Case Number: https://dallasnews.imgix.net/1488133799-joeearlsmith.jpg?auto=format&q=40&or=0&w=350

Judge: Bailey C. Moseley

Court: Court of Appeals Sixth Appellate District of Texas at Texarkana

Plaintiff's Attorney: Angela R. Smoak
Ricky Shelton

Defendant's Attorney: Ebb B. Mobley

Description: In January 2017, the State indicted Smith for the offense of murder, alleging that he shot
and killed his uncle, Jack Smith.1 Two days after the incident occurred, and following a multi
state search for Smith, he admitted that he had shot Jack multiple times with a shotgun.2 At trial,
various witnesses testified to the events leading up to the shooting, and for the most part, the
witnesses’ recollections were substantially similar. Many of them testified that Smith and Jack
had been involved in a long-standing family feud over a piece of property. At the time of the
shooting, Smith, Jack, and various members of their families were living on the property in three
separate homes.
1The indictment against Smith reads “that [Smith], on or about the 22nd day of February, 2017, did then and there intentionally or knowingly cause the death of an individual, namely [Jack], by shooting [Jack] with a firearm, a deadly weapon.”

2Amy Gruszecki, M.D., a forensic pathologist for American Forensics in Mesquite, Texas, performed Jack’s autopsy. Gruszecki testified that Jack’s death was the result of multiple gunshot wounds. She explained that the first shot entered Jack’s right arm and then traveled through his chest cavity into his right lung. Gruszecki stated that the first shot was not immediately fatal. The second shot entered Jack’s head. Gruszecki explained that the second shot had been fired from a closer distance than the first shot and that the second shot was immediately fatal.


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Deborah Diane Walker (Diane), Jack’s step-daughter, testified that she lived on the
property with Jack and her mother, along with Diane’s youngest son, and her brother, Michael
Todd. On February 22, 2017, Diane was outside helping Jack trim the limbs of a catalpa tree when
Smith approached the two of them. According to Diane, Smith asked Jack “what do you think
you’re doing, what are you doing over here[?]” Jack responded by telling Smith, “[G]o on back
over there to your house and leave me be, let me do what I’m doing.” A few moments later, Smith
began taking photographs of Jack trimming the trees. Again, Jack repeated his request that Smith
leave the area. Diane then began telling Smith that Smith’s mother and brother knew they were
trimming the trees and that they had no objections to them doing so. According to Diane, Smith
left, and then went inside his mother’s house. Diane stated that after approximately five minutes,
she saw Smith exit the house. Diane said Jack told Smith, “[G]et on [your] side of the fence . . .
let me do what I’m doing[,] . . . [j]ust leave me be.” Diane explained that Jack did not curse at
Smith, call him names, or make any rude gestures toward him.
Smith then went back to his house, at which time Diane told Jack that “[Smith] was either
going to go inside and curl up with his tail between his legs like a whooped puppy or he was going
to call the cops on us like he had called the cops on us before.” Jack agreed. Diane then began
working again when she heard “a noise that wasn’t normal, it was a loud boom or thud or, you
know, something.” Diane stated that she turned around and saw Jack bent over, holding his side,
and attempting, unsuccessfully, to walk.3
3Diane explained that after the first shot, Jack “hollered. . . . Like a scream [she’d] never heard in [her] life.” She stated, “It wasn’t a scream, it was a noise. . . . Scream is a little. It was a noise that you knew somebody was seriously hurt.”


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At that point, Diane saw Smith, no more than fifteen feet away from her, and he was
holding a long gun. Diane asked Smith, “[A]re you crazy[?]” Smith then took two more steps
toward Jack and “he shot [Smith] again . . . right in the head.”4 Diane told Smith he was crazy and
then asked Smith if he “realize[d] [he was] going to prison.” Smith responded, “I don’t give a
damn that mother fucker is dead.” Smith then pointed the gun at Diane and told her that she “was
next if [she] didn’t get off the fucking property.” Diane responded by informing Smith that she
was not on his property; instead, she was “on the fire lane that everybody had access to.” Smith
replied, “I told you you better back the fuck up or you’re next.” Smith’s sister, Patty, then arrived,
“hollering no, [Smith], no.” It was then that Smith began walking back toward his house, carrying
the weapon with him. Diane described Smith’s demeanor as calm and casual. She explained that
Smith was not running, but instead, was walking at a “[v]ery casual” pace. At that time, Diane
was not certain Jack was deceased, “until -- until [Smith] walked away and he was completely out
of sight.” Diane stated, “When I saw where ever the bullet went in that’s when I saw his brains.”5
At the punishment phase of the trial, Smith testified that he had worked since he was fifteen
years old. Smith stated that he could not recall “a lot” of what happened on the day of the shooting.
According to Smith, there had been tension between Smith and Jack, “like a pressure cooker, this
has been going on for over ten years . . . .” Smith explained that the animosity between the pair
began to grow when Jack and his family moved onto the property. Smith stated that Jack was a
4Diane stated that Smith was no more than ten feet away from Jack when he shot him in the head. After the second shot, Diane told her brother, who was standing outside, that he needed to “call the cops, that Jackie had been shot.” Diane explained, “There was no time to do anything between the shots.”

