material to Smith’s conviction for

attempted capital murder as a party?



                      Hall v. State3 discusses how Brady evidence is to be considered on

appeal:

                                             “Whether the State’s failure to disclose the impeachment

                                             evidence constituted a due process violation turns instead on

                                             whether the evidence was “material” under Brady. Undisclosed

                                             evidence is “material” to guilt or punishment “only if there is a

                                             reasonable probability that, had the evidence been disclosed to

                                             the defense, the result of the proceeding would have been

                                             different.” Bagley, 473 U.S. at 682, 105 S.Ct. 3375. A
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
3	  Hall v. State, 283 S.W.3d 137, 171 (Tex. App. – Austin 2009).



	  

	                                                                                                                                10	  
       “reasonable probability” is “a probability sufficient to

       undermine confidence in the outcome.” Id. In other words,

       “[t]he question is not whether the defendant would more likely

       than not have received a different verdict with the evidence, but

       whether in its absence he received a fair trial, understood as a

       trial resulting in a verdict worthy of confidence.” Kyles, 514

       U.S. at 434, 115 S.Ct. 1555. The Supreme Court has further

       explained that this standard “is not a sufficiency of the evidence

       test”—“[a] defendant need not demonstrate that, after

       discounting the inculpatory evidence in light of the undisclosed

       evidence, there would not have been enough left to convict.” Id.

       at 434–35, 115 S.Ct. 1555. Instead, the defendant must “show[ ]

       that the favorable evidence could reasonably be taken to put the

       whole case in such a different light as to undermine confidence

       in the verdict.” Id. at 435, 115 S.Ct. 1555. On the other hand,

       “[t]he mere possibility that an item of undisclosed information

       might have helped the defense, or might have affected the

       outcome of the trial, does not establish ‘materiality’ in the

       constitutional sense.” Hampton, 86 S.W.3d at 612 (quoting

       United States v. Agurs, 427 U.S. 97, 109, 96 S.Ct. 2392, 49



	                              11	  
                L.Ed.2d 342 (1976)); see also id. (distinguishing this standard

                from the general standard for constitutional harmless error).

                The inquiry “involves balancing the strength of the [favorable]

                evidence   against    the        evidence   supporting   conviction.”

                Hampton, 86 S.W.3d at 613. We must accordingly consider

                “the entire body of evidence” at trial. Id. Similarly, we evaluate

                materiality “in terms of suppressed evidence considered

                collectively, not item-by-item.” Kyles, 514 U.S. at 436, 115

                S.Ct. 1555.”



          This case had a lot of testimony, but it lacked a reliable narrator.

There are 4 codefendants. All but Sheena were smoking methamphetamines

and possibly also marijuana.         They all admit to being either in shock by

what was transpiring, or having difficulty knowing what was going on

around them due to drug use. The victim was in and out of consciousness.

Under the accomplice witness rule, anything they testify to must be

supported by cooberating evidence from another source.

       The State called two witnesses who were at Mike’s house that night who

were not involved in the crime and could have been that cooberating source.

The first one called was Clint Barkley. He testified:



	                                          12	  
       • At some point, Dana went in the back bedroom. All three girls were
          back there and Trace was at the door; he kept running in and out of
          the door. (Vol. 3, p. 202-203).
       • Trace was posted up at the door, in and out, guarding the door, like he
          was helping somebody do something. And then he’s standing guard
          at the door. (Vol. 3, p. 207-208).
       • Trace was going in and out of that bedroom, whatever was going on in
          there. Every time he went in, there was more ruckus going on in
          there.   I wasn’t smoking marijuana that night.         Trace and his
          entourage were the only ones smoking. (Vol. 3, p. 215.)
       • I stayed for two hours on the sofa watching TV. Went in and out of
          the house, charged up my phone. (Vol. 3, p. 216-127.)
       • Dana, Kayla, the two girls, and then Trace were in and out of the
          bedroom. (Vol. 3, p. 217.)



       The other witness was Jerry Stovall. Jerry’s son had died after being shot

by police just a few days before. The people involved in this case knew his

son and were reminiscing with him. He stated:

       • I went to Mike’s to smoke meth. (Vol. 4, p. 27).
       • My truck wouldn’t start and Clint (Barkley) gave me a jump start.
       • When I first went in to Mike’s I sat on the couch and talked to Dana
          about my son for 45 min.
       • The 3 girls went in the bedroom, then Trace. Then Trace came out
          and Dana went in. (Vol. 4, p. 34).

