                                       NUMBER 13-07-061-CR

                                     COURT OF APPEALS

                        THIRTEENTH DISTRICT OF TEXAS

                           CORPUS CHRISTI - EDINBURG


ELIZABETH SMITH,                                                               Appellant,

                                                         v.

THE STATE OF TEXAS,                                                            Appellee.


 On appeal from the 130th District Court of Matagorda County, Texas.


                                 MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Yañez and Benavides
               Memorandum Opinion by Justice Yañez

       A jury found Elizabeth Smith guilty of capital murder.1 On appeal, Elizabeth argues

that the evidence of her guilt was legally and factually insufficient. Having found sufficient

evidence to convict Elizabeth of capital murder under the law of parties, we affirm the trial



       1
           T EX . P EN AL C OD E A N N . § 19.03 (Vernon Supp. 2008).
court’s judgment.

                                         I. THE TRIAL EVIDENCE2

       Elizabeth was married to Justin Smith at the time of the offense. The two lived

together in Matagorda County, as did Justin’s parents, Thomas and Toni Smith. Justin and

Elizabeth did not have a good relationship with Thomas and Toni. Justin’s relationship with

his parents was particularly troubled. On December 9, 2004, Thomas informed a friend,

Richard Hahn, of a confrontation he had recently had with Justin. Thomas told Hahn that

Justin had stolen property from him and that he had given Justin an ultimatum: Justin had

to return the stolen property by Monday, December 13, or else Thomas would inform the

authorities of the theft. This ultimatum was highly disconcerting to Justin, who had served

time in prison and was currently on parole.

       In the evening of December 11, Justin and Ellizabeth were driving around town with

Justin’s friend and distant cousin, Craig Sabrsula. Justin told Sabrsula that he was in

trouble with his parents for stealing their guns, but that he had a solution for his troubles.

Sabrsula asked Justin to state the solution. According to Sabrsula, Justin remained quiet,

but Elizabeth responded by “laughing hysterically” and stating, “You’re not going to like

what he has planned. You’re not going to like what we have to do[.]” Justin then told

Sabrsula that he was going to kill his parents. Justin asked Sabrsula for his assistance in

committing the murder, but Sabrsula refused.

       In the evening of December 12, Justin and Elizabeth dropped off their infant

daughter, Shelbie, at the home of a friend, Heather Green. Prior to arriving at Green’s



       2
           The following inform ation is drawn from trial testim ony presented through the State’s witnesses.

                                                      2
home, Justin phoned Green and notified her that he and Elizabeth would be leaving

Shelbie with her for the night. Justin told Green that “he had business to take care of with

his dad[.]”

       On Monday, December 13, Justin met with Sabrsula after Sabrsula got out of work.

Justin was driving a Suburban owned by his parents. Sabrsula joined Justin in the

Suburban, and Justin then told Sabrsula that he killed his parents, Thomas and Toni.

Justin told Sabrsula that, on the night of the murder, Elizabeth drove him to his parents’

residence and dropped him off. Justin further told Sabrsula that he had a gun with him

when Elizabeth left him at his parents’ residence, and that he used the gun to murder his

parents.

       Justin drove Sabrsula to a storage building. Sabrsula assisted Justin in unloading

items from the Suburban and placing them into a storage room. Elizabeth met Justin and

Sabrsula at the storage building. The next day, Justin drove Sabrsula in the Suburban to

Thomas and Toni’s residence. Justin and Sabrsula entered the trailer, where Sabrsula

saw Thomas’s and Toni’s dead bodies wrapped in clear plastic tarps. In the days to follow,

Justin would continue to drive Sabrsula to the trailer. Justin would enter the trailer, but

Sabrsula would not. On some of these occasions, Sabrsula saw Elizabeth enter the trailer.

       On December 20, Texas Ranger David Maxwell contacted Justin and Elizabeth in

response to reported concern regarding the whereabouts of Thomas and Toni. Maxwell

conducted an interview with Elizabeth that day. When asked where Thomas and Toni

were, Elizabeth told Maxwell that, to her knowledge, they were on a three or four-week

vacation, during which time they were looking for racehorses to purchase. Elizabeth also

told Maxwell that Thomas and Toni did not like her, and that Justin’s life was better with his

                                              3
parents out of town. When Elizabeth was asked about the last time she saw Thomas and

Toni, Elizabeth gave Maxwell vague answers. Elizabeth was unable to tell Maxwell when

she last saw Thomas and Toni, where they might be, or when she last talked to them.