5Diane stated that her brother, Michael Todd, went to retrieve a pistol after the incident had occurred, but that he never fired the weapon.


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controlling individual and that he would decide “who could come on the property, who could hunt,
who would fish . . . .” As a result of the problems, Smith had a one-acre tract severed out of the
property and, eventually, had it enclosed with a privacy fence.6 Smith also had a shop built on the
property for his personal use.
According to Smith, Jack “acted like everything belonged to him.” Smith stated, however,
that there had never been any violence between the two of them prior to the shooting incident.
Smith explained that he had had problems with Jack’s friends and relatives mistreating his
property, stating, “They just [do] doughnuts in the driveway, tear up my yard with four wheelers,
just irritants.” According to Smith, there was plenty of other land on which they could ride their
four-wheelers. “[T]hey had no reason to be in my yard except for harassment and irritation.”
Smith testified that he had contacted the sheriff’s department from “time to time” because
they would be making “all kinds of noise, whooping and hollering all night long, two or three
o’clock in the morning . . . .” On February 21, 2017, the day before the incident, Smith had
contacted the sheriff’s department claiming that Jack was trespassing on Smith’s mother’s yard
and trimming her catalpa trees.7 Smith explained, “[Y]ou don’t trim catalpa trees, they grow
naturally . . . .”8 The sheriff’s department did not respond to the call.
6Smith stated, “I had to pretty much spent [sic] my life savings on the lawyer’s fees and land surveys and deeds and everything just to try to keep my home.”

7Smith said he told Jack that he did not have permission to be cutting the trees and to “quit it.” Smith explained, “[Jack] turns around, gets in my face, I can do whatever I want, this is my property, I can do whatever I want. And I just, I turned around, I went back home. I was shaking and, you know, just upset and I called the sheriff’s department.”

8Smith had made several calls to the sheriff’s department over a five-year period. Smith said, “[T]hey would just come out and, you know, just kind of diffuse the situation, well, ya’ll go back on ya’ll’s place . . . and that would be the end of it.”


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Smith said that on the day of the shooting, he noticed Jack and Diane back on the property
trimming the same tree Jack had been working on the previous day. Smith then went to his
mother’s home to inquire about his mother’s whereabouts. After going back outside, Smith began
taking photographs of Jack. According to Smith, Jack and Diane began yelling at him to get off
the property and to “mind [his] own business.” Smith responded by telling them to stop cutting
the trees. Smith then went back to his shop, put down his camera, and noticed that his hands were
shaking. “I was just shaking, just angry, furious I guess, I don’t know.” Smith testified,
Just my mind starting running, you know, this has been going on for like ten years, you know, it’s never going to stop, it’s never going to end, you know, unless something happens, something is done. I’ve got lawyers, I’ve called the police. I’ve done everything that I could possibly do to get this to stop, to quit. I mean, I tried to do what was right and -- and I don’t know, I just -- I just felt that I -- I had -- it had to be ended and I – and I did, I did get my gun and I know -- I don’t keep a gun in the house, that gun was in my shop. I normally just use it for -- for killing snakes. You know, it’s a single shotgun and -- and I took it and I shot him.

Smith stated that he then shot Jack a second time. When Smith was asked if he pointed the gun at
Diane and threatened to kill her, he answered, “No, that’s a lie. That was not true.” However,
when asked again if he had pointed the gun at Diane, he stated, “Like I said there’s some of the
things I don’t remember. I just -- I just remember telling her that you people need to go back to
where ya’ll came from and leave us alone . . . .” Smith recalled hearing someone call his name.
Smith stated,
[T]hen I heard another voice come and said I’m going to kill you and then I -- I -- they just said I walked back but I know I ran, I ran back to my shop and I went in the side door and I -- I just, I put the gun down and I was panicking. I ran in the house, I got my keys, I got my wallet, I jumped in my vehicle and I just left, I just started driving.