	                                          13	  
       • Clint (Barkley) did stop by and gave me a jump. I don’t remember if
          he was inside or not. I don’t think he was sitting on the sofa, I think he
          was just outside. I did not see any marijuana. (Vol. 4, p. 35).



          Clint Barkley’s testimony led the jury to believe that Trace had a great

deal of involvement with the beating and stabbing that took place in the

bedroom. It showed that Trace knew what was happening in there, that he

was actively preventing Dana from leaving or anyone else from coming to

her aid, and that he approved of what the girls were doing to Dana. It

indicated that there was an agreement between Trace and the girls that this

assault on Dana was part of a plan.

          Noticeably, Jerry Stovall did not say that Trace was in and out of the

bedroom or standing guard at the door. He also didn’t think that Clint

Barkley was in the house at all.

          Because Barkley was not involved in this criminal episode, his

testimony would be given more credibility than Trace’s when there was any

discrepancy between the two. So when Trace testified that he did not know

what the girls were doing to Dana, Barkley’s statements to the contrary

undermined Trace’s testimony in the minds of the jurors. This made it

appear that Trace not only knew and approved of what was happening, but

that he was also lying to the jury. It was necessary for the defense to


	                                        14	  
impeach Barkley’s credibility to ensure that Trace got a fair trial. Barkley’s

status as an uninvolved, purportedly sober witness elevated his testimony

above that of the other witnesses. If there was a reason that his testimony

should not have been given such weight, Trace had a right to show the jury.

                  Furthermore, Barkley’s testimony was the only non-accomplice

evidence that connected Trace with the assault on Dana.                                                                                                                                                 Without

cooberating testimony, a codefendant’s statements are insufficient to

convict.4

                  The jury charge for attempted capital murder states “attempt to

intentionally cause the death of an individual to-wit Dana Huth by stabbing

the said Dana Huth with a knife, by striking the said Dana Huth with the

hand, or by kicking the said Dana Huth with the foot”. No evidence was

offered that Trace committed any of those acts, or that he did an act

amounting to more than mere preparation that tends, but fails to effect the

commission of capital murder. Therefore he could not be found guilty as a

principle.

                  Only Barkley’s testimony indicated that Trace solicited, encouraged,

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
4	  Brown v. State, 672 S.W.2d 487, 488 (Tex.Crim.App.1984); Meyers v.



State, 626 S.W.2d 778 (Tex.Crim.App.1982).

	  

	                                                                                                          15	  
aided, or attempted to aid the others in committing attempted capital murder.

Barkley’s description of Trace standing guard by the bedroom door, and

going in and out of the room indicated that Trace knew what was happening

in there, and that he aided the codefendants by preventing Dana’s escape and

ensuring no one could enter the room to stop them. That is why Barkley’s

testimony and credibility are crucial. He provided the only evidence of

Trace being aware of or involved with the attempted capital murder. No one

else indicated that Trace became involved until after the assault was over.

       Once Trace became aware of what had transpired in the bedroom,

then he did take actions that constituted kidnapping.        But the actions

described in the jury charge of stabbing, striking, or kicking Dana had

already taken place by then. Trace believed that the girls went into the

bedroom to discuss Dana’s relationship with Heather’s boyfriend. It is not

reasonable to expect that an attempted murder would result from such

discussions.




	  

	  

	  




	                                    16	  
                                 Prayer
	  

	  

          The State failed to disclose Brady evidence that was material to the

       case.   Without that evidence, the defense could not impeach the

       State’s witness with his prior murder conviction.        The witness

       provided testimony that the defendant was acting in concert with the

       codefendants while they were attempting to commit capital murder.

       This resulted in an unfair trial for the defendant and a verdict

       unworthy of confidence. Trace Rogers Smith prays the court reverse

       the conviction of attempted capital murder and render a judgment of

       acquittal.




       Respectfully Submitted by:

       /s/ Atanacio Campos
       Atanacio Campos
       State Bar No. 03720700
       Attorney for Trace Rogers Smith, Appellant
       496 S. Castell Ave.
       New Braunfels, Texas 78130
       Tel: (830) 620-1515
       Fax: (830) 620-5334
       atanacio@aol.com




	                                   17	  
                                  Certificate of Compliance

       This brief contains 2311 words, as calculated by the word processing
       software used to create it.

                                                      /s/ Atanacio Campos
                                                      Atanacio Campos



                                 Certificate of Service

              The following parties were served via electronic mail through
       the electronic filing service used to file this brief in the First Court of
       Appeals.

       Ms. Chari Kelly
       kellyc@co.comal.tx.us

                                                      /s/ Atanacio Campos
                                                      Atanacio Campos




	                                     18	  
