Rodrick Oneall Taylor v. the State of Texas ( 2021 )

Affirmed as Modified and Opinion Filed August 24, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00671-CR
RODRICK ONEALL TAYLOR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-1875219-W
MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Partida-Kipness
Opinion by Justice Osborne
Rodrick Oneall Taylor appeals the trial court’s judgment convicting him of
aggravated assault with a deadly weapon. The jury found Taylor guilty and assessed
his punishment at five years of imprisonment. Taylor raises two issues on appeal
arguing: (1) the judgment should be modified to correctly reflect that he pleaded not
guilty; and (2) the trial court erred when it sustained the State’s objections to two
portions of his counsel’s opening statement. We conclude the judgment should be
modified and the trial court did not err. The trial court’s judgment is affirmed as
modified.
I. PROCEDURAL BACKGROUND
Taylor was indicted for the offense of aggravated assault with a deadly
weapon for intentionally shooting Davion Morgan. See TEX. PENAL CODE ANN.
§ 22.01. Taylor pleaded not guilty to the offense and the case proceeded to a jury
trial. During defense counsel’s opening statement, the trial court sustained the
State’s objections to two of his statements. The jury found Taylor guilty and
assessed his punishment at five years of imprisonment.
II. DEFENSE COUNSEL’S OPENING STATEMENT
In issue two, Taylor argues the trial court erred when it sustained the State’s
objections to the portions of his counsel’s opening statement that indicated: (1)
Morgan had a history of bullying smaller people and drug use; and (2) Morgan was
reluctant to testify.
A. Standard of Review
An appellate court reviews a trial court’s rulings on opening statements for an
abuse of discretion. See Norton v. State, 564 S.W.2d 714, 718 (Tex. Crim. App.
[Panel Op.] 1978) (character and extent of opening statement subject to trial court’s
discretion); McBride v. State, 7 S.W.2d 1091, 1094 (Tex. Crim. App. 1928) (op. on
reh’g); see also Paroline v. State, 532 S.W.3d 491, 495 (Tex. App.—Texarkana
2017, no pet.); Donnell v. State, 191 S.W.3d 864, 867 (Tex. App.—Waco 2006, no
pet.). More specifically, an appellate court reviews a trial court’s ruling on the
proper scope of a defendant’s opening statement for an abuse of discretion. Dugan
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v. State, 199 S.W. 616, 617 (Tex. Crim. App. 1917); Sue v. State, 105 S.W. 804, 806
(Tex. Crim. App. 1907); Guillory v. State, 397 S.W.3d 864, 868 (Tex. App.—
Houston [14th Dist.] 2013, no pet.). A trial court abuses its discretion if its ruling
falls outside the “zone of reasonable disagreement.” Montgomery v. State, 810
S.W.2d 372, 391 (Tex. Crim. App. 1990).
B. Applicable Law—Opening Statements
The right to make an opening statement is contained in article 36.01 of the
Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 36.01(a)(5),
(b). It is a statutory right, not a constitutional imperative or mandate. Moore v. State,
868 S.W.2d 787, 788–89 (Tex. Crim. App. 1993).
The purpose of an opening statement is to communicate to the jury a party’s
theory of the case in order to help the jury evaluate the evidence as it is being
presented. Guillory, 397 S.W.3d at 868; Fisher v. State, 220 S.W.3d 599, 603 (Tex.
App.—Texarkana 2007, no pet.). Article 36.01 defines the scope of both the State’s
and the defendant’s opening statements. CRIM. PROC. art. 36.01(a)(3), (5). It
provides that the “State’s attorney shall state to the jury the nature of the accusation
and the facts which are expected to be proved by the State in support thereof.” Id.art. 36.01(a)(3). It also provides that “[t]he nature of the defense relied upon and the
facts expected to be proved in their support shall be stated by defendant’s counsel.”
Id. art. 36.01(a)(5); see also Norton, 564 S.W.2d at 718; Robles v. State, 104 S.W.3d
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649, 652 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (noting proper purpose of
defendant’s opening statement is to inform court and jury what he expects to prove).
When a defendant makes an opening statement, the character and extent of
such statement are subject to the control of the trial court. Norton, 564 S.W.2d at
718; McBride, 7 S.W.2d at 1094; Dugan, 199 S.W. at 617; see also Paroline, 532
S.W.3d at 494; Guillory, 397 S.W.3d at 868. The trial court has discretion to limit
the defendant’s opening statement to its proper scope. McBride, 7 S.W.2d at 1094;
Dugan, 199 S.W. at 617; Sue, 105 S.W. at 806; Guillory, 397 S.W.3d at 864.