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According to Smith, he then began driving to Florida, stopping only once in an attempt to sleep.9
A few days later, Smith was arrested without incident in Florida and then transported back to
Marion County.
During the punishment phase of the trial, several witnesses, including friends, family, and
business associates, testified on Smith’s behalf. Jessie Deware, IV, explained that he had
represented Smith during an eviction proceeding in justice court, which was eventually transferred
to district court as a trespass to try title case. Regarding the property at issue, Deware stated that
he believed Smith had been treated unfairly.
Smith’s wife, Sandra, testified that she and Smith had lived on the property for eighteen
years. Sandra’s testimony was consistent with Smith’s regarding the various problems Jack’s
family had caused on the property. Sandra said she felt personally harassed by Jack and his family.
According to Sandra, Smith was neither hot-tempered nor a violent person. When asked if Smith’s
anger over Jack’s actions was “just irritation or consumed,” Sandra answered that it was irritation,
but that it went “on and on.”
Eugene Mitchell testified that he had known Smith for at least thirty years. Mitchell
explained, “I couldn’t find nobody else no better than [Smith].” Mitchell said that Smith never
showed anger and that he had “never had any trouble out of [Smith].”
Walter Underwood described his relationship with Smith as “a casual business
relationship” and stated that he had known him for “[t]en, twelve, fourteen years.” Underwood
9Smith also explained that on his way to Florida, he stopped in Alabama at a Wal-Mart and asked an employee to text his wife to tell her that he was sorry and that he loved her. She complied with his request, and Smith left the store.


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stated that Smith had been an even-tempered person for years, but that he began to show signs of
mental or emotional distress about three or four years ago. Underwood said Smith did not talk to
him about the dispute and that he was not “privy to any of the details.”
Traci Powell testified that she had known Smith for more than twenty-five years.
According to Powell, Smith had never threatened her or been violent around her. Powell said she
was very surprised that Smith shot Jack.
Richard Hampton testified that he had known Smith for more than twenty-five years.
Hampton stated that he considered Smith a friend and that he had never known Smith to be rude,
ugly, or violent to anybody.
II. Sufficient Evidence Supported the Rejection of Smith’s Sudden Passion Defense
Smith contends he was acting under sudden passion when he shot and killed Jack. The
jury disagreed. On appeal, Smith contends the jury’s negative finding of sudden passion was in
error. Smith maintains he met his burden of proof by the preponderance of the evidence that at
the time he shot Jack, “he was in an uncontrollable rage, an autonomic state brought on by the
repeated provocations by his uncle about use and possession of their jointly held property.”
When a defendant is convicted of murder, he may argue at punishment that he caused the
death of the victim while under the influence of sudden passion arising from an adequate cause.
TEX. PENAL CODE ANN. § 19.02 (West 2011); McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim.
App. 2005) (citing TEX. PENAL CODE ANN. § 19.02(c), (d)). “‘Sudden passion’ means passion
directly caused by and arising out of provocation by the individual killed or another acting with
the person killed which passion arises at the time of the offense and is not solely the result of


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former provocation.” TEX. PENAL CODE ANN. § 19.02(a)(2). “‘Adequate cause’ means cause that
would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary
temper, sufficient to render the mind incapable of cool reflection.” TEX. PENAL CODE ANN.
§ 19.02(a)(1).10 If the defendant affirmatively proves sudden passion by a preponderance of the
evidence, the offense is a second degree felony. TEX. PENAL CODE ANN. § 19.02(d).11
Sudden passion must arise at the time the offense occurs and cannot result solely from
former provocation. Hernandez v. State, 127 S.W.3d 206, 213 (Tex. App.—Houston [1st Dist.]
2003, pet. ref’d). Neither ordinary anger nor fear alone raises the issue of sudden passion arising
from adequate cause. Id. at 213–14; Naasz v. State, 974 S.W.2d 418, 425 (Tex. App.—Dallas
1998, pet. ref’d) (finding defendant’s testimony of being angry and upset over culmination of
events did not rise to level of adequate cause). Likewise, a defendant may not rely on a cause of
his own making to support an argument for sudden passion. Smith v. State, 355 S.W.3d 138, 147
(Tex. App.—Houston [1st Dist.] 2011, pet. ref’d); Hernandez, 127 S.W.3d at 211 (finding ordinary
anger or causes of defendant’s own making are not legally adequate causes).
10Article 37.07 of the Texas Code of Criminal Procedure requires a jury finding on sudden passion to be unanimous, whether the finding is that the defendant did, or did not, act under the influence of sudden passion. Sanchez v. State, 23 S.W.3d 30, 41 (Tex. Crim. App. 2000) (Keller, J., concurring).

