Davis v State
| Decision Date | 10 February 2000 |
| Docket Number | NO. 14-98-00576-CR,14-98-00576-CR |
| Citation | 930 S.W.2d 765 |
| Parties | ERNEST DAVIS, Appellant v. THE STATE OF TEXAS, Appellee NO. 14-98-00576-CR In The Fourteenth Court of Appeals |
| Court | Texas Court of Criminal Appeals |
THE STATE OF TEXAS, Appellee NO. 14-98-00576-CR In The Fourteenth Court of Appeals February 10, 2000.
On Appeal from the 230th District Court Harris County, Texas Trial Court Cause No. 777329
Panel consists of Justices Amidei, Edelman, and Wittig.
MAJORITY OPINION
Ernest Davis appeals his conviction by a jury for the offense of possession of cocaine. The trial court sentenced appellant to ten years imprisonment. In three points of error, appellant contends (1) the trial court erred in denying his motion to suppress all evidence seized as a result of a warrantless arrest, (2) the trial court erred in denying defense counsel the right to make an opening statement, and (3) appellant was denied effective assistance of counsel. We affirm the judgment of the trial court.
On the evening of March 6, 1998, Officer Myron Dillingham was on routine patrol in a marked police car when he saw appellant, Ernest Davis, walking down the street. Officer Dillingham recognized appellant as someone he had dealt with in the past. When he was about ten feet away from appellant, Dillingham shined his spotlight on appellant. Dillingham then observed the appellant throw down a clear container. Upon seeing the appellant throw down the object, the officer turned on his emergency lights and exited his vehicle. The officer arrested appellant for littering. Officer Dillingham then recovered the discarded container and determined that the contents were cocaine. The container contained 635 milligrams of crack cocaine. Dillingham placed appellant under arrest for possession of a controlled substance.
In his first point of error, appellant contends that he was unlawfully detained when Officer Dillingham shined the spotlight on him, and therefore, his abandonment of the cocaine was an involuntary result of an illegal detention. Appellant argues that Dillingham used a show of authority (the spotlight) to detain appellant without any reasonable suspicion. It is claimed that the use of the spotlight amounted to a seizure of appellant. Because the abandonment of the cocaine was a product of police misconduct, appellant argues it was not admissible into evidence, and the trial court erred in overruling appellant's motion to suppress. We disagree.
A ruling on a motion to suppress lies within the sound discretion of the trial court. Villareal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). At the hearing on the motion, the trial court serves as the sole judge of the credibility of the witnesses and the weight to be given their testimony. Id.; Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).
Appellate courts should afford almost total deference to a trial court's rulings on "application of law to fact questions," also known as "mixed questions of law and fact," if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor of the witnesses. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Appellate courts may review de novo "mixed questions of law and fact" not falling within this category. Id. The trial court's decision to grant or deny the motion to suppress turned on the court's assessment of whether shining the spotlight on appellant constituted a seizure, which is a question of law. Therefore, we will review the record de novo. See Hunter v. State, 955 S.W.2d 102 (Tex. Crim. App. 1997); see also Loserth v. State, 963 S.W.2d 770 (Tex. Crim. App. 1998).
We first need to address whether appellant's point of error was properly preserved for our review. To preserve error for appellate review, the complaining party must have raised his complaint in the form of an objection, request or motion in the trial court and obtained a ruling. Tex. R. App. P. 33.1(a)(1); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). Additionally, the point of error must correspond to the motion made at trial. Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). A motion which states one legal theory cannot be used to support a different legal theory on appeal. Broxton, 909 S.W.2d at 918. Appellant's trial counsel claimed that the evidence should be suppressed based on the theory that littering is not an offense that gives rise to probable cause. Appellant failed to complain during the motion to suppress hearing that Dillingham's shining of the spotlight amounted to a show of force. This argument was raised for the first time on appeal. Because appellant's complaint on appeal does not comport with the motion he made at trial, he has failed to properly preserve error for our review. We overrule appellant's point of error one.
