McGowen v. State

• Decision Date: 10 April 1997
• Docket Number: No. 14-94-00246-CR,14-94-00246-CR
• Citation: 944 S.W.2d 481
• Parties: Joseph Kenton McGOWEN, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 481

944 S.W.2d 481

Joseph 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.

Clinton F. Greenwood, George McCall Secrest, Jr., Houston, for appellant.

William J. Delmore, III, Houston, for appellee.

Before YATES, O'NEILL and DRAUGHN, ^* JJ.

OPINION

DRAUGHN, Justice (Assigned).

Appellant entered a plea of not guilty to the offense of murder. TEX.PENAL CODE ANN. § 19.02 (Vernon 1992). ¹ A jury found him guilty and assessed his punishment at fifteen years confinement in the Institutional Division of the Texas Department of Criminal Justice. In four points of error, appellant asserts the trial court erred by (1) denying appellant the right to make an opening statement, (2) admitting inadmissible hearsay evidence, and (3) refusing to instruct the jury that appellant had a right to arm himself. Appellant also challenges the sufficiency of the evidence. We reverse and remand.

FACTS AND PRIOR POSTURE

On August 25, 1992, appellant, a Harris County Deputy Sheriff, shot and killed 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 resulted 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 Schaeffer'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 prosecutor 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 told 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 the 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 her 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 door. 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 three 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 statement 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 entitled 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 of counsel). In Texas, the right to make an opening statement is a valuable right derived from the Code of Criminal Procedure, specifically art. 36.01. Moore v. State, 868 S.W.2d 787, 789 (Tex.Crim.App.1993). Article 36.01 sets out the order of proceeding in any criminal action involving a jury and provides that a defendant's opening statement shall be made after the presentation of the State's evidence. Id.; Atkinson v. State, 523 S.W.2d 708, 710-11 (Tex.Crim.App.1975). Denial of a timely request to present an opening statement is a denial of a valuable right, and constitutes reversible error. See Penry v. State, 903 S.W.2d 715, 760 (Tex.Crim.App.1995); Crew v. State, 387 S.W.2d 898, 899 (Tex.Crim.App.1965); see also Farrar v. State, 784 S.W.2d 54, 56 (Tex.App.--Dallas 1989, no pet.).

In 1987 the legislature amended article 36.01 to allow a defendant the option to determine when to make an opening statement. Id. Amendment (b) to article 36.01 entitles the defendant to make an opening statement "immediately after the attorney representing the State makes an opening statement for the State." TEX.CODE CRIM.PROC.ANN . art. 36.01(b); Dunn, 819 S.W.2d at 524; Farrar, 784 S.W.2d at 56. Thus under article 36.01(b), the defendant's right to make an opening statement before the State presents its evidence is contingent on the State's making an opening statement. If the State makes no opening statement, the defendant may not make an opening statement until prior to presenting his own case in chief. See Boston v. State, 871 S.W.2d 752, 752 (Tex.Crim.App.1994); Winters v. State, 870 S.W.2d 632, 635 (Tex.App.--Houston [1st Dist.] 1994, no pet.).

However, it has never been disputed that a defendant may present an opening statement after the close of the State's evidence pursuant to art. 36.01(a)(5). Moore, 868 S.W.2d at 789. The failure to allow a defendant to make an opening statement under the provisions of art. 36.01 constitutes reversible error. Penry, 903 S.W.2d at 760; Farrar, 784 S.W.2d at 56. In Farrar, the defense counsel requested the opportunity to make an opening statement after the close of the State's evidence. The trial court, quoting the provisions of 36.01(b), mistakenly concluded that this amendment to 36.01 precluded the defendant from presenting an opening statement under 36.01(a) because the State had not made an opening statement. Farrar, 784 S.W.2d at 56. The Dallas Court of Appeals held article 36.01(b) does not eliminate the defense attorney's right to make an opening statement after the State rested, but when read in conjunction with subsection (a) of article 36.01, gives the defense counsel a choice of when to make his opening statement. Id. The court also held the denial of that valuable statutory right constitutes reversible error. Id. The issue before us is the same as that in Farrar. In our case, the trial judge also misconstrued article 36.01(b) and denied the defense request to present an opening statement after the State rested its case. The Court of Criminal Appeals in Moore made it clear that a defendant's right to choose when to make its opening statement was viable only if the State made an opening statement; otherwise that right could only be exercised after the State presented its evidence. Moore, 868 S.W.2d at 790-91.

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...