in Re Dionel Ruiz and Renee Bonfiglio Ruiz ( 2000 )

In re Dionel Ruiz and Renee Bonfiglio Ruiz

  IN THE

TENTH COURT OF APPEALS

No. 10-00-174-CV

IN RE DIONEL RUIZ

AND RENEE BONFIGLIO RUIZ

ORIGINAL PROCEEDING

DISSENTING OPINION

      Because the Ruizes have an adequate remedy by appeal, I disagree with the conditional grant of the writ of mandamus. The requirement that mandamus will not issue where there is an adequate remedy by appeal is well-settled. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Mandamus is intended to be an extraordinary remedy, available only in limited circumstances and will issue only in situations involving manifest and urgent necessity. Id. An exception to the “adequate remedy by appeal” requirement of Walker was recognized by the Texas Supreme Court in Proffer. The Court observed,

Parents and children who have a right under the mandatory venue provision to venue in a particular county should not be forced to go through a trial that is for naught. Justice demands a speedy resolution of child custody and child support issues.

Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987) (emphasis added).

      In Proffer, the parent and child had moved to another jurisdiction and the court of original jurisdiction was required to transfer the case to the new jurisdiction. The thrust behind the Proffer exception is avoidance of an unnecessary trial in child custody cases. In the cases in which this court has cited Proffer for allowing the parties to pursue relief by mandamus, we were likewise avoiding an unnecessary trial. See In re Verbois, 10 S.W.3d 825 (Tex. App.—Waco 2000, orig. proceeding); In re Bishop, 8 S.W.3d 412 (Tex. App.—Waco 1999, orig. proceeding); In re Simonek, 3 S.W.3d 285 (Tex. App.—Waco 1999, orig. proceeding); In re Sanchez, 1 S.W.3d 912 (Tex. App.—Waco 1999, orig. proceeding). However, in this case, there has already been a trial. The jury has already determined that the Ruizes’ parental rights should be terminated. The trial court has already signed an order of termination. The reason for allowing relief by mandamus simply does not exist in this case.

      The order based on the jury’s verdict was signed by the trial court five days before the Ruizes filed their mandamus action. They have not demonstrated any reason that they do not have an “adequate remedy by appeal” as required by Walker. They have an adequate remedy by appeal, and therefore, this mandamus should be denied.

                                                                         TOM GRAY

                                                                         Justice

Dissenting opinion delivered and filed May 25, 2000

Publish

ight, the denial of which constitutes error. See id.; Farrar, 784 S.W.2d at 55; Caraway v. State, 417 S.W.2d 159, 161 (Tex.Crim.App. 1967); Crew v. State, 387 S.W.2d 898, 899 (Tex.Crim.App. 1965). We find that Boston did not waive or forfeit his right to make an opening statement by failing to do so after the State presented its evidence. See Arriaga, 804 S.W.2d at 274. Once the State presented its evidence, the right of Boston to present an opening statement was lost, not abandoned or waived.

      Having found the court's refusal to allow Boston to make an opening statement before the State's presentation of evidence to be error, we must now consider whether it was harmless. See Tex. R. App. P. 81(b)(2). In determining whether the error requires reversal, we are guided by Harris v. State, 790 S.W.2d 568 (Tex.Crim.App. 1989). First, we must isolate the error and all its effects, and second, ask whether a rational trier of fact might have reached a different result if the error and its effects had not resulted. See id. at 587-88.

      The State contends that Boston was allowed to state his overall defense position, which purported that he committed theft and not robbery, by mentioning that position in his voir dire examination of the panel. However, the State does not contend that voir dire is a substitute for opening argument. Even though the defensive position was mentioned to the jury panel, the facts later relied on by Boston, when he testified in his own defense, never got before the panel during voir dire. Article 36.01(a)(5) specifically allows a defendant in his opening statement to tell the jury the defenses relied upon and the facts expected to be proved. Here, Boston was precluded from telling the jury those facts and thus the jury could not relate that posture to the his cross-examination of the State's only witness.

      We find that the error was of such magnitude that it disrupted the juror's orderly evaluation of the evidence. By not being allowed to state the nature of the defense relied upon and the facts expected to be proved in their support before the State presented its evidence, Boston was not able to have the jury evaluate the State's evidence in the context of the defense position as that evidence was being heard. We cannot conclude beyond a reasonable doubt that the error made no contribution to the conviction based on the principles in Harris. Boston's point of error is sustained.

      We reverse the judgment and remand the case.

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

          (Thomas, C.J., dissenting)

Reversed and remanded

Opinion delivered and filed July 8, 1992

Publish