United States Court of Appeals
For the Fifth Circuit

opinion 06-70019

Oldest condemned Texas inmate loses appeal

Associated Press

Tuesday, March 13, 2007

Nearly 30 years since a Houston convenience store worker was shot to death, a man condemned for the slaying has lost a federal appeal that inches his punishment closer to being carried out.

Jack Harry Smith, who would turn 70 this year, is the oldest person on death row in Texas and one of the longest-serving of Texas' condemned inmates, ranking seventh in seniority among the state's 374 convicted killers awaiting lethal injection.

In a ruling late Monday, the 5th U.S. Circuit Court of Appeals in New Orleans denied an appeal that challenged his 1978 conviction.

Among claims rejected by the appeals court was one that his trial lawyer failed to investigate robbery-assault and theft convictions Smith had in 1955, plus another robbery-assault conviction in 1959 that then earned Smith a life prison term. He also had a prison escape attempt in 1963.

That failure to investigate what Smith contended were improper convictions in 1955 and 1963, according to the appeal, prompted Smith to waive his right to testify at his 1978 capital murder trial. If he had testified, jurors would not have sentenced him to death, the appeal contended.

The appeals court disagreed, upholding a federal district judge's ruling a year ago that also turned down his appeal.

Smith was paroled from his life sentence Jan. 8, 1977, after serving 17 years.

Almost exactly one year later, on Jan. 7, 1978, Smith and an accomplice were arrested the same day Roy A. Deputter was gunned down while trying to stop a holdup at a Houston convenience store known as Corky's Corner.

The accomplice, Jerome Lee Hamilton, received a life sentence and testified against Smith, who received a death sentence. The former welder who completed only six years of school arrived on death row Oct. 9, 1978.

The U.S. Supreme Court rejected an appeal from Smith in 1985, but little happened in the case after that. Unlike procedures now in place, there were no time deadlines that forced appeals to move through the courts when Smith was convicted. Attorneys suggested the trial judge, who died in 1997, wasn't inclined to move the case forward.

The lawyer handling Smith's initial appeals died in 1999.

The attorney now handling his appeals, Ken McLean, did not immediately return a call Tuesday from The Associated Press.

In 2001, Smith, in an interview with the AP, complained about the lack of progress in his case.

"I feel that the system is waiting for me to pass away of old age," said Smith, who has had health problems in prison, including cancer. "I'm angry at the justice system, at the courts for wasting taxpayers' money for giving me this hospitality."

At the time, he said he wanted a new trial to prove his innocence, insisting he had never been in the store where Deputter was killed and the store robbed of about $90.

A witness identified Smith as one of two gunmen -- one armed with a shotgun and the other with a pistol.

Deputter, who lived behind the store and helped out the owner, walked in on the holdup, pulled his own gun and exchanged shots with the robbers. He was shot once in the heart and once in the head. Besides Hamilton, a cashier at the store also testified against Smith at his trial.

Hamilton was paroled in February 2004. Smith said he'd been offered a life sentence before his trial but refused to plead guilty to a crime he said he didn't do.

Smith said when the store was being robbed, "I was sitting all the time at a beer joint and I had witnesses who testified I was drunk and in no condition to rob anyone."

At 70, Jack Harry Smith, sentenced for a robbery killing, is the oldest of the 369 inmates
on Texas’ death row