Office of the Attorney General News Release Archive

Monday, September 20, 1999


AUSTIN - Texas Attorney General John Cornyn offers the following information on Rickie Wayne Smith who is scheduled to be executed after 6 p.m., Tuesday, September 21st.


At approximately 10:30 p.m., on December 2, 1992, Barbara Haynes finished her shift at a Stop 'N' Go in Baytown, Texas, and Karen Birky began her shift as cashier. Haynes and her roommate, Stephanie Melnick, went home but walked back to the store a short time later. As they neared the street corner, they heard a man and a woman arguing. When they neared the store, they saw Smith and Birky standing near the open driver's side door of a Jeep parked in the parking lot. Melnick thought it sounded as if the two were arguing about getting into the Jeep. Haynes noted that Smith appeared to have one hand on the vehicle door and his other hand around Birky's throat. As Melnick and Haynes continued walking toward the store they heard a noise that sounded like a firecracker. Immediately after the noise, Smith got into the Jeep and left. Haynes and Melnick saw Birky lying on the ground and went to help. As she cradled Birky's head, Haynes noticed blood coming from Birky's throat.

Meanwhile, pursuant to a dispatch, a Baytown police officer was checking the local convenience stores in response to an alarm that had been set off. As he approached the Stop 'N' Go, the officer observed a Jeep leaving the parking lot. The officer evaluated the situation and called for additional aid. Several officers and emergency medical personnel arrived on the scene shortly thereafter.

Lance Harp also witnessed the instant offense. As he parked near his apartment, Harp looked over to the Stop 'N' Go and noticed Birky and Smith standing in the parking lot screaming at each other. Harp then saw the two come together, heard Birky scream, and heard a loud pop like a firecracker. Birky then fell backward. When Harp ran over to help, he saw that Birky had suffered a gunshot wound to the neck. Harp attempted to stop the bleeding from Birky's neck by covering the wound with his hand but she was choking to death on blood. Emergency medical personnel arrived within two or three minutes and took over the care of Birky. Birky was taken to the hospital via Life Flight but died en route.

After securing the scene, officers found an empty cash register inside the store and a .32 caliber spent shell casing in the parking lot. Officers also recovered the film from the store security camera. The film reveals Smith in several photographs. Smith is clearly depicted to be in possession of a firearm. Birky is seen taking money out of the register, stuffing it in a bag and giving it to Smith. Smith then appears to place the handgun in his pocket. In a later sequence of photographs, Smith is seen walking out of the camera's field of view toward the rear of the store. Birky also leaves the field of view. Several frames later, Smith, followed by Birky, both walk back across the field of view to the front door and out of the store.

As a result of the pictures of Smith and the witnesses' observations of a Jeep leaving the scene, Smith was apprehended the morning after the shooting. At the time of his arrest, Smith was in possession of three five dollar bills, matching the serial numbers of those removed from the cash register, a Walther .32 caliber pistol, and a sawed-off shotgun. A search of Smith's Jeep revealed a box of .32 caliber shells of the same brand as the recovered shell casing. The Walther was the same firearm that had fired the spent shell casing found at the scene of the crime, and requires a trigger pull of ten pounds or more, which is a very heavy trigger pull. Finally, the coroner testified that the tip of the gun had been touching the tip of the victim's skin when she was shot.


In February 1993, a Harris County grand jury indicted Smith for the intentional murder of Karen Birky in the course of committing and attempting to commit robbery, a capital offense. Smith was tried before a jury upon a plea of not guilty. On November 16, 1993, the jury found him guilty of the capital offense. A separate punishment hearing ensued and, on November 20, 1993, the jury answered affirmatively the first special issue and negatively the second special issue submitted, and in accordance with state law, the trial court (the 174th District Court of Harris County, Texas) sentenced Smith to death.

Smith's conviction and sentence of death were automatically appealed to the Texas Court of Criminal Appeals, which affirmed the conviction and sentence on February 21, 1996, and denied rehearing on April 3, 1996. On December 9, 1996, the United States Supreme Court denied certiorari review.

In April 1997, Smith filed an initial application for state writ of habeas corpus in the convicting court. Smith filed an amended application in December 1997. In May 1999, Smith filed a motion to proceed pro se and a motion to dismiss his state habeas application. The trial court held a hearing on the matter and thereafter found that Smith was competent to make the decision to proceed pro se as well as to waive further appeals. On June 16, 1999, the Court of Criminal Appeals found that the trial court's findings were supported by the record and granted Smith's motion to dismiss.


At the punishment phase of trial, the State presented evidence reflecting Smith's lengthy criminal record. Juvenile records indicated that Smith had been charged with theft from an automobile, distribution of marijuana, and theft. At the time of a juvenile arrest for delivering marijuana, Smith bragged that he had just burglarized some vehicles and taken weapons he found in them. Felony records indicated that Smith had been convicted of felony theft, aggravated burglary, issuing worthless checks, forgery, automobile theft, and armed robbery.

Evidence was also presented at the punishment phase of trial indicating that Smith had planned an escape attempt while waiting trial for the instant offense. In Smith's cell, officers recovered civilian clothing, a rope that had been dyed to match the exterior color of the jail, a makeshift window crank, and two hacksaw blades.


According to Smith's testimony at the punishment phase of trial, his life of crime was attributable to a drug and alcohol problem. Smith claimed not to have any recall of committing the instant offense and that he had consumed a large quantity of alcohol and drugs in the hours leading up to the offense.


10/12/1999 Alvin Wayne Crane (Ochiltree County)
10/14/1999 Jerry Walter McFadden (Upshur County)
10/21/1999 Pedro Sosa (Atascosa County)
10/28/1999 Domingo Cantu, Jr. (Dallas County)
11/17/1999 John Michael Lamb (Hunt County)
12/08/1999 David Martin Long ( Dallas County)
12/14/1999 Robert Ronald Atworth (Dallas County)
01/12/2000 Earl Carl Heiselbetz, Jr. (Sabine County)
01/13/2000 Johnny Paul Penry (Polk County)


If this execution is carried out, it will be the 189th execution since executions resumed in Texas in December 1982 and the 25th since General Cornyn took office. This case was handled by Assistant Attorney General Ed Marshall of the Attorney General's Capital Litigation Division.

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Contact Ted Delisi, Heather Browne, or Tom Kelley at (512) 463-2050