                                  NUMBER 13-05-00714-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.


               MEMORANDUM OPINION ON REMAND
                Before Justices Yañez, Benavides and Vela1
            Memorandum Opinion On Remand by Justice Benavides
        In our original opinion in this case, we sustained appellant Sherry Lynn Smith’s


        1
          The Honorable Linda Reyna Yañez, former Justice of this Court, did not participate in this opinion
because her term of office expired on December 31, 2010; therefore, this case, which was argued before
the panel on December 7, 2007, will be decided by the two remaining justices on the panel. See Tex. R.
App. P. 41.1(b) (“After argument, if for any reason a member of the panel cannot participate in deciding a
case, the case may be decided by the two remaining justices.”).
first two issues on appeal, reversed her judgment of conviction, and rendered a judgment

of acquittal. See Smith v. State, 286 S.W.3d 412, 438 (Tex. App.—Corpus Christi

2008), rev’d and remanded, 332 S.W.3d 425, 448 (Tex. Crim. App. 2011). The Texas

Court of Criminal Appeals reversed, holding (1) that the trial court did not err in refusing

to instruct the jury that accomplice witness Daniel “Boone” Gardner was an accomplice

as a matter of law; and (2) that sufficient evidence existed to connect Smith to the

murders as required by article 38.14 of the code of criminal procedure.                       Smith, 332

S.W.3d at 448.           See also TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). The

court of criminal appeals remanded the case to address Smith’s remaining issues.                       See

Smith, 332 S.W.3d at 448. We now address the remaining three issues, which we

re-number as two,2 regarding (1) whether the trial court erred when it overruled Smith’s

objection to the court’s charge on extraneous offenses and refused to include her

specifically-requested instruction; and (2) whether the trial court erred when it denied

Smith’s motion for mistrial when the State commented on her pre-arrest silence. We

affirm.

                                          I.   BACKGROUND3

          A Grimes County jury convicted Smith of capital murder in the shooting death of

her husband Carey Smith and her father-in-law Charles Smith in the early-morning hours

of December 7, 2002, as they both slept. She was sentenced to life in prison.                          See

TEX. PENAL CODE ANN. §§ 19.03(7)(a); 12.31(a) (West 2011).

          2
              See TEX. R. APP. P. 47.1.
          3
           As this case is on remand and the parties are familiar with the facts of the underlying cause, we
will not recite them in this opinion. See TEX. R. APP. P. 47.1. Instead, we will incorporate the background
information detailed in Texas Court of Criminal Appeals opinion. See Smith v. State, 332 S.W.3d 425,
428–38 (Tex. Crim. App. 2011). We will, however, provide supplemental background pertinent to the
issues in this appeal.

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      Prior to his murder, Carey and Smith were married for a little more than two years,

after a brief courtship. Both were retired correction officers from the Texas Department

of Criminal Justice, and witnesses described the couple’s marriage as one of

convenience rather than love.   Carey and his father Charles ran a hay business on their

property, and witnesses described Charles as a widower who suffered from a variety of

maladies that required home-assisted care.

      Prosecutors presented evidence and elicited testimony from a variety of

witnesses during its case-in-chief including from Smith’s ex-husband and one-time

co-defendant, Daniel “Boone” Gardner, Grimes County sheriff’s investigators, the

medical examiner, and scientific/DNA experts, who tested evidence collected from the

crime scene.      More specifically, the State elicited testimony and presented

evidence—admitted for the limited purpose of showing motive and state of mind—that

Smith had taken out credit cards under Carey’s name, as well as in her own name, in

excess of tens of thousands of dollars, which she concealed from Carey.

       II.     EXTRANEOUS ACTS AND OFFENSES AND CHARGE ERROR

      In her third and fourth issues, Smith asserts that the trial court erred when it

overruled her objection to the court’s charge and subsequently refused to include her

requested instruction that required the jury to find beyond a reasonable doubt that Smith

had committed the extraneous offenses before they could consider them for any

purposes, and that this error caused some harm requiring a reversal.

A.    Standard of Review and Applicable Law

      We review jury charge issues under the standard set forth in article 36.19 of the

code of criminal procedure as interpreted by Ngo v. State, 175 S.W.3d 738 (Tex. Crim.


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App. 2005) (en banc).       See TEX. CODE CRIM. PROC. ANN. art. 36.19 (West 2006). “Our

first duty in analyzing a jury-charge issue is to decide whether error exists.”     See Ngo,

175 S.W.3d at 743 (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App.

2003) (en banc)).     If we find error, we analyze that error for harm, depending on

whether the defendant preserved error by objection.             Id.   If a defendant properly

objected to the charge, we will reverse for jury-charge error if we find “some harm” to a

defendant’s rights.   Id.    However, if a defendant failed to object or stated that he had

no objection to the charge, we will not reverse for the jury-charge error unless the record

shows “egregious harm” to the defendant.       Id. at 743–44.