C. Objection to the Statement that the Victim was a Bully and Used Drugs
First, we address the part of Taylor’s second issue arguing the trial court erred
when it sustained the State’s objection to the portion of his counsel’s opening
statement that indicated Morgan had a history of bullying smaller people and used
drugs. He contends that Morgan’s credibility was an issue at trial and his defense
counsel was “properly explaining the character evidence [he] anticipated would be
admissible against [Morgan]” and “attempted to show the jury the facts it would hear
as well as a preview of [Morgan’s] character.” Further, he maintains that evidence
supporting these statements was admitted during the trial. Also, Taylor claims that
he was harmed by the limitation of his counsel’s opening statement because it
influenced the jury’s verdict and ability to judge the evidence. The State responds
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that the trial court properly sustained its character objection and Taylor was not
harmed by the limitation of his counsel’s opening argument.
1. Applicable Law—Facts Expected to Be Proved
The trial court has discretion to limit the defendant’s opening statement to
ensure that it is not used to comment on improper or inadmissible facts or evidence.
Moore v. State, 868 S.W.2d 787, 793 (Tex. Crim. App. 1993) (while defendant has
right to make opening statement on matters prescribed by statute, it is not error for
trial court to preclude him from stating matter inadmissible in evidence); McBride,
7 S.W.2d at 1094; Dugan, 199 S.W. at 617; Sue, 105 S.W. at 806; Guillory, 397
S.W.3d at 864; see also Meyer v. State, 41 S.W. 632, 633 (Tex. Crim. App. 1897)
(holding it was proper for trial court to restrict counsel’s opening statement where
bill of exception showed defendant proposed to state matters not admissible in
evidence); Atilano v. State, No. 01-17-00564, 2018 WL 2107239, at *6 (Tex. App.—
Houston [1st Dist.] May 8, 2018, no pet.) (mem. op., not designated for publication)
(holding trial court did not abuse discretion in sustaining State’s hearsay objection
to defendant’s opening statement because defendant did not identify applicable
hearsay exception); Enrique v. State, No. 03-08-00760-CR, 2009 WL 3400988, at
*3 (Tex. App.—Austin Oct. 23, 2009, no pet.) (mem. op., not designated for
publication) (where motion in limine indicated admissibility of certain evidence was
in question, defense counsel had no right to raise issue during opening statement
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because he could not reasonably expect to prove it during trial); Dean v. State, No.
01-01-00443-CR, 2002 WL 31122124, at *2 (Tex. App.—Houston [1st Dist.] Sept.
26, 2002, pet. ref’d) (not designated for publication) (concluding trial court did not
err in sustaining State’s hearsay objection to portion of defendant’s opening
statement commenting on defendant’s confession when State did not mention
confession or use it during its case-in-chief); Carrasquillo v. State, 742 S.W.2d 104,
113 (Tex. App.—Fort Worth 1987, no pet.) (concluding no error where trial court
refused to permit defendant to mention in opening statement testimony of witness
defense counsel believed might not be admissible). It is incumbent on the defendant
to exercise good faith in spelling out in his opening statement what he anticipates
the evidence will show. Paroline, 532 S.W.3d at 495; see also Norton, 564 S.W.2d
at 718 (concluding trial court did not err in ruling defendant’s opening statement
would not be made in good faith).
Only relevant evidence is admissible. See TEX. R. EVID. 402. Evidence is
relevant if it has any tendency to make a fact that is of consequence to the
determination of the action more or less probable than it would be without the
evidence. Id. 401.
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Under Rule 404(a)(3), a defendant may offer evidence of a victim’s pertinent
character trait, subject to the restrictions in Rule 412.1 EVID. 404(a)(3). Also, under
Rule 404(b)(1), “[e]vidence of a crime, wrong, or other act is not admissible to prove
a person’s character in order to show that on a particular occasion the person acted
in accordance with the character.” Id. 404(b)(1). Exceptions to this rule include
admission of the evidence “for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” Id. 404(b)(2).
When character evidence is admissible, opinion testimony and testimony as
to a person’s reputation are generally the only forms of evidence admissible to prove
character, except when the character of a person is an essential element of a charge,
claim, or defense; proof may then be made of specific instances of conduct. EVID.
