Jоseph Kenton McGOWEN, Appellant, v. The STATE of Texas, Appellee.
No. 14-94-00246-CR.
Court of Appeals of Texas, Houston (14th Dist.).
April 10, 1997.
944 S.W.2d 481
William J. Delmore, III, Houston, for appellee.
Before YATES, O‘NEILL and DRAUGHN,* JJ.
DRAUGHN, Justice (Assigned).
Appellant entered a plea of not guilty to the offense of murder.
FACTS AND PRIOR POSTURE
On August 25, 1992, appellant, a Harris County Deputy Sheriff, shot and killеd Susan White while executing a warrant for her arrest on a felony charge of retaliation. The retaliation charge was based on a telephone call made by White in which she allegedly threatened a confidential informant, Michael Schaeffer. Schaeffer, a confidential informant for appellant, had assisted him in an investigation which rеsulted in the arrest of White‘s son, Jason Aguilar (Aguilar) for possessing a stolen credit card and selling a stolen pistol. Aguilar testified that when he was arrested on August 22, 1992, his mother came to the scene. She was extremely angry about his arrest and told appellant, “I‘m going to get you, you son of a bitch.” The record reveals that White and appellant had encounters on several previous occasions. White had made several complaints about appellant. She believed appellant was intentionally harassing her and her son.
White attempted to call the mother of the informant Schaeffer and left a message on her sister‘s answering machine that “informants in Houston don‘t live long.” White had called Schaеffer‘s mother because she was trying to get information that could help get her son out of jail. Schaeffer, a “friend” of Aguilar‘s, agreed to help appellant obtain confidential information on Aguilar in an effort to help appellant get some illegal guns off the street. Appellant had stopped Schaeffer several times for traffic violations, and during one stop, Schaeffer agreed to help appellant as a confidential informant. Aguilar testified that appellant had offered him money for his information. Appellant, however, denied this when he testified.
Schaeffer told appellant about one particular phone conversation between his mother and White. Schaeffer told appellant that neither he nor his mother felt the call was a threat. Nevertheless, appellant told Schaeffer that White was threatening him and she needed to go to jail. Appellant then contacted the District Attorney‘s Intake Division and gave false information about White in order to obtain an arrest warrant. Appellant told the prоsecutor at the Intake Division that White had said, “I‘m going to kill the CI (confidential informant), for having my son arrested and he‘ll be dead before the day is over or the night is over.” The prosecutor asked appellant if the complainant could be taken seriously. He responded that she had been violent, and had been known to carry a gun. The prosecutor tоld appellant she would not file charges against White until he spoke to Schaeffer‘s mother. Appellant then had an Austin police officer drive to the home of Schaeffer‘s mother in the middle of the night to notify her to call him. When Schaeffer‘s mother called appellant, he gave her false information about White and Aguilar so he could get thе warrant executed. For instance, appellant told Schaeffer‘s mother that they, the police, had watched Aguilar break into a house and that White was a “crazy woman” and had almost gotten arrested at the police station for creating a scene.
The appellant testified that he attempted to call White before driving to hеr residence to execute the warrant, but she did not answer the phone. Appellant and two deputies arrived at White‘s residence sometime after midnight to execute the warrant. The officers banged on White‘s door, and when she responded, she asked for some identification. White told appellant to go away and she would open the doоr. White then made two 9-1-1 calls complaining of appellant being at her house.
In the meantime, appellant called the police station and obtained permission to force entry into White‘s house. The officers kicked open the back door. One officer testified that he lost his balance when entering the residence so appellant went ahead. Appellant testified that he saw White crossing the bedroom doorway with an unknown object in her hand. He claims to have yelled, “Sheriff‘s Office felony warrant” twice, and “come out where we can see your hands.” He testified that he then leaned into the bedroom, saw White facing him with a gun pointed at him, and he ordered her to put the gun down threе times. He stated she leaned near the headboard of the bed pointing the pistol in his direction so he fired his gun three times, killing her.
POINTS OF ERROR
In appellant‘s first point of error, he alleges the trial court erred in denying his request to make an opening statement after the State rested its case. The record reflects that the State did not make an opening statemеnt before it presented its evidence. After the State rested, defense counsel requested permission to make an opening statement. The trial judge responded, “Please go ahead,” and the prosecutor objected. The prosecutor told the trial judge that the State had waived opening argument, therefore the defense was not еntitled to make an opening statement. The trial judge sustained the objection. Defense counsel objected to being denied the opportunity to make an opening statement.
The right to make an opening statement is a statutory right and not a constitutional imperative or mandate. Dunn v. State, 819 S.W.2d 510, 524 (Tex.Crim.App.1991); accord United States v. Salovitz, 701 F.2d 17, 20 (2nd Cir.1983); cf. Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975) (holding right to make closing argument is constitutional with right to assistance оf counsel). In Texas, the right to make an opening statement is a valuable right derived from the Code of Criminal Procedure, specifically
In 1987 the legislature amended
However, it has never been disputed that a defendant may present an opening statement after the close of the State‘s evidence pursuant to
The State argues that appellant waived any such error by failing to properly preserve it. Specifically, the State argues the defense counsel‘s objection was not specific enough and failed to preserve for review the content of the statement he desired to make. In order to preserve error, an adverse ruling on an objection must be obtained in the trial court.