       Extraneous acts used to show a person’s character or character traits are

generally inadmissible to prove action in conformity with the current offense, but if its

offer is used to prove motive, opportunity, intent, preparation, plan, knowledge, identity,

or absence of mistake or accident, it is admissible, provided that reasonable notice of its

introduction is given to the accused.       See TEX. R. EVID. 404.        Further, during the

prosecution of a murder, the state or defendant:

       shall be permitted to offer testimony as to all relevant facts and
       circumstances surrounding the killing and the previous relationship existing
       between the accused and the deceased, together with all relevant facts
       and circumstances going to show the condition of the mind of the accused
       at the time of the offense.

TEX. CODE CRIM. PROC. ANN. art. 38.36 (West 2005). If extraneous acts are deemed

admissible by the trial court, “the jurors must be instructed about the limits on their use of

that extraneous [act] if the defendant so requests.”     Ex parte Varelas, 45 S.W.3d 627,

631 (Tex. Crim. App. 2001) (en banc).       Furthermore, if a defendant requests a limiting

instruction to the admitted extraneous acts, she is entitled to one.     See id. A trial court


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errs when it fails to give a requested limiting instruction in this situation.   See id. (citing

Abdnor v. State (Abdnor II), 808 S.W.2d 476, 478 (Tex. Crim. App. 1991)).               Finally,

when extraneous offenses and acts are admitted for a limited purpose, a defendant is

entitled, during the guilt/innocence phase of the trial to request an instruction in the

charge that jurors are not to consider extraneous acts or offenses admitted for a limited

purpose unless they believe beyond a reasonable doubt that those extraneous acts were

committed by the defendant.       See Varelas, 45 S.W.3d at 631–32 (citing George v.

State, 890 S.W.2d 73, 76 (Tex. Crim. App. 1994) (en banc)). Likewise, if a defendant’s

counsel requests an instruction for the jury that they “could not consider extraneous act

evidence unless they believed beyond a reasonable doubt that the [defendant]

committed those acts, the requested charge should have been given.” Varelas, 45

S.W.3d at 631.

B.     Discussion

       The following portion of the charge was provided to the jury regarding extraneous

offenses/acts:

       2.     The word “evidence” as used in this Charge means the testimony of
       the witnesses and exhibits admitted as evidence by the Court. In arriving
       at your verdict, consider only the testimony introduced here under oath and
       such exhibits, if any, as have been admitted as evidence under the rulings
       of the Court. Statements made by the attorneys are not evidence. In
       your deliberations, you will not consider or discuss anything that is not
       represented by the evidence in this case. You must disregard any
       testimony or exhibit the Court has stricken or not admitted. Evidence
       admitted for a limited purpose must be considered for that purpose only.

       Before the court’s charge was read to the jury, Smith’s counsel objected to the

Court’s charge stating, in pertinent part:




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DEFENSE COUNSEL:   Number four. The Defendant objects that this
                   Charge fails to include a limiting instruction
                   regarding certain extraneous matters that were
                   introduced before the jury which showed motive
                   or state of mind.

                   More specifically, there was evidence of
                   possible violations of the law involving credit
                   card abuse and misuse of credit cards which
                   were extraneous matters or acts of misconduct
                   for which the Court gave a limiting instruction at
                   the time they were introduced into evidence.
                   But the Court has failed in its Charge to include
                   a limiting instruction limiting the jury’s
                   consideration of such extraneous offenses or
                   acts of misconduct to the purpose or reason for
                   which they were introduced. And they were
                   not introduced and should not be considered by
                   the jury unless first they were believed beyond
                   a reasonable doubt to have occurred and,
                   second, they can only be considered for the
                   limited purpose of either motive or state of mind
                   for which the State specifically informed the
                   Court they were introducing them for. So we
                   object to the Charge not having a limiting
                   instruction appearing therein.

                   ....

THE COURT:         Now, on the question of limiting instruction,
                   limiting the use of evidence for the purpose for
                   which it was to be admitted. I would refer you
                   to the last sentence in paragraph two which
                   says “evidence admitted for a limited purpose
                   must be considered for that purpose only.” Did
                   you see that?

DEFENSE COUNSEL:   I did see that, Your Honor.

THE COURT:         Okay. And I believe after every piece of
                   evidence that was admitted for a limited
                   purpose that the jury was instructed that they
                   would consider it only for the purpose that it
                   was offered, which I believe was motive at that
                   time.


                             6
                                   ....

                                   I’m not going to change.

                                   ....

                                   All of your objections are overruled.