405; Evans v. State, 876 S.W.2d 459, 463–64 (Tex. App.—Texarkana 1994, no pet.).
And, when character evidence has been admitted, evidence of specific instances of
conduct is allowable in rebuttal. EVID. 405; Evans, 876 S.W.2d at 463–64.
2. Application of the Law to the Facts
Before trial, the State filed a written motion in limine pursuant to Texas Rules
of Evidence 405 and 608. That motion requested, in part, that until there was a
hearing outside the presence of the jury to determine the admissibility of the
1
Rule 412 addresses the admissibility of evidence of previous sexual conduct in criminal cases.
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evidence, the defendant refrain from mentioning with respect to the State’s witnesses
any prior criminal record, the witness’s character or reputation, or any specific
instances or acts of conduct for the purpose of attacking or supporting the witness’s
credibility. However, the record does not show that a hearing was held or that the
trial court ruled on the motion. Also, before trial, defense counsel made an oral
motion in limine with respect to all extraneous evidence subject to Rule 404(b), the
State agreed without reference to its pending written motion in limine, and the trial
court granted the defendant’s motion. No hearing with respect to the admissibility
of Morgan’s prior criminal history or other bad acts was held prior to the parties’
opening statements.
After the State presented its opening statement, defense counsel made his
opening statement. During the defendant’s opening statement, the State objected to
defense counsel’s comment that Morgan had a history of bullying smaller people
and drug use on the basis that it was improper character evidence as follows:
Defense Counsel: According to other witnesses at the scene,
however, independent witnesses, the
shooter was wearing . . . Mr. Morgan, the
man who habitually picks on those weaker
than he is, smaller than he is, who
habitually uses drugs, claims that—
State: Your Honor, I’m going to object. This is
inadmissible character in opening.
Trial Court: Sustained.
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(Emphasis added.) The State did not request an instruction for the jury to disregard
the statement.
Character evidence is generally inadmissible unless it meets an exception to
the rule. See EVID. 404. When the State objected to Taylor’s opening statement on
the basis that it referred to inadmissible character evidence, Taylor did not identify
an applicable exception to the character evidence rule. See Atilano, 2018 WL
2107239, at *6. Further, prior to the parties’ opening statements, the trial court ruled
on the defendant’s motion in limine concerning “404(b)” evidence and granted that
motion. While a ruling on a motion in limine is not a ruling on admissibility, the
ruling indicated that the admissibility of the evidence relating to other crimes,
wrongs, or bad acts was questionable. Consequently, defense counsel could not in
good faith raise those facts during his opening statement, as he could not reasonably
have “expected” to prove those facts during trial. See Enrique, 2009 WL 3400988,
at *3.
We conclude the trial court did not abuse its discretion when it sustained the
State’s inadmissible character evidence objection to defense counsel’s discussion of
the evidence in his opening statement. The first part of issue two is decided against
Taylor.
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D. Objections to the Statement that the Victim was Reluctant to Testify
Second, we address the part of Taylor’s second issue arguing the trial court
erred when it sustained the State’s objections to the portion of his counsel’s opening
statement that indicated Morgan was reluctant to testify because it was not improper
“character evidence.” The State responds that the trial court properly sustained its
speculation objection.
1. Applicable Law–General Forecast of Defense’s Theory and Evidence
As we previously noted, the purpose of an opening statement is to
communicate to the jury a party’s theory of the case in order to help the jury evaluate
the evidence as it is being presented. Guillory, 397 S.W.3d at 868; Fisher, 220
S.W.3d at 603; Abney, 1 S.W.3d at 274–75. In contrast, the purpose of closing
argument is to facilitate the jury in properly analyzing the evidence presented at trial
so that it may arrive at a just and reasonable conclusion based on the evidence.
Milton v. State, 572 S.W.3d 234, 239 (Tex. Crim. App. 2019). Although courts and
parties sometimes refer to an “opening statement” as “opening argument,” an
opening statement is not an opportunity for the parties to argue the case.
The trial court has the discretion to foreclose counsel from presenting jury
argument during opening statements. Sue, 105 S.W. at 806 (trial court did not err in
sustaining objection that defense counsel’s opening statement was argumentative);
see also Moore, 868 S.W.2d at 793 (it is not error for trial court to preclude defendant
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from making argumentative and prejudicial remarks in his favor during his opening
statement); Donnell, 191 S.W.3d at 867 (trial court did not err in sustaining State’s
argumentative objection to defense counsel’s opening statement that defendant
relying on defense of “not guilty”); Atiliano, 2018 WL 2107239, at *6 (holding
defendant’s discussion of evidence during opening statement that emphasized things
as going “on and on” and “important” was jury argument rather than mere preview
of evidence).