Maxwell also interviewed Justin later that day.

       When Elizabeth went to the police department to speak with Maxwell, Green

accompanied her. According to Green, Elizabeth appeared calm before the interview, but

appeared nervous afterwards. Green and Elizabeth were driving together after the

interview when Elizabeth told Green that she had to tell her something. Elizabeth became

emotional and told Green that Justin had killed his parents while Green was babysitting

Shelbie on the night of December 12. Elizabeth told Green that when Justin called her

about babysitting Shelbie, and told her about needing to take care of some “business,”

Justin was referring to killing his parents. Elizabeth further told Green that after Shelbie

was left in Green’s care, she drove Justin to his parents’ residence and left him there;

Justin later called Elizabeth and told her that he had shot and killed his parents. As

Elizabeth was relating these events to Green, Elizabeth quickly ceased being emotional

and soon appeared calm and normal to Green.

       Green and Elizabeth then drove to Elizabeth and Justin’s rented home, which Green

had recently agreed to clean for money. Green began cleaning the home and finished with

the work later that day. After Green cleaned the home and was preparing to leave, Green

observed Elizabeth place a duffel bag containing a large amount of jewelry into a box.

Elizabeth asked Green what she had done with gun shell casings that had been on an end

table in the living room. Green told Elizabeth that she had placed the shell casings in the

master bedroom while cleaning. Elizabeth then retrieved the shell casings from the

                                             4
bedroom and asked Green where the casings could be hidden. At some point, Elizabeth

placed the box containing the duffel bag in Green’s vehicle; Elizabeth asked Green to hold

onto the box until the following day, at which time Elizabeth and Justin would come to

retrieve it. Green did not see what Elizabeth did with the shell casings. The following day,

on December 21, law enforcement forced their way into Thomas and Toni’s residence,

resulting in the discovery of their bodies. Green became aware of this discovery the same

day. Green then opened the box that Elizabeth had given her and discovered the shell

casings inside. The shell casings would later be tied to the murders of Thomas and Toni.

       Justin and Elizabeth fled Matagorda County around the time Thomas’s and Toni’s

bodies were discovered. A warrant was issued for Justin’s arrest. On January 8, 2004,

Justin and Elizabeth were apprehended in Ruidoso, New Mexico. Authorities had been

preparing an arrest warrant for Elizabeth prior to her apprehension. Once apprehended,

Elizabeth gave a statement to police implicating Justin in his parents’ murder. Elizabeth

denied knowing of Justin’s intent to murder Thomas and Toni, and her statement appeared

to dispute the contention that she had dropped Justin off at his parents’ residence the night

of their murder.

                                               II. APPLICABLE LAW

       “A person is criminally responsible as a party to an offense if the offense is

committed by his own conduct, by the conduct of another for which he is criminally

responsible, or by both.”3 A person is criminally responsible for an offense committed by

the conduct of another if, “acting with intent to promote or assist the commission of the



       3
       T   EX .   P EN AL C OD E A N N . § 7.01(a) (Vernon 2003).

                                                           5
offense, he solicits, encourages, directs, aids, or attempts to aid the other person to

commit the offense.”4

              Under the law of parties, the State is able to enlarge a defendant’s
      criminal responsibility to acts in which he may not be the primary actor.
      When an accused promotes or assists in the commission of an offense, he
      also shares the criminal responsibility. If the State is to prove the accused’s
      guilt as a party, it must first prove the guilt of another person as the primary
      actor. In order to establish liability as a party, it must be shown that, in
      addition to the illegal conduct by the primary actor, the accused harbored the
      specific intent to promote or assist the commission of the offense. The
      accused must know that he was assisting in the offense’s commission. The
      agreement, if any, must be before or contemporaneous with the criminal
      event. The evidence must show that at the time of the commission of the
      offense, the parties were acting together, each doing some part of the
      execution of the common design.

             While an agreement of the parties to act together in a common design
      seldom can be proved by direct evidence, reliance may be had on the
      actions of the parties, showing by either direct or circumstantial evidence, an
      understanding and common design to do a certain act.