       Smith argues that the trial court erred in its charge to the jury regarding

extraneous acts of credit card abuse because it did not require the jury to find beyond a

reasonable doubt that Smith committed the extraneous acts before it could consider

those acts for any purpose. We agree.        If a defendant requests a reasonable doubt

instruction regarding extraneous acts in the court’s charge, the defendant is entitled to it.

See Varelas, 45 S.W.3d at 631–32; George, 890 S.W.2d at 76.           Failure to include the

reasonable doubt instruction amounts to error by the trial court.          See Varelas, 45

S.W.3d at 631–32.       The record in this case clearly shows that Smith’s counsel

requested that the trial court include the reasonable doubt instruction, and that request

was denied by the trial court. We respectfully disagree with the trial court’s position that

the charge sufficiently addressed Smith’s objections.            A limiting instruction of

extraneous evidence is separate and distinct from the reasonable doubt instruction

requested by Smith’s counsel for the jury charge.      Compare Abdnor II, 808 S.W.2d at

478 (noting the trial court’s error for not including a requested limiting instruction on

evidence of defendant’s extraneous offenses admitted to show prior inconsistent

statements), with George, 890 S.W.2d at 76 (holding that a separate instruction is

required, if requested by a defendant, from the trial court to the jury to not consider

extraneous acts/offenses, unless it believes that the defendant committed those




                                             7
acts/offenses beyond a reasonable doubt). Accordingly, we conclude that the trial court

erred for not including the requested George instruction in its charge.

       The record indicates that Smith’s counsel objected to the charge error; thus, we

will analyze the error to determine whether “some harm” was placed on Smith’s rights to

require reversal.    See Ngo, 175 S.W.3d at 743 (citing Almanza v. State, 686 S.W.2d

157, 171 (Tex. Crim. App. 1984) (en banc)).       To satisfy our harm analysis, the record

must show that a defendant has “suffered actual, rather than merely theoretical, harm

from a jury instruction error.”   Id. at 750 (citing Almanza, 686 S.W.2d at 174); see

Dickey v. State, 22 S.W.3d 490, 492 (Tex. Crim. App. 1999) (en banc) (citing Airline v.

State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986) (en banc)). “[P]resence of any

harm, regardless of degree, is sufficient to require a reversal of the conviction.”   Dickey,

22 S.W.3d at 492.      In our review, we determine whether the error was calculated to

injure the rights of the defendant examined “in light of the entire jury charge, the state of

the evidence, including the contested issues and weight of probative evidence, the

argument of counsel, and any other relevant information revealed by the record of the

trial as a whole.”   Almanza, 686 S.W.2d at 171; see TEX. CODE CRIM. PROC. ANN. art.

36.19 (West 2006).

       Here, Smith argues that the charge itself, which included only a general

limited-purpose instruction of the extraneous acts evidence, gave the jury no guidance

as to how to determine if the extraneous acts were committed and left the jury with no

choice but to conclude that Smith had committed the extraneous offenses.                 We

disagree. The State directs us to the record in which the trial court admonished the jury

during the trial to consider the credit-card evidence solely for the purpose of motive, if


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they so believed it showed motive.     The trial court stressed to the jury that the mere fact

that the credit-card evidence was admitted for the limited purpose of proving motive did

not mean that it did, in fact, prove motive.       The charge, again, reiterated that point—

that is, the evidence was admitted for a limited purpose and that they could only consider

it for a limited purpose, if they believed it occurred to prove that limited purpose.

       Next, the jury heard sufficient evidence that Smith incurred credit card debt in

Carey’s name, without Carey’s knowledge, and struggled to pay off the debt.         Evidence

supporting the State’s theory of motive weighed in the prosecution’s favor based on the

credit card records and testimony from Smith and Boone’s daughter Tori Sword, Smith’s

ex-husband Boone, and Smith’s friend Niki Johnson. The jury had the choice, based on

the evidence, to disbelieve the State’s theory of credit card abuse to prove motive for

capital murder. As such, the credit card evidence, admitted for its limited purpose, did

not undermine Smith’s defense so as to cause harm.          See Abdnor v. State, 871 S.W.2d

726, 740–41 (Tex. Crim. App. 1994) (en banc).

       Smith further argues that the State’s focus on the credit card evidence during

closing arguments demonstrated the State’s heavy reliance on that evidence to prove its

case without ever telling the jury that this alleged credit card abuse had to be found

beyond a reasonable doubt. The State’s argument was simply that—argument, not

evidence. The trial court’s charge admonished the jury of that fact, as well.           It was

undisputed that the State relied on the credit card evidence to prove its case because it

was offered to prove Smith’s motive for the murders.          Again, during trial and in the

court’s charge, the trial court instructed the jury to consider the credit card evidence

solely for that limited purpose, if it chose to believe the State’s theory.   Smith’s reliance


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on Abdnor to argue that the State’s references to the alleged credit card abuse during

closing arguments were “partisan comments” are misguided, because the jury was

admonished by a limiting instruction during trial and to an extent in the charge that they

should consider the admitted evidence solely for its limited purpose.     See Abdnor, 871

S.W.2d at 740.    Here, unlike Abdnor, a limiting instruction was given to the jurors.   Id.