The State next maintains that even if the defendant properly preserved error, the denial of the defense counsel‘s оpportunity to make an opening statement should be found harmless under the
Because we reverse the conviction based on point of error number one, we need not address the merits of appеllant‘s points of error number two and four. We must, however, consider appellant‘s third point of error, because he contends the evidence was legally insufficient to support the jury‘s verdict. Specifically, appellant asserts that as a matter of law the State did not present sufficient evidence to prove that he did not act in self-defensе when he shot the decedent.
In reviewing the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Patrick v. State, 906 S.W.2d 481, 486 (Tex.Crim.App.1995). We look at all the evidence, whether properly or impropеrly admitted. Bobo v. State, 843 S.W.2d 572, 575-76 (Tex.Crim.App.1992); Beltran v. State, 728 S.W.2d 382, 389 (Tex.Crim.App.1987). However, we do not sit as a thirteenth juror and disregard or reweigh the evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). If there is evidence that establishes guilt beyond a reasonable doubt, and if the trier of fact rationally believes that evidence, we are not in a position to reverse the judgment on sufficiency of evidence grounds. Id.
The issue of self-defense is an issue of fact tо be determined by the factfinder. Saxton v. State, 804 S.W.2d 910, 913 (Tex.Crim.App.1991). A jury verdict of guilty is an implicit finding rejecting the defendant‘s self-defense theory. Id. at 914. A person is justified in using force against another when, and to the degree, he reasonably believes the force is immediately necessary to protect himself against the other‘s use or attempted use of unlawful force.
We have examined the evidence and, viewing it in the light most favorable to the verdict, find it sufficient to suрport the jury‘s verdict. The jury could have rationally found that appellant‘s use of deadly force was not immediately necessary to protect against White‘s alleged use or attempted use of deadly force. The jury could have found the felony warrant was based on false information deliberately supplied by appellant to obtain a warrant for her arrest. The jury could have also determined that because of the prior encounters between appellant and White, a hostile relationship existed: that appellant was not acting in self-defense when he requested permission to force entry into White‘s house and then shot her three times. In short, the jury had ample evidence to сast doubt on appellant‘s credibility, and they
The judgment is reversed and the cause remanded to the trial court.
YATES, Justice, concurring.
I agree with the majority that the right to mаke an opening statement is a valuable right, the denial of which constitutes reversible error. I write separately merely to elaborate on the importance of the right to offer an opening statement.
Although not a constitutional imperative or mandate, the right to make an opening statement is an important part of an accused‘s right tо a trial by jury. If trial courts were allowed to deny an accused this valuable right it would chip away at the fundamental right of trial by jury that Americans and Texans hold so dear. As Judge Clinton eloquently pointed out in his dissent in Moore v. State, 868 S.W.2d 787 (Tex.Crim.App.1993);
Having declared independence from the ruling government in part because it denied, and having fought the ensuing revolution in part to obtain, the right to trial by jury, our forbeаrers enshrined that right in the Sixth and Ninth Declaration of Rights of the Constitution of the Republic of Texas. [T]hey maintained it in the Bill of Rights in all successive constitutions: “the accused shall have a speedy public trial by an impartial jury.”
....
[T]he practice of making “opening statements” is a feature of the common law, “followed from time immemorial.” The manifest function is to inform jurors of the nature of the accusation and the facts the State expects to prove in support thereof, and the nature of the defenses and facts the accused expects to support them. Thus the jury is “put in a position to understand and apply the evidence as delivered.” Also and not so incidentally, obviously each side gains more insight intо the opposing theory of the case.
Id. at 791 (Clinton, J. dissenting) (citations omitted).
Thus, it has been the law in this State since the early 1900‘s that although a trial judge has the discretion to control the opening statement and limit it to its proper scope, “when an accused in a timely manner seeks to avail himself of the privilege of making an opening statement, and does not seek to abuse the рrivilege by commenting upon improper or inadmissable facts, converting it into argument, or otherwise misusing it, it should be accorded, and when its denial ... is brought before this court for review, the denial will not be sanctioned.” Dugan v. State, 199 S.W. 616, 617 (Tex.Crim.App.1917) (citing House v. State, 75 Tex.Crim. 338, 171 S.W. 206 (1914)).
It is unfortunate that we are compelled to order a new trial for appellant on what may be perceived by some as a “technicality.” It is more unfortunate, however, that the trial court hastily dismissed a critical component of the right to trial guaranteed to every citizen. With these brief additional remarks, I concur with the majority.
O‘NEILL, J., joins in this concurrence.
DRAUGHN, Justice (Assigned).