11In its jury instructions, the trial court instructed the jury on the “Special Issue” of sudden passion, explaining, in part, “‘Adequate cause’ means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.” It further instructed the jury that “‘[s]udden passion’ means passion directly caused by and arising out of provocation by the individual killed . . . which passion arises at the time of the offense and is not solely the result of former provocation.” The special issue instruction continued,

Now, bearing in mind the foregoing instructions, if you believe the defendant proved by a preponderance of the evidence that the defendant, having committed the offense of murder, caused the death of JACK SMITH under the immediate influence of sudden passion arising from an adequate cause, you must make an affirmative finding as to the special issue . . . .”


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Moreover, a defendant must prove that the homicide occurred while the passion still existed
and before there was reasonable opportunity for cool reflection. McKinney, 179 S.W.3d at 569.
Anticipation of an event and the preparation of a response indicate that a defendant had time to
deliberate over an action and did not act under the immediate influence of sudden passion. Id. at
570 (finding evidence that defendant returned home, sat at his desk for some time, and then
retrieved a gun in preparation for a fight showed deliberation and not sudden passion).
A. Legal Sufficiency
A defendant has the burden to prove sudden passion by a preponderance of the evidence
during the punishment phase of the trial. TEX. PENAL CODE ANN. § 19.02(d); Sanchez, 23 S.W.3d
at 35. Thus, the State was not required to negate the existence of sudden passion; rather, Smith
had the burden of proving it by a preponderance of the evidence. See Trevino v. State, 100 S.W.3d
232, 237 (Tex. Crim. App. 2003) (per curiam).
We review a challenge to the sufficiency of the evidence, on an issue in which the
defendant had the burden of proof at trial, under the same standard as is applied in civil cases. See
Ballard v. State, 161 S.W.3d 269, 270–71 (Tex. App.—Texarkana 2005), aff’d, 193 S.W.3d 916
(Tex. Crim. App. 2006). A legal sufficiency challenge to the evidence supporting a negative
finding on sudden passion involves two steps. “First, the record must be examined for evidence
that supports the finding, while ignoring all evidence to the contrary.” Howard v. State, 145
S.W.3d 327, 334 (Tex. App.—Fort Worth 2004, no pet.). “Second, if there is no evidence to
support the finding, then the entire record must be examined to see if the contrary proposition is
established as a matter of law.” Id.


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In this case, the jury heard testimony that Smith and Jack had been engaged in a heated
exchange over Jack trimming a tree on what Smith believed to be his mother’s property and on
what Jack believed to be Jack’s property. Following the encounter, Smith twice left the area where
the verbal exchange took place, eventually walked over to his shop, retrieved a shotgun, and then
returned and shot Jack once in the arm, followed by a closer-range shot to Jack’s head. Thus, the
jury could have determined that Smith was capable of cool reflection (1) after he left the area in
which the initial conversation took place, (2) during the time it took Smith to walk to the shop,
(3) while he was locating and retrieving his shotgun, (4) when he walked back toward Jack, or
(4) during the time between firing the first shot and the second shot. Based on this evidence, the
jury could have determined that Smith was not acting in sudden passion.
In addition, the jury could have determined that an ongoing dispute over property, albeit a
lengthy one, would not commonly produce in a person of ordinary temper sudden passion
sufficient to render him incapable of cool reflection. Thus, we conclude that based on this record,
and “while ignoring all evidence to the contrary,” there was legally sufficient evidence to support
the jury’s negative finding on sudden passion.12
B. Factual Sufficiency
We review a challenge to the factual sufficiency of the evidence on the issue of sudden
passion using the same standard of review as a challenge to the rejection of an affirmative defense.
See Naasz, 974 S.W.2d at 421. That standard requires us to consider all the evidence in a neutral
12Because there was sufficient evidence to support a negative finding on sudden passion, we need not examine the entire record “to see if the contrary proposition is established as a matter of law.” Howard, 145 S.W.3d at 334.