See Ray v. State, 764 S.W.2d 406, 414 (Tex. App.—Houston [14th Dist.] 1988, pet.

ref’d) (referencing the presumption stated in Rose v. State, 752 S.W.2d 529, 554 (Tex.

Crim. App. 1988) that the jury follows the trial court’s instructions).

       Accordingly, we conclude that the trial court’s charge error was harmless. While

the charge was incomplete, it did not give the jury the unfettered ability to give unlimited

weight to the extraneous acts so as to injure Smith’s rights, and “an erroneous or

incomplete jury charge . . . does not result in automatic reversal of a conviction.”

Abdnor, 871 S.W.2d at 731.           Instead, it gave the jury a limited window of how to

consider the evidence and for what purpose.           Smith’s third and fourth issues are

overruled.

                              III.     PRE-ARREST SILENCE

       In her final issue, Smith contends that the trial court committed reversible error

when it denied her motion for mistrial, when the State commented on Smith’s pre-arrest

silence during closing argument.

A.     Standard of Review

       We are required to reverse a judgment of conviction or punishment if the record in

a criminal case reveals constitutional error, subject to a harmless error review, if we

determine beyond a reasonable doubt that the error contributed to the conviction or


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punishment of the defendant.    See TEX. R. APP. P. 44.2(a). “A trial court’s denial of a

motion for mistrial is reviewed under an abuse of discretion standard.”         Simpson v.

State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003) (citing Wood v. State, 18 S.W.3d

642, 648 (Tex. Crim. App. 2000)).

B.    Discussion

      The portion of the record in which Smith appeals involves comments made during

the State’s closing argument. The following colloquy took place:

      PROSECUTOR:                   ....

                                    I know they made her mad, but it’s because she
                                    wasn’t wanting to talk about any of this they had
                                    found and she knew she was caught and they
                                    knew. They found the credit cards and they
                                    knew they found the reason and she shut
                                    down. She knew she was on the hot seat.
                                    And she didn’t say look, I made a mistake—

      DEFENSE COUNSEL:              Judge, Your Honor, I have to object.       May I
                                    approach the bench?

                                    (Discussion at the bench out of hearing)

      THE COURT:                    Ladies and gentlemen, you will disregard the
                                    last statements of [the prosecutor].

      DEFENSE COUNSEL:              Judge, because that was a comment on the
                                    right to remain silent I’m going to request that
                                    the Court make that instruction which it’s done
                                    and I think the prejudicial effect of that
                                    comment cannot be cured by the instruction
                                    and request a mistrial.

      THE COURT:                    Overruled.


      The first question in this analysis turns on whether the State’s comment on

Smith’s pre-arrest silence amounted to constitutional error.   See TEX. R. APP. P. 44.2(a).


                                             11
Courts in Texas have held that “pre-arrest silence is a constitutionally permissible area of

inquiry.”   Waldo v. State, 746 S.W.2d 750, 755 (Tex. Crim. App. 1988) (en banc) (citing

Jenkins v. Anderson, 447 U.S. 231, 238 (1980)).       Thus, because this issue on appeal

does not involve a constitutional error, we will abandon our rule 44.2(a) inquiry and apply

the abuse of discretion standard of review set forth in Simpson. See 119 S.W.3d at

272.

       A mistrial is appropriate for “‘highly prejudicial and incurable errors,’” such as

those that are “‘clearly prejudicial to the defendant and are of such character as to

suggest the impossibility of withdrawing the impression produced on the minds of the

jurors.’” Id. (quoting Wood, 18 S.W.3d at 648).       “Ordinarily, a prompt instruction to

disregard will cure error . . .” and not amount to an abuse of discretion, if the trial court

denies the motion for mistrial.   Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App.

2000) (en banc).

       In this case, assuming without deciding that the comment by the State objected by

Smith was error, it was not one that was “highly prejudicial” or “incurable” requiring a

mistrial because it was a brief discussion and one that could be withdrawn from the

minds of the jurors.    See Simpson, 119 S.W.3d at 272.          Further, again, assuming

without deciding that the prosecutor’s comments amounted to error, the trial court in this

case promptly admonished the jury to disregard the statements made by the State’s

prosecutor. We conclude that the trial court did not commit reversible error or abuse its

discretion in denying Smith’s motion for mistrial. Smith’s fifth issue is overruled.




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                                  IV.    CONCLUSION

       We affirm the judgment of the trial court.




                                                    __________________________
                                                    GINA M. BENAVIDES,
                                                    Justice


Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
12th day of April, 2012.




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