2. Application of the Law to the Facts
We note that Taylor combines this argument with his argument relating to the
trial court’s ruling with respect to his opening statements regarding Morgan’s
bullying and drug use and refers only to the State’s “inadmissible character”
objection. Taylor does not mention the trial court’s ruling as to the State’s objections
that defense counsel’s opening statement that Morgan was reluctant to testify was
conclusory, speculative, and argumentative. The entirety of Taylor’s argument on
appeal with respect to his statement that Morgan was unwilling to testify is: “The
defense also attempted to preview evidence in its opening statement that [] Morgan
did not want to testify in the case. During his testimony [] Morgan admitted that he
did not want to testify. He informed the jury that the State made him testify.” (record
citations omitted.). An appellant must attack all independent grounds supporting a
trial court’s ruling. See State v. Hoskins, No. 05-13-00416-CR, 2014 WL 4090129,
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at *2 (Tex. App.—Dallas Aug. 19, 2014, no pet.) (not designated for publication);
Marsh v. State, 343 S.W.3d 475, 479 (Tex. App.—Texarkana 2011, pet. ref’d).
Nevertheless, even if we broadly construe his argument to encompass the trial
court’s rulings on the State’s conclusory, speculative, and argumentative objections,
we still conclude the trial court did not err. The record shows the State made the
following objections to this portion of his opening statement:
Defense Counsel: Furthermore, as soon as Morgan was
contacted about testifying in this case, he
decided he wanted nothing to do with it.
See, when someone started asking him
tough questions—
State: Your Honor, I’m going to—again, this is
speculation. We have no one here to
attest to this. It’s also argumentative and
conclusive.
Trial Court: Sustained.
(Emphasis added.) Again, the State did not request an instruction for the jury to
disregard the statement.
Taylor’s opening statement about Morgan’s reluctance to testify emphasized
the timing—as soon as he was contacted—and the reason—someone started asking
him tough questions. These statements amounted to more than a preview of the
evidence; they were argumentative. See Atilano, 2018 WL 2107239, at *6.
We conclude the trial court did not abuse its discretion when it sustained the
State’s objection to defense counsel’s statement as argumentative. Accordingly, we
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need not address the trial court’s ruling with respect to the State’s objections that
defense counsel’s opening statement was conclusory and speculative. The second
part of issue two is decided against Taylor.
III. MODIFICATION OF THE JUDGMENT
In issue one, Taylor argues the judgment should be modified to correctly
reflect that he pleaded not guilty. The State agrees that Taylor pleaded not guilty
and the trial court’s judgment is incorrect. And the record shows that Taylor pleaded
not guilty.
An appellate court has the authority to modify an incorrect judgment to make
the record speak the truth when it has the necessary information to do so. See TEX.
R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993);
Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d) (en
banc). We conclude the trial court’s final judgment should be modified to correctly
state that Taylor pleaded not guilty to the offense. Accordingly, the judgment is
modified as follows: (1) “Plea to Offense: Guilty” is modified to read “Plea to
Offense: Not Guilty.” See TEX. R. APP. P. 43.2(b); Bigley, 865 S.W.2d at 27–28;
Asberry, 813 S.W.2d at 529–30.
Issue one is decided in Taylor’s favor.
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IV. CONCLUSION
The trial court did not err when it sustained the State’s objection to portions
of defense counsel’s opening statement. Also, the judgment should be modified to
correctly reflect that Taylor pleaded not guilty.
As modified, the trial court’s judgment is affirmed.
/Leslie Osborne//
LESLIE OSBORNE
JUSTICE
190671f.u05
Do Not Publish
TEX. R. APP. P. 47
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
RODRICK ONEALL TAYLOR, On Appeal from the 363rd Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. F-1875219-W.
No. 05-19-00671-CR V. Opinion delivered by Justice
Osborne. Justices Schenck and
THE STATE OF TEXAS, Appellee Partida-Kipness participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
“Plea to Offense: Guilty” is modified to read “Plea to Offense: Not
Guilty.”
As REFORMED, the judgment is AFFIRMED.
We DIRECT the trial court to prepare a corrected judgment that reflects this
modification.
Judgment entered this 24th day of August, 2021.
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