              The State must show more than mere presence to establish
      participation in a criminal offense. Mere presence or even knowledge of an
      offense does not make one a party to the offense. Nevertheless, mere
      presence is a circumstance tending to prove that a person is a party to the
      offense, and when taken with other facts, may be sufficient to show that he
      was a participant. In determining whether an accused participated in the
      offense as a party, the fact finder may examine the events occurring before,
      during, and after the commission of the offense.5

                                         III. LEGAL SUFFICIENCY

      In addressing a legal sufficiency challenge, we review all the evidence in the light

most favorable to the verdict and assume that the trier of fact resolved conflicts in the

testimony, weighed the evidence, and drew reasonable inferences in a manner that



      4
          Id. § 7.02(a)(2) (Vernon 2003).

      5
          Barnes v. State, 62 S.W .3d 288, 295-97 (Tex. App.–Austin 2001, pet. ref’d) (citations om itted).

                                                      6
supports the verdict.6 It is not necessary that every fact point directly and independently

to the defendant's guilt, but it is enough if the conclusion is warranted by the combined and

cumulative force of all the incriminating circumstances.7                 We must consider all the

evidence, rightly or wrongly admitted, that the trier of fact was permitted to consider.8

       In the instant case, the jury charge permitted the jury to assess Elizabeth’s guilt as

follows:

               Now if you find from the evidence beyond a reasonable doubt that on
       or about the 13th day of December, 2004, in Matagorda County, Texas,
       JUSTIN SMITH did intentionally or knowingly cause the death of an
       individual, THOMAS SMITH, by shooting him with a firearm and TONI
       SMITH by shooting her with a firearm or stabbing her with a knife, and that
       the defendant ELIZABETH SMITH, then and there knew of the intent, if any,
       of said JUSTIN SMITH to shoot and kill the said THOMAS SMITH and to
       shoot or stab and kill the said TONI SMITH and the defendant acted with
       intent to promote or assist the commission of the offense by JUSTIN SMITH
       to shot [sic] or stab and kill the said THOMAS SMITH and TONI SMITH by
       encouraging, directing, aiding or attempting to aid JUSTIN SMITH to commit
       the offense of causing the death of THOMAS SMITH and TONI SMITH, you
       will find the defendant, ELIZABETH SMITH, guilty of capital murder as
       charged in the indictment.

On appeal, Elizabeth does not challenge the sufficiency of the evidence establishing that

Justin caused the deaths of his parents as stated in the jury charge. The only question

Elizabeth poses to this Court is whether there was sufficient evidence that she acted with

the intent to promote or assist Justin in murdering his parents.

       Based on the testimony of Sabrsula and Green, the jury heard evidence that

Elizabeth had dropped off Justin at his parents’ residence on December 12, the night of


       6
           See Rollerson v. State, 227 S.W .3d 718, 724 (Tex. Crim . App. 2007).

       7
           Hooper v. State, 214 S.W .3d 9, 13 (Tex. Crim . App. 2007).

       8
           See Conner v. State, 67 S.W .3d 192, 197 (Tex. Crim . App. 2001).

                                                      7
their murder. The trial evidence permitted the jury to conclude that Justin was at the

residence for a prolonged period of time. By not having his Ford Explorer parked outside

his parents’ residence, Justin was able to significantly reduce the chance that a neighbor

or passerby would connect his presence to the scene of the crime on the night in question.

Furthermore, as a result of Elizabeth dropping him off, Justin was able to leave the crime

scene in his parents’ Suburban—which the trial evidence indicated was the vehicle Justin

preferred to drive—without leaving behind evidence of his presence (i.e., his Explorer). It

is thus clear that Elizabeth’s act of driving and leaving Justin at his parents’ residence

assisted his commitment of the charged offense. The only remaining matter left to address

is whether Elizabeth had the intent to assist Justin in his criminal undertaking.

        Sabrsula testified that Justin discussed his plan to murder his parents in front of

Elizabeth, who exhibited neither surprise nor disapproval during this discussion. Sabrsula

and Green both revealed statements Elizabeth made that suggested she had knowledge

of Justin’s intent to murder his parents. Hahn’s testimony established that (1) Justin was

on bad terms with his parents during the days preceding the murders, and (2) Justin was

aware of his parents’ intent to report his thefts to the authorities on December 13.

Sabrsula’s testimony revealed that Elizabeth was aware of this conflict between Justin and

his parents.      Inside the parents’ residence, law enforcement uncovered Elizabeth’s

fingerprint on a cellophane wrapper, which was packaging material for the type of plastic

tarp found covering Thomas’s and Toni’s bodies.9

        Elizabeth’s behavior after the murders created an inference that she assisted in the


        9
         See generally Clayton v. State, 235 S.W .3d 772, 779 (Tex. Crim . App. 2007) (recognizing that prints
can provide an additional, increm ental piece of circum stantial evidence of one’s guilt).