In his second point of error, appellant contends the trial court erred in refusing his request to make an opening statement before his case-in-chief. During the State's case-in-chief, the State waived its right to make an opening statement. At the conclusion of the State's case appellant's attorney requested that he be allowed to make a short opening statement prior to putting on evidence in appellant's case-in-chief. The trial judge denied appellant's attorney the right to make an opening statement stating that, "[s]ince it wasn't made by the state, you can't make one, I think one follows the other, as I understand the law." Appellant's attorney stated that he was entitled to an opening statement. The trial judge responded that the defense is only entitled to an opening statement if the State makes an opening statement. Appellant's attorney then objected on the record to not being allowed an opening statement in appellant's case-in-chief. The trial court overruled the objection.
A defendant may present an opening statement after the close of the State's case-in-chief. See Tex. Code Crim. Proc. Ann. Art. 36.01(a)(5) (Vernon Supp. 1999); Moore v. State, 868 S.W.2d 787, 789 (Tex. Crim. App.1993). The failure of a trial court to allow such a statement constitutes error. Farrar v. State, 784 S.W.2d 54, 56 (Tex. App.-Dallas 1989, no pet.). We therefore find the trial court erred in not allowing appellant's trial counsel to make an opening statement.
Our analysis does not end there, however. In McGowen v. State, 944 S.W.2d 481 (Tex. App.-Houston [14th Dist.] 1997), vacated and remanded, 991 S.W.2d 803 (Tex. Crim. App. 1998) (en banc), this Court held that an error in denying a defendant the right to present an opening statement constitutes reversible error without a harm analysis. At the time this Court handed down its opinion, it did not have the benefit of the Court of Criminal Appeal's decision in Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997). See McGowen v. State, 991S.W.2d 803 (Tex. Crim. App. 1998) (en banc). In Cain, the court held that "except for certain federal constitutional errors labeled by the United States Supreme Court as 'structural,' no error, whether it relates to jurisdiction, voluntariness of plea, or any other mandatory requirement, is categorically immune to a harmless error analysis." Cain, 947 S.W.2d at 264. We therefore must conduct a harm analysis.
Our harm analysis must begin with a determination of whether the denial of the right to make an opening statement is constitutional error. Tex. R. App. P. 44.2.1 In Moore the Court held the right to make an opening statement is a statutory right, not a constitutional right. Moore, 868 S.W.2d at 789. Therefore, the error in this case involves Tex. R. App. P. 44.2(b). Under rule 44.2(b) we are to disregard the error unless a substantial right is affected. Tex. R. App. P. 44.2(b). Since rule 44.2(b) is virtually identical to rule 52(a) of the Federal Rules of Criminal Procedure, we may look to federal case law for guidance on the meaning of this rule. Umoja v. State, 965 S.W.2d 3, 11 (Tex. App.-Fort Worth 1997, no pet.) (opinion on reh'g). A substantial right is affected when (1) the error had a "substantial and injurious" effect or influence in determining the jury's verdict or (2) leaves one in grave doubt whether it had such an effect. See O'Neal v. McAninch, 513 U.S. 432 (1995); United States v. Arutunoff, 1 F.3d 1112, 1118 (10th Cir.), cert. denied, 510 U.S. 1017 (1993); see also King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); Coggeshall v. State, 961 S.W.2d 639, 642-44 (Tex. App.-Fort Worth 1998, pet. ref'd). To make the determination of "substantial influence," appellate courts must review the entire record to discern whether the error "substantially swayed" the jury, or had a "substantial influence" on the jury's verdict in the context of the entire case against the defendant. Umoja, 965 S.W.2d at 11, United States v. Blake, 107 F.3d 651, 653 (8th Cir.1997); United States v. Wilson, 107 F.3d 774, 785-86 (10th Cir.1997). Our task, therefore, is not simply to identify what particular substantial right may have been affected; rather, it is to determine whether the error influenced the trial's outcome.
In summary, when we assess harm under Rule 44.2(b), we review the entire record to determine whether the error did not influence or had only a slight influence on the verdict. If we have grave doubts about its effect on the outcome, or if we find that it had more than a slight influence, we must conclude that the error was such as to require a new trial. See Fowler v. State, 958 S.W.2d 853 (Tex. App.-Waco 1997, no pet.)
To perform a meaningful harm analysis under any standard, the record must provide enough information for the reviewing court to estimate the effect of the error. An opening statement that is not made is, of course, not in the record. However, we cannot say that the outcome would have been different had appellant's attorney made an opening statement. Defense counsel quite often waive openings as a...
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