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light and determine whether the verdict is so against the great weight and preponderance of the
evidence as to be clearly wrong or manifestly unjust. Trevino, 157 S.W.3d at 822–23; see Zuliani
v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). We are to afford “due deference” to the
jury’s determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). We must
reach “a high level of skepticism” before reversing a jury’s verdict on this basis. Roberts v. State,
220 S.W.3d 521, 524 (Tex. Crim. App. 2007).
Much of the testimony upon which Smith relied concerned his past experiences with Jack;
that is, the long-standing family feud over the property. In fact, Smith testified,
Just my mind starting running, you know, this has been going on for like ten years, you know, it’s never going to stop, it’s never going to end, you know, unless something happens, something is done. I’ve got lawyers, I’ve called the police. I’ve done everything that I could possibly do to get this to stop, to quit. . . . You know, it’s a single shotgun and -- and I took it and I shot him.

Sudden passion must arise at the time of the offense and cannot result solely from former
provocation. TEX. PENAL CODE ANN. § 19.02(a)(2). While Jack’s actions of trimming the tree on
the day of the incident may have been the proverbial “last straw,” according to Smith’s own
testimony, Smith’s actions resulted from years of frustration over the ownership and use of the
property.
Moreover, Smith testified that he was angry and frustrated due to the behavior of Jack’s
family that had occurred long before the day of the incident, that is, damaging the property with
four wheelers, making loud noise during the late-night and early-morning hours, and refusal to
maintain the property in an orderly fashion. Provocation by someone other than the victim, or an
individual with him, does not amount to sudden passion. See id.


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In addition, causes that would not render an ordinary person’s mind incapable of cool
reflection do not constitute adequate cause. TEX. PENAL CODE ANN. § 19.02(a)(1). The jury could
have found (1) that the fact that Jack was trimming a tree on what Smith believed to be his mother’s
property or (2) that there had been a long-standing feud over the property, or (3) the combination
of the two, did not amount to an adequate cause for Smith to kill Jack. To the extent Smith testified
as to his mental state at the time of the shooting, there was ample evidence that if believed by the
jury,13 would support its finding that Smith was not acting under sudden passion.
Further, the jury could have found that Smith provoked the confrontation. Smith began the
initial conversation after observing Jack trim the tree. Jack’s somewhat belligerent reaction of
telling Smith, “[G]o on back over there to your house and leave me be, let me do what I’m doing[,]”
was a reasonably foreseeable response because this was not the first time Smith had seen Jack
trimming the trees on the property, nor was it the first time Smith confronted him over it. Having
provoked the incident that allegedly inflamed Smith, he cannot claim his forthcoming conduct
arose from adequate cause. See Naasz, 974 S.W.2d at 425.
Based on the record before us, we conclude that the jury’s negative finding on the issue of
sudden passion was not against the great weight and preponderance of the evidence. We overrule
Smith’s first point of error.
13The jury, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight given to the evidence. Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). When faced with a record that supports conflicting inferences, we presume the trier of fact resolved the conflict in support of the verdict. Id.


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III. Assessment of Attorney Fees
On appeal, Smith contends the trial court erred by assessing court-appointed attorney fees
against him in the amount of $400.00. Pursuant to Article 26.05(g) of the Texas Code of Criminal
Procedure, a trial court has the authority to order the reimbursement of court-appointed attorney
fees as court costs only if “the judge determines that a defendant has financial resources that enable
the defendant to offset in part or in whole the costs of the legal services provided . . . including any
expenses and costs.” TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2017). “[T]he
defendant’s financial resources and ability to pay are explicit critical elements in the trial court’s
determination of the propriety of ordering reimbursement of costs and fees” of legal services
provided. Armstrong v. State, 340 S.W.3d 759, 765–66 (Tex. Crim. App. 2011) (quoting Mayer
v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)).
The trial court made a finding that Smith was indigent and appointed him an attorney for
purposes of trial.14 Smith maintains that “[t]here is no evidence of a monetary change in [his]
financial circumstances once his indigency had initially be established.” The State concedes that
the trial court erred when it assessed attorney fees against Smith. Appellate courts “have the
authority to reform judgments and affirm as modified in cases where there is non reversible error.”
Ferguson v. State, 435 S.W.3d 291, 293 (Tex. App.—Waco 2014, pet. struck) (comprehensively
discussing appellate cases that have modified judgments). Accordingly, we modify the trial court’s
judgment by deleting the attorney fees in the amount of $400.00.
14The trial court also appointed Smith an attorney for purposes of this appeal.


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We sustain Smith’s second point of error.

Outcome: We modify the judgment by deleting the attorney fees in the amount of $400.00. In all other aspects, the trial court’s judgment is affirmed.

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