                                                      8
commission of the offense. This behavior consisted of the following: (1) wearing Toni’s

jewelry immediately after the murders; (2) telling varying stories regarding how the jewelry

came into her possession; (3) telling conflicting stories regarding the whereabouts of

Thomas and Toni; (4) entering Thomas and Toni’s residence, which, as testified to by

Sabrsula and Maxwell, contained Thomas’s and Toni’s readily visible bodies upon entry;

(5) selling or attempting to sell jewelry belonging to Thomas and Toni at various pawn

shops; (6) lying to law enforcement during an interview with Maxwell;10 (7) hiding evidence

related to the murders;11 (8) leaving town in Thomas and Toni’s Suburban at the time their

bodies were discovered;12 (9) evading the detection of authorities; and (10) showing utter

indifference to Thomas’s and Toni’s murders when apprehended by law enforcement.

        Viewing the evidence in the light most favorable to the jury’s verdict, we conclude

that a rational trier of fact could have found beyond a reasonable doubt all the essential

elements of capital murder and Elizabeth’s guilt as a party to the offense. Elizabeth’s legal

sufficiency challenge is overruled.

                                        IV. FACTUAL SUFFICIENCY

        When reviewing the factual sufficiency of the evidence to support a conviction, we

review all the evidence in a neutral light, favoring neither party.13 We then ask (1) whether

        10
           See generally Guevara v. State, 152 S.W .3d 45, 50 (Tex. Crim . App. 2004) (finding that inconsistent
statem ents and false statem ents to authorities are probative of wrongful conduct and are also circum stantial
evidence of guilt).

        11
          See generally id. (finding that one’s attem pt to conceal incrim inating evidence is probative of
wrongful conduct and is also circum stantial of guilt).

        12
            See generally Clayton, 235 S.W .3d at 780 (recognizing that the finder of fact m ay draw an inference
of guilt from the circum stance of flight).

        13
          W atson v. State, 204 S.W .3d 404, 414-15 (Tex. Crim . App. 2006); Drichas v. State, 175 S.W .3d
795, 799 (Tex. Crim . App. 2005).

                                                       9
the evidence supporting the conviction, although legally sufficient, is nevertheless so weak

that the jury’s verdict seems clearly wrong or manifestly unjust, or (2) whether, considering

conflicting evidence, the jury’s verdict is against the great weight and preponderance of the

evidence.14 An appellate court judge cannot conclude that a conviction is “clearly wrong”

or “manifestly unjust” simply because, on the quantum of evidence admitted, she would

have voted to acquit had she been on the jury.15 Nor can an appellate court declare that

a conflict in the evidence justifies a new trial simply because it disagrees with the jury’s

resolution of that conflict.16 Nevertheless, though due deference must be given to the fact

finder's determinations—particularly those concerning the weight and credibility of the

evidence—the reviewing court may disagree with the result in order to prevent a manifest

injustice.17

       In the instant case, there is no conflicting evidence in the record that would lead us

to conclude that the jury’s verdict is against the great weight and preponderance of the

evidence. The only evidence admitted during Elizabeth’s case-in-chief was Thomas’s and

Toni’s wills. Moreover, the evidence is not so weak that the jury’s verdict seems clearly

wrong or manifestly unjust. On appeal, Elizabeth proffers alternative perspectives through

which to view much of the evidence against her; these perspectives seek to portray

Elizabeth as a naive girl that would be blind to Justin’s criminal acts. The jury, however,

clearly rejected such a portrayal, and we give due deference to the jury’s assessments and


       14
            W atson, 204 S.W .3d at 414-15, 417; Johnson v. State, 23 S.W .3d 1, 11 (Tex. Crim . App. 2000).

       15
            W atson, 204 S.W .3d at 417.

       16
            Id.

       17
            Johnson, 23 S.W .3d at 9; Cain v. State, 958 S.W .2d 404, 407 (Tex. Crim . App. 1997).

                                                     10
determinations of the evidence. After a neutral review of all the evidence, both for and

against the jury’s finding of guilt, we find that the proof of Elizabeth’s guilt as a party to the

offense is not so obviously weak as to undermine confidence in the jury’s verdict, nor is the

proof of her guilt as a party, although adequate taken alone, greatly outweighed by contrary

proof. Elizabeth’s factual sufficiency challenge is overruled.

                                        V. CONCLUSION

       We affirm the trial court’s judgment.




                                                    LINDA REYNA YAÑEZ,
                                                    Justice




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

Memorandum Opinion delivered and filed
this the 26th day of March, 2009.




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